Bangalore District Court
The State Of Karnataka vs Sri M.N.Narasimha on 28 June, 2017
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 28th day of June 2017
Spl. C.C.No.280/2010
COMPLAINANT The State of Karnataka,
Rep.by Karnataka
Lokayuktha Police, City
Division, Bengaluru.
(Rep by Spl.Public
Prosecutor)
--Vs-
ACCUSED Sri M.N.Narasimha
Murthy, s/o
Narasegowda, aged about
47 years, Second Division
clerk, Office of the
Deputy Conservator of
Forests, r/at No.11/1, 1st
Main Road, Bovipalya,
Mahalakshmipuram,
Bangalore-86.
(By Sri. C.G.Sunder-
Advocate )
2 Spl.C.C.No.280/2010
1. Nature of Offence Offence punishable under
Sec.7, 13(1) (d)
R/w.Sec.13(2) Prevention of
Corruption Act, 1988.
2. Date of 10.05.2010
Commission
of offence
3. Date of First 10.05.2010
Information Report
4. Date of arrest 10.05.2010
5.Date of 02.09.2014
Commencement of
recording of
evidence
6. Date of 21.03.2017
Closing of evidence
7. Date of 28.06.2017
Pronouncement of
Judgment
8. Result of the case The accused is acquitted
under section 235(1) of
Cr.P.C. of the offence
punishable under section 7,
13(1) (d) r/w 13(2) of
Prevention of Corruption
Act, 1988
3 Spl.C.C.No.280/2010
JUDGMENT
The accused is charge sheeted for the alleged offence punishable under Sections 7, 13(1) (d) r/w Sec.13 (2) of the Prevention of Corruption Act, 1988.
2. The prosecution case is that:
The accused was then working as Second Division Assistant in the Office of Deputy Conservator of Forest, Aranya Bhavan, Malleswaram, Bangalore. The complainant-Venkatesh L. being the owner of "Sri Lakshmi Venakteshwara Timbers Saw Mill", made an application dated 22.3.2010 to the Office of the Deputy Conservator of Forest, Aranya Bhavana, Malleswaram, for renewal of license of his Saw Mill for the year 2010-2011. On 7.5.2010, the complainant met the accused and requested for renewal of license. The accused demanded bribe of Rs.17,000/- for renewal of license of the Saw Mill. The complainant was not willing to pay the bribe amount. On 10.5.2010, the complainant approached CW.18- Sri K.C.Lakshminarayana, Police Inspector, Karnataka Lokayuktha, and gave a written complaint as per Ex.P.5.
CW.18 arranged for the trap. CW.3-N.K.Venkatesha Babu 4 Spl.C.C.No.280/2010 and CW.4- B.S.Shivaji Rao, the employees of Government SKSJTI College, were secured to act as witnesses for the trap. The bait money of Rs.17,000/- (two currency notes- denomination of Rs.1000/- and 30 currency notes denomination of Rs.500/-) marked at M.O.1 was smeared with phenolphthalein powder. Before that, number of currency notes were recorded in a white sheet and obtained the signatures of the witnesses. CW.4- Shivaji Rao, after verifying and counting the tainted currency notes, has placed it in the right side pant pocket of the complainant. Both hand fingers of CW.4-Shivaji Rao were made to dip in the sodium carbonate solution. The said solution becomes pink colour. The C.D produced by the complainant along with the complaint, was played in the presence of the witnesses and contents of it were transcripted into writing. The complainant was instructed to approach the accused, speak with him about the work and to pay the amount only on demand. He was further instructed to give signal by removing his cap and wiping his hairs, if the accused received the money. Button camera and Digital Voice Recorder were given to the complainant with an instruction to switch it on while approaching the accused and to record the scene and conversation. CW.3- Venkatesha Babu(shadow witness) was instructed to follow the 5 Spl.C.C.No.280/2010 complainant and to observe the transaction. Step by step all the events were videographed. The entire proceedings were reduced into writing and Entrustment Mahazar was drawn as per Ex.P.6.
