Bangalore District Court
The State Of Karnataka vs Domian Joseph on 1 September, 2018
IN THE COURT OF THE LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU CITY
(CCH-77)
Present: Sri Sachin Kaushik R.N.,
B.Sc.,LL.M.,
LXXVI Addl.City Civil & Sessions Judge
& Special Judge, Bengaluru.
Dated this the 1st day of September 2018
Spl.C.No.172/2016
Complainant The State of Karnataka,
By Police Inspector,
Karnataka Lokayukta Police
Wing, City Division,
Bengaluru.
(Rep. By Spl.Public
Prosecutor)
-vs-
Accused Domian Joseph, s/o Victor
Livington, 45 years, Junior
Assistant, Meter Reader,
BESCOM, C5 Sub-Division,
L.R.Bande Road, Kaval
Byrasandra, Bengaluru-32,
r/at No.8, R.Krishnappa
Block, Kushalappa Layout,
Bhuvaneshwari Nagara,
Sultanpalya, R.T.Nagar,
Bengaluru-32.
1. Nature of Offence Offence punishable under
Section 7, 13(1)(d) R/w
13(2) of Prevention of
Corruption Act, 1988.
2. Date of commission of 25.08.2014
offence
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Spl.C No 172/2016
3. Date of First 25.08.2014
Information
4. Date of recording of 01.06.2017
evidence
5. Date of closing of 31.07.2018
evidence
6. Date of pronouncement 01.09.2018
of Judgment
7. Result Acting u/s 235(1) Cr.P.C.,
the accused is acquitted of
the offences punishable u/s
7. 13(1)(d)(i) R/w 13(2) of
Prevention of Corruption
Act, 1988.
3
Spl.C No 172/2016
JUDGMENT
The case of the prosecution is that the accused, being public servant, working as Meter Reader/Junior Assistant in BESCOM, Bengaluru, to permit the complainant to do Grill, Tiles & Wood work in first floor of House No.14/1, Ashokanagar, K.G.Nagar, Bengaluru, belonging to CW4, Shri Kandakumar, by taking illegal temporary connection from ground floor, demanded and accepted illegal gratification of Rs.3,000/-, and accepted Rs.1,000/- on 22.8.2014, and on 25.8.2014, has again demanded and accepted balance illegal gratification of Rs.2,000/- in front of Sri Sai Optical Shop, Sultanpalya, Bhuvaneshwari Nagar, Bengaluru, and thereby, has committed offence punishable u/s 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988. The Karnataka Lokayukta Police, Bengaluru, have filed charge sheet.
2. The accused has denied the charges and claimed to be tried.
3. The prosecution has examined in all 7 witnesses and got 22 documents and 15 materials marked. Ex.P7 is the Sanction and Acknowledgement of Metal Seal.
4. The accused has denied the allegations in S.313 Cr.P.C.
4Spl.C No 172/2016 statement, and has filed separate written statement, denying that he has demanded and accepted, bribe amount. The accused has got 1 document marked in cross-examination of PW1, i.e., letter of CW4 against accused to Lokayukta.
5. Heard Learned Spl.P.P and Learned Advocate for accused.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 7 of Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 13(1)(d)(i) R/w 13(2) of Prevention of Corruption Act, 1988?
3. What order?
7. The answers to the above points are:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: As per the final order, for the
following:
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Spl.C No 172/2016
REASONS
8. Points No.1 & 2: As the Points No.1 & 2 are
interconnected, they are taken together for consideration.
