Bangalore District Court
Lokayukta Police Inspector vs No.1: Ravi.G. S/O.Garudaiah @ ... on 12 July, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 12th day of July 2018
Spl.C.C. No.430/2015
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED NO.1: Ravi.G. S/o.Garudaiah @ Garudappa,
Aged about 38 Years,
Police Constable - 8596,
Nandini Layout Police Station,
Bengaluru City.
R/o.No.85/2, Sunkadakatte,
Heggenahalli Main Road,
Bengaluru - 91.
(By Sri. P.N.Hegde, Advocate)
ACCUSED NO.2: G.Gangarajaiah,
S/o Ganga Narasimhaiah,
Aged about 54 years,
Assistant Police Sub-Inspector,
Nandini Layout Police Station,
Bengaluru City.
2 Spl.C.No.430/2015
R/o.28, 4th Main Road, 4th 'C' Cross,
Vinayaka Nagar, Kamakshipalya,
Magadi Main Road,
Bengaluru-79.
(By Sri. K.B.K.Swamy - Advocate.)
Date of commission of
offence 23-07-2013
Date of report of occurrence 25-07-2013
Date of arrest of Accused No.1: 13-08-2013
. " Accused No.2: 25-07-2013
[
Date of release of A.1 on bail: 13-08-2013
. " A.2 on bail: 26-07-2013
Date of commencement of 10-08-2017
evidence
Date of closing of evidence 09-04-2018
Name of the complainant Sri.Ramachandra
Offences complained of
U/s 7, 13(1)(d)
r/w/s 13(2) of PC
Act, 1988.
Opinion of the Judge ACQUITTED
Date of Judgment: 12-07-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru has filed this charge sheet against accused Nos.1 and 2 for the offences punishable under Sections 7, 13(1)(d) 3 Spl.C.No.430/2015 r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. The brief facts of the prosecution case is as under:-
The accused No.1- Ravi. G. is Police Constable and accused No.2- G.Gangarajaiah is Assistant Sub-Inspector of Police and both are working in Nandini Layout Police Station, Bengaluru and both of them are public servants. On 23.7.2013, when Complainant- Ramachandra was coming on two-wheeler Honda Activa bearing Registration No.KA02/HU-
1039, two police officials came in Cheetah vehicle and stopped complainant and asked for records and complainant gave vehicle records and informed that he is not having driving licence and then, one official asked complainant to give Rs.500/- and another asked him to give Rs.200/- and as complainant was not having money, they have taken his mobile and asked him to bring Rs.500/- within 10 minutes. Thereafter, on 24.07.2013 complainant went to Lokayukta Police and informed about he incident. They gave him voice recorder and asked him to record the conversation. Accordingly, he went to Police Station and found A.S.I. and enquired about Ravi and informed about the incident that took place on 23.7.2013 and A.S.I. asked him to pay the amount and ASI called Ravi and they returned mobile but as complainant had not brought 4 Spl.C.No.430/2015 amount they have taken key of his two-wheeler and asked him to bring Rs.200/- and also informed that case is registered. Complainant recorded this conversation and gave complaint on 25.7.2013 along with voice recorder containing conversation. On receiving this complaint, Lokayukta Police Inspector registered the case in Crime No.47/2013 and submitted F.I.R. to the Court. Lokayukta Police Inspector secured panchas and made all arrangements to trap the accused and on the same day between 4.30 p.m. to 5.05 p.m, in Nandini Layout Police station when accused No.2 received tainted notes of Rs.200/- from complainant, accused No.2 was caught. Tainted notes were seized. Accused No.2 was arrested and thereafter produced before the Court. Investigating Officer continued investigation and as offence is found to have been committed by both accused Nos.1 and 2, he obtained prosecution sanction order and then filed charge sheet.
3. Cognizance of offences is taken by this court. Accused have appeared before the Court and are enlarged on bail. Copies of prosecution papers are furnished to accused No.1 and 2. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against both the accused and read over to them. They have pleaded not guilty and claimed to be tried.
5 Spl.C.No.430/20154. In support of the prosecution case, P.Ws 1 to 9 are examined. Documents as per Exs.P.1 to P.29 are marked and MOs 1 to 15 are also marked.
5. After completion of prosecution side evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and accused have denied the incriminating evidence appearing against them. Accused have not chosen to lead any defence evidence on their behalf. In the cross-examination of P.W.1, Ex.D.1 is got marked for the defence.