3. On 10.5.2010 at about 4.15 p.m., the accused was trapped while demanding and accepting illegal gratification of Rs.17,000/- through CW.2- Gopal-Forest Guard, from the complainant. Two currency notes- denomination of Rs.1000/- and 30 currency notes denomination of Rs.500/- (Rs.17,000/-), which has been smeared with phenolphthalein powder were recovered from CW.2-Gopal and tallied with the currency note sheet. Before that, both hand fingers of CW.2-Gopal were made to dip in the sodium carbonate solution. The said solution becomes pink colour. The file pertaining to the complainant and the Attendance register was seized. Since the place of trap was not conducive for conducting further trap proceedings, the accused and CW.2-Gopal were brought to the Lokayuktha Police station. The inner wear of CW.2- Gopal was seized, by making an alternative arrangement. The Button camera and Digital Voice Recorder given to the complainant at the time of trap was played in the presence of the witnesses, contents of which were converted to C.D 6 Spl.C.C.No.280/2010 and transcripted into writing. CW.5-Seetharama Raju, Manager, Office of the Deputy Conservator of Forest, has identified the voice of the accused. The Police Inspector has recorded the statements of the complainant and shadow witness. The accused and CW2- Gopal submitted their explanation in writing as per Ex.P17 & 18 respectively. The proceedings of the trap were reduced into writing and Trap Mahazar was prepared as per Ex.P.7. After obtaining the Sanction Order from the concerned authority, charge sheet is filed against the accused, for the offence punishable u/s 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
4. My Predecessor-in-Office took cognizance of the offence. The accused is enlarged on bail. After hearing, the charge was framed for the offence punishable under Sections 7, 13(1) (d) r/w13 (2) of the Prevention of Corruption Act, 1988. The Charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
5. During the trial, the prosecution has examined in all 6 witnesses as P.Ws.1 to 6 and got marked 21 documents as Ex.P1 to Ex.P.21 and 12 Material Objects. The accused 7 Spl.C.C.No.280/2010 was examined under section 313 of Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. The accused denied all the incriminating evidence available against him. The accused has not chosen to lead any defense evidence. However, during the cross-examination of the prosecution witness, the accused got marked one document as Ex.D.1. I have heard the arguments and perused the records.
6. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being the public servant, working as Second Division Assistant in the Office of Deputy Conservator of Forest, Bangalore Urban Division, Aranya Bhavana, Malleswaram, Bangalore, on 10.05.2010, at 4.15 p.m., demanded and accepted illegal gratification of Rs.17,000/-
through CW.2-Gopal, Forest Guard, from the complainant- L.Venkatesh for showing an official favour in the matter of renewal of license in respect of "Sri Lakshmi Venkateshwara Timbers Saw Mill", for the year 2010-2011 and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
8 Spl.C.C.No.280/20102. Whether the prosecution proves beyond all reasonable doubt that the accused being the public servant, working as Second Division Assistant in the Office of Deputy Conservator of Forests, Bangalore Urban Division, Aranya Bhavan, Malleswaram, Bangalore on 10.05.2010 at about 4.15 p.m. by abusing his position as public servant and by corrupt or illegal means and without public interest obtained Rs.17,000/- through CW.2-Gopal, Forest Guard, from the complainant-
L.Venkatesh as pecuniary advantage and thereby committed Criminal mis-conduct punishable under section 13(1)(d) r/w. section 13(2) of the Prevention of Corruption Act 1988?
3. What order?
7. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER.
for the following:
REASONS
8. POINT No.1 AND 2: For the sake of convenience and to avoid repetition of facts, I have taken both the points together for consideration.
9 Spl.C.C.No.280/20109. The prosecution has examined CW6-R.Ravi Kumar, the Deputy Conservator of Forest, as PW1. PW1 is the Sanctioning Authority who accorded sanction to prosecute the accused. The Sanction Order dated 3.8.2010 is produced and marked as Ex.P1. The service particulars of the accused, work allotment of the accused are marked at Ex.P2, P3 and P4 respectively.
10. During the cross examination made on behalf of the accused, PW1 has stated that the official favour sought was in respect of renewal of license for the period 2010-11. The records disclose that CW1 had given application for renewal of license on 22.3.2010. On 31.3.2010, license was renewed. The Deputy Conservator of Forest is the competent authority to renew the license. The accused and other staff members of the Deputy Conservator of Forest have done their part of the work in accordance with rules.
11. The attested copy of the letter dated 19.5.2010 written by PW1 to the Investigating Officer is marked as Ex.D1. In the said letter, it is mentioned that, the license was renewed on 31.3.2010, but CW1 did not approach the Office and collect the renewed license. It is further mentioned that, the license was renewed within the 10 Spl.C.C.No.280/2010 prescribed time limit and no lapses found on the part of the officials of the Deputy Conservator of Forest, in the procedure adopted for renewal of license. PW1 has admitted this fact during the course of cross-examination. It is relevant to note that this fact was within the knowledge of PW1, at the time of issuing Sanction Order.
12. It is well settled that the Sanctioning Authority has to apply his mind to the facts of the case and if case warrants to accord sanction, then the sanction has to be accorded. It is very important that the Sanctioning Authority must independently peruse the investigation papers and come to the conclusion that there are enough materials to accord sanction. In the present case, though PW1 was having knowledge that the accused was not competent authority and empowered to issue renewal of license, the license was renewed within the prescribed time limit, no work was pending with the accused, and no lapses found on the part of the accused in the procedure for renewal of license, has mechanically and arbitrarily accorded sanction to prosecute the accused.
13. The prosecution has examined CW1-complainant as PW2. PW2 has deposed that in the month of March 11 Spl.C.C.No.280/2010 2010, he had applied for renewal of license of his Saw Mill. On 7.5.2010, accused contacted him over phone and asked him to pay Rs.17,000/-. He do not know the reason behind the said demand. On 11.5.2010, the accused contacted him over phone and asked him to pay Rs.17,000/-, for handing over the license after renewal. On 9.5.2010, he approached the Lokayuktha Police. On 11.5.2010, he met the accused around 4.00 p.m. and spoke with him about the work. He was told by the accused to hand over the amount to CW2- Gopal, who was in the ground floor of the building. As per the instructions of the accused, he handed over Rs.17,000/- to CW.2-Gopal. Immediately, Lokayuktha Police Inspector, apprehended the accused. Thereafter, the accused was brought to the Lokayuktha Police station, wherein his signatures were obtained on 2-3 papers and at 7.00 p.m. he was sent home. Further PW2 deposed that, on 8.5.2010 he lodged complaint.
14. While recording the evidence, the demeanor of PW2 was observed by the Court. It appears that PW.2 was reluctant to answer the questions posed by the Spl.P.P. PW2 has half heartedly deposed before the Court. He doesn't want to tell the truth before the Court. This witness 12 Spl.C.C.No.280/2010 has been treated as hostile. The learned Spl.P.P. cross- examined PW2 at length. During the cross-examination, PW2 admits the case of the prosecution.
15. During the course of cross-examination made on behalf of the accused, PW2 has deposed that he applied for renewal of license in the month of March 2010, after that, he met the Manager, who told him that the application is under process. PW2 has pleaded ignorance that license was renewed on 31.3.2010. PW2 further deposed that license would be delivered by the Manager. PW2 further deposed that after his first visit to the office of CW18 (IO) on 9.5.2010, his next visit was on 11.5.2010. PW2 has given go-bye to the facts admitted by him during the cross-examination made by Spl.P.P. PW2 has not fully supported the prosecution case. The evidence of PW2 is inconsistent about the date of complaint, date of trap, etc. It is well settled that where a witness makes two inconsistent statements in his/her evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness. In the present case, PW2 has made two inconsistent statements regarding date 13 Spl.C.C.No.280/2010 of complaint, date of trap, preparing of Entrustment Mahazar and Trap Mahazar. Therefore, the evidence of PW2 becomes unreliable and unworthy of credence to that extent.
16. The prosecution has examined CW2- M.S.Gopal as PW3. According to the prosecution, he is the person who received the bribe amount from the complainant at the instance of the accused, and it is from him, tainted currency notes were recovered and his resultant hand wash becomes positive. PW3 has deposed that in the year 2010, he was on deputation as Assistant to the FDA in the Office of the Deputy Conservator of Forest, Bangalore. At that time, the accused was working as SDA. On 10.5.2010, at about 5.00p.m., he was stepping down from his office to join his friend who had come to the premises of his office. He was proceeding towards the canteen. At that time, some unknown person stopped him and placed a cover in his hands. He kept the said cover inside the right side pant pocket. By that time, the Lokayuktha Police caught hold him, took out the cover from his pant pocket, opened it and made him to touch the currency notes in the said cover. Thereafter his hand fingers were washed. He was brought to the Lokayuktha office and set at liberty at about 9.00 14 Spl.C.C.No.280/2010 p.m. On the next day, Lokayuktha Police took him to the Court and compelled him to give statement before the Magistrate. Because of torture given by Lokayuktha Police, he gave statement before the Magistrate.