6. Heard the arguments and perused the records.
7. Now, the points that arise for my consideration are:-
POINTS
1) Whether the prosecution proves beyond all reasonable doubt that accused No.1 being public servant working as Police Constable in Nandini Layout Police Station, on 23.7.2013 at about 4 p.m. when C.W.1 - Ramachandra was going on his Honda Activa bearing No. KA02/HU-1039 has stopped him and demanded Rs.500/- for not showing Driving Licence to ride the vehicle and again on 24.7.2013 at about 3 p.m. in Nandini Layout Police Station, accused No.2 being a public servant working as Assistant Sub-
Inspector of Police in Nandini Layout Police Station talked to C.W1 and he along with accused No.1 demanded bribe amount of 6 Spl.C.No.430/2015 Rs.200/- from C.W.1 for not producing D.L. and thereafter on 25.7.2013 between 4.30 p.m. to 5.05 p.m. in Nandini Layout Police Station accused No.2 for himself and on behalf of accused No.1 has demanded and received Rs.200/- as illegal gratification other than legal remuneration from C.W.1 as a motive or reward for not registering the case for driving vehicle without having Driving Licence and thereby both accused No.1 and 2 have committed offence punishable u/s 7 of Prevention of Corruption Act?
2) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 and 2 being public servants working as Police Constable and Assistant Sub-Inspector of Police, respectively, in Nandini Layout Police Station have demanded bribe of Rs.200/- and on 25.7.2013 between 4.30 p.m. to 5.05 p.m. by corrupt or illegal means or by abusing their position as public servant, accused No.2 for himself and on behalf of Accused No.1 has obtained pecuniary advantage of Rs.200/-
without public interest from complainant and thereby committed offence of criminal misconduct which is an offence u/s 13(1)(d) of Prevention of Corruption Act, punishable u/s 13 (2) of Prevention of Corruption Act?
3) What order ?
8. My findings on the above points are :-
Point No.1 : In the Negative.
Point No.2 : In the Negative 7 Spl.C.No.430/2015 Point No.3 : As per final order, for the following:
REASONS
9. Points No.1 and 2: Since both these points are interlinked with each other, they are taken up together for discussion to avoid repetition.
10. To prove the charge against accused No.1 and 2 for offences punishable under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has examined 9 witnesses as P.Ws. 1 to 9. P.W.1 - Ramachandra is the complainant. P.W.4 - Lokesh is person who had accompanied complainant to Lokayuktha office and participated in trap proceedings. P.W.2- Puttegowda is the shadow witness and P.W.3 - Venkatesh.N. is another panch witness. P.W.5 - K.V.Venkatesh is higher officer of accused who is said to have identified the voice of accused in the recordings. P.W.6 - Vijaya Hadagali is also higher officer of accused. P.W.7 - B.A.Kusuma is the Woman Head Constable in Karnataka Lokayuktha, who has copied sample voice recordings of accused recorded by the I.O. to the C.D. through computer and typed voice recording mahazar. P.W.8 - Anil Kumar.B. and P.W.9 - Manjunath.M. are the Police Inspectors of Karnataka Lokayuktha, City Division, Bengaluru and are Investigating Officers in this case.
8 Spl.C.No.430/201511. On behalf of prosecution, documents at Exs.P.1 to P.29 are marked. Ex.P.1 is complaint and Ex.P.14 is the F.I.R. Pre-trap and trap mahazar are marked as Exs.P.2 and P.3 respectively. The details of currency notes noted on a sheet is marked as Ex.P.4. Transcription of conversation dated 24.7.2013 is marked as Ex.P.5 and transcription of recordings at the time of trap is marked as Ex.P.19. Acknowledgment given for receiving metal seal and sample seal are marked as Ex.P.6 and Ex.P.20. The written explanation of accused No.2 and accused No.1 are respectively marked as Ex.P.7 and 22. Prosecution Sanction Orders are marked as Exs.P.8 and P.9 with consent. Ex.P.10 is Statement of P.W.4. Report of P.W.5 is marked as Ex.P.11. Ex.P.12 is Report of P.W.6. Sample Voice Recording Mahazar is marked as Ex.P.13. Copy of SHD is marked as Ex.P.15. Ex.P.16 is the copy of Petty Case Register and Ex.P.17 is copy of Centry Register. Ex.P.18 is Rough Sketch. Certificate given under Section 65B of Indian Evidence Act is marked as Ex.P.21. Report of P.W.12 is marked as Ex.P.23. FSL Report is marked as Ex.P.24. Service details of accused No.2 is marked as Ex.P.25. The sketch given by P.W.8 is marked as Ex.P.26. Statement of P.W.2 is marked as Ex.P.27. The acknowledgment given by FSL and Report of FSL with regard to voice identification are marked as Ex.P.28 and 29.
9 Spl.C.No.430/2015M.O.1 to 15 are also marked for prosecution. Metal Seal is marked as M.O.1. Cash is marked as M.O.2. Bottles containing solution taken at different stages are marked as M.O.3 to P.7. C.Ds are marked as M.Os.8 to 15. In the course of cross- examination of P.W.1, Police Notice, which was seized during trap proceedings was confronted to the witness and marked as Ex.D.1 for accused.
12. As per the prosecution case, P.W.1-complainant gave complaint as per Ex.P.1 before P.W.8 stating that on 23.7.2013 when he was going in his two-wheeler Honda Activa No.KA02/HU-1039, two police officials, among whom one person is Ravi have stopped him and asked him to pay Rs.500/- and one person asked him to bring Rs.200/- and as PW1 was not having amount, they took his mobile and asked him to come within ten minutes and as PW1 was not interested to pay bribe, he went to Lokayukta Police and they asked him to record the conversation and gave voice recorder and on 24.7.2013 complainant went to Nandini Layout Police Station, wherein A.S.I. was present and PW1 informed about demand of amount by another police official on the previous day and then A.S.I. secured Police Constable - Ravi and they again reiterated demand for Rs. 200/- and have returned mobile and took key of two wheeler of P.W.1 and this conversation was recorded in 10 Spl.C.No.430/2015 voice recorder. Thereafter, along with voice recorder, on 25.7.2013 complainant gave complaint to Lokayukta Police. On receiving Ex.P.1, P.W.8 registered the case in Crime No.47/2013 and secured two panchas - P.Ws 2 and 3 and P.W.4 had also come with PW1. PW1 was introduced to them and P.Ws 2 and 3 ascertained veracity of complainant from P.W.1 and P.W.1 produced Rs.200/- in denomination of Rs.100x2 and serial numbers of the currency notes were noted down on Ex.P.4 and then phenolphthalein powder was applied to currency notes and P.W.3 after verifying the notes again, kept it in left side shirt pocket of P.W.1 and thereafter hands of P.W.3 were washed in Sodium carbonate solution and solution turned to pink colour and it was seized in bottle. The digital voice recorder produced by the complainant was played before panchas, in which there was conversation demanding bribe and contents were transmitted to C.D. and also transcribed as per Ex.P.5 and signatures were taken. The C.D. of conversation is produced as M.O.9. P.W.1 was instructed to meet accused in Nandini Layout Police Station and to give tainted notes only in case of demand and to give signal by wiping face with kerchief and button camera and voice recorder were also given to complainant. P.W.4 - friend of complainant was asked to go as a shadow witness, but as he refused, P.W.2 was asked to 11 Spl.C.No.430/2015 follow complainant as shadow witness and to watch the happenings and to report later. Pre-trap mahazar was prepared as per Ex.P.2 and signatures were taken and it was also vedeographed.
13. It is further case of the prosecution that, after following pre-trap procedures, they proceeded towards Nandini Layout Police Station and vehicle was stopped at a distance and P.Ws 1 and 2 were sent to Police Station after reminding instructions given earlier. Accused No.2 was present in the Police Station and enquired about work of PW1 and then informed that accused No.1 will come later and therefore, P.Ws 1 and 2 waited for accused No.1 outside the Police Station. Even after one hour, accused No.1 has not come and accused No.2 called PW1 inside by signal and P.Ws 1 and 2 again went inside the Police Station and accused No.2 took signatures on the notice which is Ex.D.1 and took Rs.200/- tainted notes from P.W.1 and warned him against driving vehicle without driving license. Then immediately P.W.1 gave signal to trap team and immediately P.W.8 along with his team came inside the station and surrounded accused No.2 and followed trap procedure. Hands of accused No.2 were washed in sodium carbonate solution and right hand wash turned to light pink colour and left hand wash has not changed colour. On search of accused 12 Spl.C.No.430/2015 No.2, tainted notes were found in his purse, which was kept in his pant packet and purse and also tainted notes were seized and notice - Ex.D.1 was also seized and documents like SHD, centry book, petty case register are also seized from the station. The complainant produced pen camera and voice recorder and they were played and recordings were transmitted to C.Ds as per M.O.11 and 12. These recordings, C.Ds were played before P.W.5 - P.S.I. and he heard the conversation and identified the voice of accused and gave report as per Ex.P.11. Trap proceedings were vedeographed and then transmitted to C.D. On questioning, accused No.2 gave written explanation as per Ex.P.7 and trap mahazar was prepared as per Ex.P.3 and accused No.2 was arrested and produced before the Court. P.W.8 continued investigation. Accused No.1 appeared before P.W.8 with anticipatory bail and he has taken written explanation of accused No.1 as per Ex.P.22. On transfer of P.W.8, P.W.9 continued investigation and prepared final report and submitted the same for seeking Prosecution Sanction Order and received Prosecution Sanction Orders as per Exs.P.8 and 9. Thereafter, P.W.9 got recorded sample voice of both accused No.1 and 2 by drawing mahazar as per Ex.P.13 and got transmitted the recordings to CDs as per M.O. 14 and 15 and sent the same to Forensic Science Laboratory along with 13 Spl.C.No.430/2015 M.O.9,11 and 12 for voice identification and received the Report as per Ex.P.29. per , he has filed charge sheet.