17. PW3 who is a material witness has turned hostile. He has not supported the prosecution case. The Spl.P.P. cross-examined PW3 at length. But nothing useful to the case of the prosecution is elicited during the course of cross-examination. The statement said to have been given by PW3 before the I.O u/s 161 of Cr.P.C. is marked at Ex.P8. But PW3 has denied of giving such a statement.
18. The prosecution has examined CW7- Smt.Rangamma-retired Guard, Forest Department, as PW4. According to the prosecution, on 7.5.2010, at about 1.15 p.m., when PW4 had been to canteen to bring coffee, she saw the accused talking with Venkatesh-complainant and the accused spoken to her. But PW4 in her evidence pleaded ignorance about the complainant- Venkatesh and the conversation that took place between the complainant and the accused. PW4 turned hostile. She has not supported the prosecution case. The Spl.P.P. treated this witness as hostile and cross-examined her. But nothing 15 Spl.C.C.No.280/2010 useful to the case of the prosecution was elicited during the course of cross-examination.
19. The prosecution has examined CW3- N.K.Venkatesha Babu as PW5. PW5 is a shadow witness. His evidence discloses that CW1- Venkatesh went to nearby parking place. He followed CW1 and stood at the distance of 5-6 meters. At that time CW2-Gopal was present. CW1- Venkatesh has paid the money to CW2- Gopal. No conversation took place between CWs 1 and 2. CW1 gave phone call to Lokayuktha Police Inspector who in turn rushed to the spot and apprehended CW2- Gopal. Thereafter, CW2- Gopal lead the Lokayuktha Police to the office of the accused. The Lokayuktha Police checked the table drawer of the accused but nothing was found. Thereafter, Lokayuktha Police Inspector brought the accused and CW2- Gopal to Lokayuktha office, wherein hand fingers of CW2 - Gopal were made to dip in the sodium carbonate solution, which turned to light yellow colour. He stood outside the Lokayuktha police station. His signature was obtained on the Trap Panchanama. No documents were seized from the office of the accused. He pleaded ignorance about the recovery of tainted currency notes.
16 Spl.C.C.No.280/201020. PW5 who is a material witness has turned hostile. He has not supported the prosecution case. The learned Spl.P.P. cross-examined PW5 at length. But nothing useful to the case of the prosecution is elicited during the course of cross-examination.
21. During the course of cross-examination made on behalf of the accused, PW5 has stated that he was made to sit outside the Lokayuktha office during Entrustment Mahazar said to have been prepared. He has further stated that after CW1- Venkatesh gave the money to CW2- Gopal, Lokayuktha Police Inspector and his staff took him to the table of the accused, at that time he saw the accused for the first time, before that he never seen the accused. Further he has stated that, in the Lokayuktha office, tainted currency notes were recovered first, thereafter hand fingers of CW2- Gopal were washed in the sodium carbonate solution. He has further stated that CW5 - Seetharam Raju has produced the concerned file before the I.O in the Lokayuktha Police station. He has further stated that, Trap Mahazar was prepared by Lokayuktha Police Inspector, he subscribed his signature as per his instructions. Before subscribing his signature, he has not read the contents of Trap Mahazar.
17 Spl.C.C.No.280/201022. PW5 an independent witness has not played his role as instructed and in the manner as required in law. The impartial shadow witness to the Trap proceedings is taken with an object of proving the case of demand and acceptance of bribe by independent corroboration. According to PW5, he had not seen the accused prior to trap nor overheard the conversation that took place between the complainant and the accused. Absolutely, there is no independent corroboration to prove the theory of demand and acceptance of bribe by the accused. The evidence of CW1- Venaktesh with regard to demand and acceptance of illegal gratification of Rs.17,000/- by the accused, through CW2- Gopal, remains uncorroborated.
23. PW6 is the Investigating Officer. He has deposed regarding registering of complaint, drawing of Entrustment Mahazar, laying of trap against the accused, recovery of tainted currency notes from CW2- Gopal, resultant hand wash of CW2 Gopal turned to pink colour, seizure of concerned documents from the accused, converting the contents of Button camera and Digital Voice Recorder to C.D and tran-scripted into writing, identifying the voice of the accused through CW5- Seetharam Raju, Manager, Office of Deputy Conservator of Forest, obtaining Sanction 18 Spl.C.C.No.280/2010 Order from the Competent Authority and submitting the charge sheet before the Court.
24. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
25. In the present case, PW2 who is the best person to say regarding demand of illegal gratification and acceptance of the same by the accused for showing an official favour, has given inconsistent statement. He has 19 Spl.C.C.No.280/2010 half heartedly deposed before the Court. He doesn't want to tell the truth before the Court. He has not whole heartedly supported the prosecution case. The evidence of PW5 (shadow witness) who is a material witness, has not supported the case of the prosecution. He has not seen the accused prior to the Trap nor overheard the conversation said to have taken place between the complainant and the accused, regarding the demand of illegal gratification. The evidence of PW5, who is said to be an independent witness, does not corroborate the evidence of the complainant with regard to the demand and acceptance of bribe by the accused through CW2- Gopal. Absolutely there is no evidence with regard to demand of bribe by the accused.
26. Further there is material inconsistence in the evidence of PW2, PW3 and PW5 with regard to date of Trap, recovery of tainted currency notes, preparing of Trap Mahazar, etc. Further the evidence of PW3 reveals that, he was apprehended by the Lokayuktha Police Inspector and made him to touch the currency notes kept in the cover, and thereafter his hand fingers were washed. The evidence of PW5 reveals that after recovery of tainted currency notes from PW3, his hand fingers were washed in sodium carbonate solution. The evidence of PW5 further reveals 20 Spl.C.C.No.280/2010 that Trap panchanama was prepared by Lokayuktha Police Inspector, thereafter his signatures were obtained and without reading the contents of Trap Mahazar, he signed it. The evidence of PW5 is contrary to the contents of Trap Mahazar.
27. The evidence on record reveals that, the complainant has given application for renewal of license on 22.3.2010. On 31.3.2010, license was renewed. The complaint was lodged on 10.5.2010. Trap was laid on 10.5.2010. As on the date of Trap, no work of the complainant was pending. Further, Ex.D1-the letter written by the Deputy Conservator of Forest to the I.O. reveals that no lapse found on the part of the accused in attending the file relating to the complainant with regard to renewal of license. Therefore, when the renewal of license was kept ready much before lodging of the complaint, the question of accused demanding bribe amount for doing any work, does not arise as no work was pending at the time of lodging the complaint.
28. The Deputy Conservator of Forest is the Competent Authority to renew the license. The accused being Second Division Assistant in the office of the Deputy 21 Spl.C.C.No.280/2010 Conservator of Forest is not the Competent Authority nor empowered to renew the license. Hence, the question of demand of illegal gratification by the accused and acceptance of the same on 10.5.2010, through CW2-Gopal for renewal of license is legally and factually does not arise.
29. It is well settled that electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine, is supported by the decision of Supreme Court in the case of Anwar P.V. - v- P.K.Basheer and others; (2014) 10 Supreme Court Cases 473.
30. In the present case, MO10, M011 and MO12 are the CDs containing conversation which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of 22 Spl.C.C.No.280/2010 the accused and sent it to Forensic Science Laboratory for scientific investigation. On this ground also, MO10, M011 and MO12 cannot be admitted in evidence.
31. It is well settled that mere recovery of tainted money and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused, unless there is corroboration of testimony of complainant regarding demand and acceptance of bribe by the accused. In the present case, the testimony of PW5 who is said to have been independent witness, does not support the prosecution case with regard to demand of illegal gratification by the accused and acceptance of the same to do an official favour to the complainant. CW2- Gopal who alleged to have received the tainted money on behalf of the accused has also turned hostile and not supported the prosecution case. Demand of illegal gratification by the accused and acceptance of the same for doing an official favour has not been established. When the prosecution's allegation of demand of bribe is false, the allegation of payment of bribe to CW2- Gopal at the instance of the accused, and recovery of the same, must be viewed with suspicion. The prosecution has miserably failed to prove 23 Spl.C.C.No.280/2010 the essential ingredients of Sections 7, 13(1)(d) of Prevention of Corruption Act,1988.