14. P.W.1 - complainant in his evidence has stated about two police officials stopping his vehicle and demanding Rs.500/- for not having D.L. and he recording conversation in Nandini Layout Police Station on 24.7.2013. He has also stated that in his conversation with A.S.I. and Ravi, they asked him to pay Rs.200/- and to take back the vehicle. PW1 has stated about pre-trap proceedings followed in Lokayuktha office in the presence of two panchas and also stated about he visiting Police Station along with P.W.2 - Puttegowda. PW1 has generally supported the prosecution case but has not identified accused No.1 G Ravi before the Court. He has stated that button camera was affixed to his shirt and later he came to know that it was not working. He has stated about giving tainted notes to Accused No.2 in Nandini Layout Police Station and has stated that accused No.2 gave him notice as per Ex.D.1 and asked him to give amount and told that he will talk to Ravi. He has also stated about further proceedings followed in the Police Station and also stated about preparing of trap mahazar and he signing the same. In his cross-examination, he has admitted that he was not knowing names of police officials who had stopped his vehicle and he was not knowing 14 Spl.C.No.430/2015 name of Assistant Sub-Inspector, whom he met on 24.7.2013 and talked to him. PW1 has admitted that A.S.I. told him that he have to pay fine as was driving without D.L. and informed that petty case is registered against him and also admitted that he paid Rs.200/- as fine. PW1 has admitted that on 24.7.2013 when he went to Nandini Layout Police Station with voice recorder, accused No.2 was not present in Police Station and admitted that accused No.2 was not aware of conversation held between complainant and other police officials with regard to vehicle and has even admitted that accused No.2 had not demanded any bribe.
15. P.W.4 Lokesh, who is stated to be friend of complainant, has not supported the case. Moreover his name is not mentioned in Ex.P.1 or in the evidence of PW1 to 3, but is appearing in Ex.P.2 pre-trap mahazar. He has stated that he had accompanied PW1 to Lokayukta Office and in Lokayuktha office voice recorder was given to PW1 and then PW1 went to record the conversation. He has stated that he does not know the name of police officials who demanded bribe from PW1.
16. P.W.2-Puttegowda, shadow witness has stated regarding Pre-trap proceedings and also stated that he was asked to accompany complainant as a shadow witness and has stated that he went with complainant to the Police Station and 15 Spl.C.No.430/2015 they met accused No.2 and then they waited for accused No.1 outside the Police Station and when complainant went inside the station for the second time he had not gone. He has stated that he was not present when tainted notes were given by PW1 to accused No.2. Therefore, regarding giving of tainted notes this witness has not supported prosecution case. The witness has also denied that he has participated in sample voice recording mahazar as per Ex.P.13. This witness was treated as hostile and was cross examined by learned Public Prosecutor, but nothing in support of prosecution case is elicited from him.
17. Another panch witness, P.W.3 Venkatesh N has supported the prosecution case and has stated about pre-trap proceedings and also his participation in the trap proceedings and has stated that he was with the Lokayukta Police Inspector at the time of trap and after getting signal from complainant, they entered Police Station and followed procedures. He has stated that he has taken out the purse of accused No.2 from his pocket and found Rs.200/- in the purse. He has produced the metal seal which was given to him during trap proceedings and it is marked as M.O.1.
18. P.W.5 - Venkatesh, P.S.I. has stated that audio recordings were played before him and one voice in the recordings was appearing to be that of A.S.I. Gangaraju and 16 Spl.C.No.430/2015 accordingly, he has given report as per Ex.P.11. He has denied that video recordings were also played before him. In his cross-examination, he has stated that conversation which he has heard was of about 15 seconds. He has admitted that in page 56 of the charge sheet which is portion of SHD marked as Ex.P.15, A.S.I. (GR) refers to accused No.2 and admitted that on 24.7.2013 accused No.2 had taken leave and had not attended the duty and also stated that when he went to the Police Station on 25.7.2013 he came to know that a case has been registered against complainant for offence punishable under Section 92(f) of K.P.Act. P.W.6 - Vijay Hadagali Police Inspector has stated that regarding two-wheeler Honda Activa bearing registration No. KA02/HU-1039, no case was registered in Nandini Layout Police Station and he has given report as per Ex.P.12.
19. P.W.7 -Smt. B.A.Kusuma Woman Head Constable has stated about typing some sentences extracted from conversation already recorded as per instructions of Lokayukta Police Inspector and also stated that she has copied sample voice recorded in voice recorder by I.O. to C.D. and she has typed the voice recording mahazar Ex.P.13.
20. P.W.8 -Anil Kumar, I.O. has stated about investigation done by him including registration of the case. In 17 Spl.C.No.430/2015 his cross-examination, he has admitted that in Ex.P.15, on 24.7.2013 accused No.2 is shown as on leave. Witness has further stated that writing in SHD at 8.45 p.m. show that accused had resumed duty on the same day. He has stated that he has not taken duty chart to ascertain whether Accused No.2 working on 24.7.2013. P.W.9- Manjunath, subsequent I.O., has stated about obtaining Prosecution Sanction Order and thereafter recording sample voice of accused No.1 and 2 and then transmitting the same to C.Ds as per M.Os 14 and 15 and then sending the same to F.S.L. for voice identification with other C.Ds stated to be containing voice of accused No.1 and 2 and has stated that he has received the report as per Ex.P.29. In his cross-examination, he has stated that in respect of C.Ds at M.Os 14 and 15, he has not obtained any certificate under Section 65B of Indian Evidence Act.
21. In order to bring home the guilt of accused for the offences under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution have to prove that accused No.1 and 2, being public servants have demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing official act or for doing official favour. On proof of demand and acceptance, presumption can be drawn to the effect that such illegal 18 Spl.C.No.430/2015 gratification is demanded and accepted as a motive or reward as mentioned in Section 7 of P.C.Act. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established.
22. In this case after preparing final report, P.W. 9 has secured Prosecution Sanction Order against both accused No.1 and 2. The Prosecution Sanction Orders against accused No.1 and 2 are marked with consent as Exs.P.8 and P.9. Therefore, there is no dispute about obtaining valid sanction from competent authority to prosecute accused No.1 and 2 in this case.
23. As held in various decisions of Hon'ble Supreme Court including decision reported in (2015) 11 SCC 314, (C.Sukumaran /vs/ State of Kerala), for the offence under Section 7 and 13(1)(d) of Prevention of Corruption Act, the demand of illegal gratification by the accused is sine-qua-non. Therefore, unless demand of bribe by accused is proved, prosecution will not be successful in proving the commission of offence under Sections 7 and 13(1)(d) of Prevention of Corruption Act.
24. As per the prosecution case, before giving Ex.P.1 complaint and even at the time of Trap there was demand of illegal gratification by accused No.1 and 2. To prove demand 19 Spl.C.No.430/2015 of bribe amount prior to giving complaint, prosecution have to rely on the evidence of complainant - P.W.1 and his friend P.W.4 and also on alleged recording of conversation between PW1 and accused on 24.7.2013, which is stated to have been recorded in voice recorder by PW1 and then transmitted to C.D. during pre-trap proceedings as per M.O. 9 and then transcribed as per Ex.P.5. Even at the time of trap, accused No.2, who was present in police station, is stated to have demanded bribe amount of Rs.200/- and then received the same. As per the prosecution case, on 23.7.2013, PW1 was stopped by two police officials and name of one of the official was Ravi and name of another official is not mentioned in complaint and is not traced even in the course of investigation. P.W.8 - Investigating Officer has stated that he could not trace another police official who was with Ravi. It is not mentioned in the complaint that Ravi has demanded amount from P.W.1 on 23.07.2013. The official Ravi G is shown as accused No.1 in this case. P.W.1 who had mentioned name of Ravi in Ex.P.1- complaint, has clearly stated that he do not know accused No.1 who was present before the court on the day of his evidence. Therefore, P.W.1 has not identified accused No.1 as Ravi who had stopped his vehicle on 23.7.2013 with another police official and who spoke to him on 24.7.2013 in Nandini Layout 20 Spl.C.No.430/2015 Police Station. Admittedly, on 23.7.2013, alleged conversation between P.W.1 and two police officials was not recorded. On 24.7.2013, P.W.1 is said to have met P.W.4 and along with him went to Lokayukta Police and they gave him Voice Recorder and then he came to police station and recorded conversation with ASI and also police official - Ravi. Since, PW1 has not identified Accused No1 as Ravi who stopped him and demanded amount, whether Ravi referred by PW1 in Ex.P.1 and in recorded conversation, is the same Ravi. G. who is accused No.1 in this case is not clear. P.W.4 who is stated to have accompanied PW1 to Lokayukta office and then to Nandini Layout Police Station for recording conversation has not supported prosecution case. Hence, by the evidence of P.W.1 and 4, demand of bribe by accused No.1 either on 23.7.2013 or on 24.7.2013 is not proved.