32. The Hon'ble High Court of Karnataka in the case of R.Malini -Vs- State of Karnataka ; 2012(1) KCCR 414 held that:
"PREVENTION CORRUPTION ACT, 1988- Sections 7, 13(1)(d)- In the absence of any evidence of demand and acceptance of the amount as illegal gratification - Mere acceptance of Money by the appellant will not be sufficient to fasten the guilt."
33. The Hon'ble Supreme Court in the case of B.Jayaraj -v- State of A.P.; 2014 AIR SCW 2080, held that:
"Prevention of Corruption (49 of 1988), Ss.7, 13- Bribery case- Demand of gratification - Proof- Complainant disowning to have made complaint- No other evidence adduced by prosecution to prove demand- Demand of gratification cannot be held to be proved only on the basis of complaint filed and evidence of panch witness- In absence of proof of demand mere recovery of tainted money from accused- Not sufficient for his conviction."24 Spl.C.C.No.280/2010
34. The Hon'ble Supreme Court in the case of Meena
-Vs- State of Maharashtra 2000 SCC (Cri) 878 held that:
"Mere recovery of the currency note and positive result of the phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence."
35. The Hon'ble Supreme Court in the case of M.R.Purushotham -v- State of Karnataka; 2014 AIR SCW 5740 has held that:
"Prevention of Corruption Act( 59 of 1988) s.13- Illegal gratification - Proof-
Allegations that accused working as Second Division Surveyor demanded and accepted Rs.500/- from complainant for issuance of survey sketch- Complainant himself not supporting prosecution case insofar as demand by accused is concerned- Mere possession and recovery of the currency notes from accused without proof of demand would not attract offence under S.13(1)(d)-
Conviction of accused, set aside."
36. The Hon'ble High Court of Karnataka in the case of Dr.S.R.Chowdaiah -v- State of Karnataka; 2016(1) AKR 181 has held that:
25 Spl.C.C.No.280/2010"Prevention of Corruption Act (49 of 1988), S.13- Illegal gratification-
Demand and acceptance - complainant, who lodged complaint turned hostile to prosecution case- Both panchas were Government Servants and being Government servants, there was likelihood that they would support prosecution against accused because of fear of initiation of disciplinary proceedings- No attempt made to involve independent witness - Moreover, accused already exonerated in disciplinary proceedings- In circumstances, accused acquitted after giving him benefit of doubt."
37. The Hon'ble Supreme Court in the case of Panalal Damodar Rathi -Vs- State of Maharashtra 1980 SCC (Cri) 121 held that:
" Penal code, 1860- Section 165-A- Effect on corruption case by introduction of- Held, complainant to be regarded as an accomplice, to be corroborated in material particulars before being relied upon- Prevention of Corruption Act, 1947, Section 5(1)(d) and 5(2) and IPC, 1860, Section 161- On facts, demand of bribe money not corroborated."26 Spl.C.C.No.280/2010
38. The Hon'ble Supreme Court in the case of Darshan Lal -v- The Delhi Administration; 1974 Supreme Court Cases (Cri) 73 held that:
"Criminal Trial- Witness- Trap witnesses- Absence of independent and reliable corroborative evidence- Other evidence not conclusive and found contradictory-
Accused given benefit of doubt- Prevention of Corruption Act, 1947, Section 5(2) and Indian Penal Code, Section 161."
[
39. The Hon'ble Supreme Court in the case of State of Punjab -v- Madan Mohan Lal Verma; (2014)14 Supreme Court Cases 136, held that:
"The law on the issue is well settled that demand of illegal gratification is sine- qua-non for constituting an offences under the 1988 Act. 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 evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory 27 Spl.C.C.No.280/2010 presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."
40. The Hon'ble Supreme Court in the case of State of Kerala and another-v- C.P.Rao; (2011)2 Supreme Court Cases 1010 held that:
"Mere recovery of tainted money, divorced from circumstances under which is it paid, is not sufficient to 28 Spl.C.C.No.280/2010 convict accused- When there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on."
41. The Hon'ble Supreme Court in the case of T.Subramanian -v- State of T.N; (2006)1 Supreme Court Cases (Cri)401 held that:
" Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of accused- If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, accused would be entitled to acquittal."