25. As against accused No.2, in Ex.P.1 it is mentioned that on 24.7.2013 P.W.1 went to Nandini Layout Police Station with voice recorder and A.S.I. present there has enquired him and secured Ravi and then they told that petty case is registered and Rs.200/- is to be paid. In Ex.P.1, name of A.S.I. is not mentioned. Though P.W.1 in his chief evidence has identified accused No.2 and stated that on 24.7.2013 he talked to him, in his cross-examination, he has clearly admitted that 21 Spl.C.No.430/2015 on 24.7.2013 when he went to the police station, accused No.2 was not present in police station. He has even admitted that accused No.2 was not aware of conversation held between himself and other police officials with regard to vehicle and also admitted that accused No.2 has not demanded bribe amount. Therefore, according to P.W.1, accused No.2 has not made any demand for bribe. P.W.1 has admitted that on 24.7.2013 accused No.2 was not present in the Police station. Absence of accused No.2 in the police station is even substantiated by Ex.P.15 Station House Diary, in which (at page 56 of charge sheet) on 24.7.2013 A.S.I.(G.R.) is shown as on leave. P.W.5 has admitted that on 24.7.2013 accused No.2 was on leave. Evidence of P.W.5 and Ex.P.15-SHD clearly show that on 24.7.2013 accused No.2 was on leave and this corroborates with admission of P.W.1 that on 24.7.2013, accused No.2 was not in Police station. Even P.W.8 - Investigating Officer has admitted that in SHD it is mentioned that accused No.2 was on leave on 24.7.2013, but has stated that at 8.45 p.m. accused No.2 came to duty and he has made writing in S.H.D. This evidence of P.W.8 is not supported by any investigation in this behalf. Even P.W.5 - P.S.I. or Police Inspector-P.W.6 of Nandini Layout Police station have not stated that accused No.2 though had taken leave on 24.7.2013 he had later joined duty 22 Spl.C.No.430/2015 on the same day. Therefore, the admission of P.Ws.1, 5 and 8 and also Ex.P.15 show that on 24.7.2013 accused No.2 was on leave, when P.W.1 went there to record conversation. Moreover, Ex.P.1 - complaint refers to one Assistant Sub- Inspector and name of accused No.2 is not mentioned there. Admittedly, there are 8 A.S.I. posts in Nandini Layout Police Station. On looking to these aspects, demand of bribe by accused No.2 on 24.7.2013 is doubtful. Apart from this, P.W.1 has clearly admitted in his cross-examination that accused No.2 has not demanded any bribe and was not aware of conversation between P.W.1 and other police officials with regard to the vehicle. Apart from this, P.W.1 in his cross- examination has clearly admitted that even on the trap day, accused No.2 has received Rs.200/- as fine amount and he has given Ex.D.1-Notice. Therefore, evidence of P.W.1 does not prove demand of bribe by accused No.2 on 24.7.2013 and even on day of Trap.
26. Since evidence of P.W.1 and 4 do not help the prosecution to prove alleged demand of bribe by accused No.1 and 2, only other evidence on which prosecution can rely to prove demand of bribe is, audio conversation alleged to have been recorded by P.W.1 on 24.7.2013 in voice recorder. Even for this, evidence of P.Ws.1 and 5 would show that accused 23 Spl.C.No.430/2015 No.2 was not present in the station and conversation recorded may be of any Assistant Sub-Inspector as name of accused No.2 is not mentioned in Ex.P.1 or in transcription sheet- Ex.P.5. As per prosecution case, voice recorder conversation was transmitted to C.D. during pre-trap proceedings and C.D. was seized as per M.O.9. Even the recordings in voice recorder and button camera given to P.W.1 at the time of Trap are stated to have been transmitted to C.D as per M.O. 11 and 12 and transcribed as per Ex.P.19. Recordings were stated to have been played before P.W.5 and he has identified voice of accused No.2. P.W.5 has stated that one voice appeared to be of A.S.I. Gangaraju. Admittedly, P.W.5 is not an expert in voice identification. In respect of transmission of these recordings to C.D., certificate under Section 65B of Indian Evidence Act is produced by P.W.8 and is marked as Ex.P.21.
27. P.W.9 subsequent I.O. has stated that he has recorded sample voice of accused No.1 and 2 by drawing Mahazar as per Ex.P.13 and then got the recordings transmitted to C.D. as per M.O.14 and 15 and then sent the same to F.S.L. for voice identification along with other C.Ds containing alleged voice of accused. In respect of these CDs in M.O. 14 and 15 there is no certificate obtained under Section 65B of Indian Evidence Act. In 2014 AIR SCW 5695 24 Spl.C.No.430/2015 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has held that, "when the secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act". Therefore, without certificate under Section 65B of Indian Evidence Act with regard to M.O.14 and 15, they cannot be accepted as admissible evidence. Therefore, the C.Ds which were sent as sample voice as per M.O.14 and 15 to F.S.L. were defective as not supported by certificate. Therefore the Report of Forensic Science Laboratory given as per Ex.P.29 by comparing M.O.14 and 15 with M.O.9, 11 and 12 would not be of much help to the prosecution. Therefore, even these alleged recordings in M.O.9, 11 and 12 are also not of any help to the prosecution to prove the alleged demand of bribe amount of Rs.200/- by the accused No.1 and 2 before giving complaint or at the time of trap. Even otherwise, evidence of P.W.1 show that Rs.200/- was asked as fine for driving the vehicle without D.L. and even notice as per Ex.D.1 was given to P.W.1.
28. Regarding demand of Bribe at the time of Trap P.W.2 - shadow witness has not stated anything. Even P.W.1 has stated that, he has given Rs.200/- to accused No.2 as fine 25 Spl.C.No.430/2015 after receiving notice as per Ex.D.1. Therefore, demanding of bribe at the time of trap is also not established. For all these reasons, the demand of bribe amount by accused No.1 and 2 from complainant for doing any official favour to complainant is not established. Amount of Rs. 200/- is said to have been asked as fine for driving the vehicle without D.L. Moreover, accused No.1 is not identified by P.W.1 and as stated by P.W.1, accused No.2 was not aware of whole transaction and was not even present on 24.7.2013. Therefore, demand of bribe amount by accused No.1 and 2 is not proved.
29. Coming to acceptance of bribe amount, both P.Ws 1 and 2 have not supported prosecution case. P.W.1 though has stated that he has given Rs.200/- to accused No.2 in Nandini Layout Police Station, he has stated that he has given this amount as fine for driving the vehicle without license and he has received Ex.D.1 - Notice from accused No.2 in which complainant was asked to appear before MMTC Court for the offence punishable under Section 92(f) of K.P.Act. P.W.1 in his cross-examination has clearly admitted that for paying fine for this offence mentioned in the notice, he has given Rs.200/- to accused No.2. P.W.2 who is a shadow witness has stated that he has not entered police station when amount is stated to have been given by P.W.1 to accused No.2 and only after 26 Spl.C.No.430/2015 getting signal he entered the station. Therefore, P.W.2's evidence is not helpful to prove the receipt of tainted notes by accused No.2 as bribe. Evidence of P.W.1 show that tainted notes are given by him voluntarily for payment of fine for the offence under Section 92(f) of K.P.Act. Accused No.2 receiving amount towards payment of fine from complainant may be irregularity, but cannot be considered as acceptance of illegal gratification. Other witnesses cannot say about acceptance of bribe amount by accused No.2 as they were not present inside the Police station and trap team entered only after getting signal. Even Ex.P.19 transcription does not say that accused No.2 has received these tainted notes as bribe. Therefore, even acceptance of tainted notes by accused No.2 on 25.7.2013 as bribe from P.W.1 is not established in this case. Though hand wash of accused No.2 has turned to pink colour and amount is stated to have been found in the purse of accused No.2 as stated by witnesses, that itself does not prove that accused No.2 has received this amount as bribe from complainant. Moreover, in view of clear admission of P.W.1 that he has given Rs.200/- to accused No.2 as fine for driving vehicle without licence after receiving Ex.D.1- Notice, defence of accused No.2 that he has not received that amount as bribe appears more probable. As held in various decisions, the 27 Spl.C.No.430/2015 evidence of complainant should be corroborated by evidence of shadow witness. In this case, shadow witness has turned hostile and not supported prosecution case. P.W.1 himself has not stated that he has given the tainted notes to accused No.2 as bribe. Therefore, even if acceptance of Rs.200/- by accused No.2 is established, mere acceptance without proof of demand will not prove guilt of accused.
30. In 2013 SAR (Criminal) 945 (State of Punjab Vs. Madan Mohan Lal Verma), in para No.7 Hon'ble Supreme Court has held as under : -
"Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification."
31. On looking to entire evidence led by the prosecution, demand of bribe amount by accused to do any official favour to complainant itself is not established. Prosecution has also failed to prove the receipt of tainted notes by accused No.2 for himself and on behalf of accused No.1 at the time of trap as illegal gratification. When demand of bribe 28 Spl.C.No.430/2015 to do official act or a favour is not established, question of accused accepting bribe does not arise. Even if acceptance of tainted notes by accused No.2 and its recovery from him are established, prosecution cannot succeed as there is no clear evidence to show that accused No.2 has received the tainted notes as illegal gratification and demand of illegal gratification is not proved.
32. Though there is a presumption U/s.20 of Prevention of Corruption Act, only on proof of demand and acceptance of amount, presumption can be drawn that such receipt of gratification is as a motive or reward as mentioned in Section 7. Therefore, demand and acceptance are to be proved even to draw the presumption U/s.20 of the Prevention of Corruption Act. In this case, prosecution has failed to discharge initial burden of proving the demand and acceptance of illegal gratification by the accused. Therefore, presumption cannot be drawn under section 20 of P.C.Act.