42. The Hon'ble Supreme Court in the case of Banarsi Dass-v- State of Haryana; (2010)2 Supreme Court Cases (Cri) 864 (2010)4 Supreme Court Cases 450 held that:
"Mere recovery of money from the accused by itself is not enough in absence of substantive evidence of demand and acceptance."29 Spl.C.C.No.280/2010
43. The Hon'ble Supreme Court in the case of P.Satyanarayana Murthy-v- Dist.Inspector of Police & Anr; IV(2015) CCR 57(SC) held that:
"Mere possession and recovery of currency notes from accused without proof of demand would not establish an offences under Sections 7 as well as 13(1)(d)(i) and 13(1)(d)(ii) of Prevention of Corruption Act."
44. In the instant case, the evidence with regard to demand of illegal gratification by the accused is totally lacking. Further the renewal of license was kept ready much before the lodging of the complaint. Further, the accused is not the Competent Authority nor empowered to issue renewal of license. In the absence of evidence of demand and acceptance of the amount as illegal gratification, mere recovery of the amount from CW2- Gopal will not be sufficient to fasten the guilt. The prosecution has miserably failed to prove beyond all reasonable doubt that the accused has committed the offence punishable under sections 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988. Hence, I answer Point No.1 & 2 in the Negative.
30 Spl.C.C.No.280/201045. POINT NO.3: In the result, I proceed to pass the following:
ORDER The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused stands cancelled.
MO1 - Currency notes are ordered to be confiscated to the State after expiry of appeal period.
MOs 2 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the judgment writer directly on the computer, after transcription, corrected by me and then pronounced by me in the open court on this the 28th day of June 2017) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 31 Spl.C.C.No.280/2010 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 R.Ravi Shankar PW2 L.Venkatesh PW3 M.S.Gopala PW4 Rangamma PW5 N.K.Venkatesh Babu PW6 K.C.Lakshminarayana
List of documents marked on behalf of prosecution:
Ex.P.1 Sanction order dated 3.8.2010 Ex.P.1(a) Signature of PW.1 Ex.P.2 Service particulars of accused Ex.P.2 (a) Signature of PW.1 Ex.P.3 Letter of work allotment of accused Ex.P.3(a) Signature of the PW.1 Ex.P.4 Attested copy of another work allotment letter Ex.P.5 Complaint dated 10.05.2010 Ex.P.5(a) Signature of the PW.2 Ex.P.5(b) Signature f PW.6 Ex.P.6 Pre-trap mahazar Ex.P.6(a) Signature of PW.2 Ex.P.6(b) Signature of PW.5 Ex.P.6(c) Signature of PW.6 Ex.P.7 Trap mahazar Ex.P.7(a) Signature of PW.2 32 Spl.C.C.No.280/2010 Ex.P.7(b) Signature of PW.5 Ex.P.7(c) Signature of PW.6 Ex.P.8 Relevant portion of statement of PW.3 Ex.P.9 Paper showing the number of currency notes Ex.P.9(a) Signature of PW.5 Ex.P.10 Transcription and C.D Ex.P.10(a) Signature of PW.6 Ex.P.11 File of the complainant Ex.P.12 Attested copy of the Attendance registers Ex.P.13 Rough sketch of the scene of offence Ex.P.14 Transcription(page No.24 to 29 of chargesheet file) Ex.P.14(a) Signature of PW.6 Ex.P.15 Sample seal sheet Ex.P.15(a) Signature of PW.6 Ex.P.16 Acknowledgement for handing over the metal seal Ex.P.17 Written statement of the accused Ex.P.18 Written statement of CW-2 Gopal Ex.P.19 Report Ex.P.20 Spot sketch Ex.P.21 Chemical examination report List of material objects marked on behalf of the prosecution:
MO.1 Currency notes Article No.6
MO.2 Sample solution Article No.1
MO.3 Hand wash solution of CW4 Article No.2
MO.4 Sample solution Article No.3
MO.5 Right hand wash solution Article No.4 &
of CW2 4A
33 Spl.C.C.No.280/2010
MO.6 Left hand wash solution of Article No.5 &
CW2 5A
MO.7 Sample solution Article No.7
MO.8 Inner wear pocket wash Article No.8 &
solution 8A
MO.9 Inner wear Article No.9
MO.10 CD- transcripts Article No.10
MO.11 CD- identified voice Article No.11
MO.12 CD- video converted Article No.12
List of witnesses examined on behalf of the accused :
-Nil-
List of documents marked on behalf of the accused:
Ex.D.1 Letter dated 19.5.2010 of the Deputy Conservator of Forests.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 34 Spl.C.C.No.280/2010