33. For all these reasons, prosecution has failed to prove that accused No.1 and 2 have demanded and accepted illegal gratification from complainant and committed the offence under Section 7 of Prevention of Corruption Act. Similarly, any criminal misconduct of accused by receiving any pecuniary advantage without any public interest is also not made out.
29 Spl.C.No.430/2015Therefore, prosecution has failed to prove the guilt of accused beyond all reasonable doubt. Accordingly, points Nos.1 and 2 are answered in the Negative.
34. POINT No.3:- For the findings on above Points, accused are to be acquitted. Hence, following order is passed:
ORDER Accused No.1 and 2 are found not guilty. Acting u/s 235(1) of Cr.P.C. accused No.1 and 2 are acquitted from the charges levelled against them for the offences under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, 1988.
The bail bonds executed by accused No.1 and 2 and their sureties stand cancelled.
c M.O.2 - Cash of Rs.200/- is ordered to be confiscated to the State after expiry of appeal period.
MO.1 - Metal Seal is ordered to be returned to Lokayukta Police after appeal period is over.
M.O.3 to 15 are ordered to be destroyed after the expiry of appeal period, as they are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 12th day of July 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.30 Spl.C.No.430/2015
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Ramachandra PW.2 Puttegowda PW.3 Venkatesh.N. PW.4 Lokesh.A.S. PW.5 K.V.Venkatesh PW.6 Vijaya Hadagali PW.7 B.A.Kusuma PW.8 Anil Kumar.V. PW.9 Manjunath.M.
List of documents exhibited for the prosecution:
Ex.P.1 Complaint P.1 (a) Signature of PW1 Ex.P.2 Pre-trap mahazar P.2(a) Signature of P.W.1 P.2 (b) Signature of P.W.3 P.2(c) Signature of P.W.2 P.2(d) Signature of P.W.8 Ex.P.3 Trap mahazar P.3(a) Signature of P.W.1 P.3(b) Signature of P.W.3 P.3(c) Signature of P.W.2 P.3(d) Signature of P.W.8 Ex.P.4 Details of currency notes. P.4 (a) & (b) Signature of P.W.1 P.4 (c) Signature of P.W.3 P.4(d and e) Signature of P.W.2 P.4 (f, g) Signature of P.W. 8 Ex.P.5 Transcription of Conversation P.5(a) Signature of P.W.1 P.5(b) Signature of P.W.3 P.5(c) Signature of P.W.8 31 Spl.C.No.430/2015 Ex.P.6 Acknowledgment of metal seal Ex.P.6(a) Signature of P.W.3 Ex.P.7 Written explanation P.7(a) Signature of P.W.3 P.7(b) Signature of P.W.8 Ex.P.8 Prosecution Sanction Order of A-1 Ex.P.9 Prosecution Sanction Order of A-2. Ex.P.10 Statement of C.W.2 As per charge sheet page No.189 to 202 Ex.P.11 Witness statement of C.W.5 P.11(a) Signature of P.W.5 P.11(b) Signature of P.W.8 Ex.P.12 Report of P.W.6 P.12(a) Signature of P.W.6 Ex.P.13 Voice record mahazar Ex.P.13(a) Signature of Pw7 P.13(b) Signature of P.W.2 P.13(c) Signature of P.W. 9 Ex.P.14 FIR Ex.P.17 Sample seal Ex.P.14(a) Signature of P.W.8 Ex.P.15 Copy of SHD Ex.P.16 Petty Case Register Ex.P.17 Copy of centry register Ex.P.18 Rough Sketch Ex.P.18(a) Signature of P.W.8 Ex.P.19 Transcription Ex.P.19 (a) Signature of P.W. 8 Ex.P.20 Sample seal P.20(a) Signature of P.W.8 Ex.P.21 Certificate under Section 65(B)of Indian Evidence Act by P.W.8 P.21(a) Signature of P.W.8 Ex.P.22 Written explanation of Accused No.1 Ex.P.23 Report given by C.W.12 Ex.P.24 FSL Report 32 Spl.C.No.430/2015 Ex.P.25 Service details of accused Nos.1 and 2 Ex.P.21(a) to 25(a) Signature of P.W.8 Ex.P. 26 Sketch of A.E.E. Ex.P.27 Statement Ex.P.28 Acknowledgment Ex.P.29 F.S.L. Report. Ex.P.28 & 29 (a) Signature of P.W.9
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence: Ex.D.1 : Notice copy Material Objects marked by Prosecution :
MO.1 Metal seal
MO-2 Tainted notes.
MO.2(a) Cover
MOs-3 to 7 Bottles containing solution labeled as
Article No.1, 2, 5, 6 and 7.
MO 8 Purse
MO.8(a) Cover inside M.O.8
MO.9 to 13 C.Ds
MOs-9(a) to 13(a) Covers
MO 14 & 15 Two C.Ds
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***