9. PW1, Sri Thiruuruvam, complainant, has deposed that, he was doing Building Contract Work, and Mason work. In the year 2014, he had contract work of construction of first floor building of CW4, Kandakumar, in house No.14/1, Ashokanagara, K.G.Nagar, Bengaluru. He had taken power connection from the ground floor for doing the tiles work and grill work. The BESCOM Employees came there and objected for the said power connection, and gave phone number of the accused. He spoke to the accused. He further stated that, two days later, the said two employees again came to the spot, and he made phone call to the accused. The accused demanded Rs.2,000/- from him for not obstructing the work. The accused asked him to come to Sultanpalya Main Road. The accused was standing in front of Muthoot Finance, and he demanded Rs.2,000/-. He gave Rs.2,000/- to the accused, and the accused assured that no obstruction will be caused. The conversation was recorded by him in his mobile. Three days later, the accused made a phone call again to him and demanded Rs.3,000/-. He paid Rs.3,000/- to the accused in Sultanpalya Main Road.On 20.8.2014, the accused again made 6 Spl.C No 172/2016 phone call demanding Rs.3,000/-, stating that, he is going to his native place. PW1 gave phone call to the building owner, CW4,Kandakumar. CW4 spoke to accused for about 1/2 hour in Tamil, and agreed to send Rs.2,000/- through PW1. PW1 paid Rs.1,000/- near Mannapuram Finance, Sultanpalya Main Road, prior to this demand. PW1 lodged complaint before the Lokayukta on 23.8.2014. On 24.8.2014, he got the mobile conversation converted to CD. On 24.8.2014, PW1 also tried to contact the accused, and the accused did not pick the mobile. On 25.8.2014, the accused called PW1 through his mobile, and asked him when he was coming to pay the amount. The complaint is marked as Ex.P1. The Lokayukta Police secured two Government Officials to act as witnesses. PW1 gave Rs.2,000/-, comprising 4 notes of Rs.500/-each. The Police smeared the said notes with Phenolphathalein Powder, and noted the serial number of the currency notes. One witness was instructed to keep the said notes in PW1's right side pant pocket, and the hands of the said witness were washed in sodium carbonate solution. The said solution turned to pink colour. PW1 was instructed to pay the amount only on demand and after acceptance to give signal by wiping hair. He was also instructed not to touch the amount. One of the witness was instructed to follow PW1 and observe what transpires between PW1 and accused. Entrustment Mahazar is marked as Ex.P2. At about 3.00 p.m., all of them left for 7 Spl.C No 172/2016 Bhuvaneshwari Auto Stand, Sultanpalya Main Road, Bengaluru. PW1 and one of the witness were waiting for accused at Sri Sai Optical shop. The accused made phone call to PW1, and asked him where he was. The accused came there and asked how much money PW1 has brought. PW1 said that he has brought Rs.2,000/-. PW1 gave the same and accused received said Rs.2,000/- with his right hand and kept it in his shirt pocket. PW1 gave pre-instructed signal. Lokayukta Team rushed there, seized the said notes, and the hand fingers of the accused were made to dip in sodium carbonate solution. The right hand wash solution turned to pink colour and left hand wash turned to dirt colour. The entire proceedings were videographed. PW1 identifies the Trap Mahazar. Ex.P3.
10. In the cross-examination of PW1, Ex.D1, letter of PW5 to Lokayukta is marked. He also says in chief-examination, 1 st para itself that, he had not taken permission for temporary connection to carry out Grill, wood & tiles work. He himself has been a wrong doer, and his evidence, does not inspire the confidence of court, as other witnesses have not fully supported him.
11. PW2, Sri Madhusudan A, working as SDA, in Department 8 Spl.C No 172/2016 of Development of Women & Child then, has deposed that, on 25.8.2014, he was called to the Lokayuktha Police station. He and CW3, Sri Vikram, went to Lokayukta Police station, and appeared before CW20, Sri Ravishankar, Police Inspector, at about 2.30 p.m. The complainant was also there. They were introduced to the complainant . The contents of the complaint were made known to them. The copy of the complaint was furnished to them. He came to know that, PW1 has lodged complaint against the accused for demanding bribe of Rs.2,000/-, for not obstructing the Grills, Tiles & Wood work on the first floor of the building, by taking illegal electric power supply from the ground floor. PW1 had produced Rs.2,000/- comprising 4 notes of Rs.500/-each. The list of currency notes were prepared, and the same was marked as Ex.P4. Phenolphthalein Powder was applied to the currency notes, and CW3, Vikram verified the same, and placed in the right side pant pocket of the complainant/PW1. The hand wash of Vikram in sodium carbonate solution, changed its colour. The complainant produced CD, and its contents were transcribed, and the same is marked as Ex.P5. Entire Pre trap proceedings were videographed and converted to CD. Digital Voice Recorder was given to PW1, and instructed to switch on while meeting the accused. PW2 was instructed to follow the complainant. PW2 identifies the Entrustment Mahazar.
9Spl.C No 172/2016
12. On 25.8.2014, at about 3.30 p.m., all of them left to Sultanpalya Road, R.T.Nagar, Bengaluru. PW2 was with PW1, and at that time, accused made phone call to PW1 asking whether he was there. After 5 minutes, accused came in his bike. The accused was sitting on the bike, and he asked PW1 as to when he came, whether the work is done, whether he has brought. Complainant/PW1 gave the money to the accused who received from his right hand and kept in his shirt pocket. PW1 gave pre-instructed signal.Lokayukta Team reached there, and PW1 showed the accused to them and said that he has received the money from them. The Lokayuktha Police Inspector introduced himself to accused by showing his ID, and as per the instructions of the Lokayukta Inspector, PW2 removed the money from the shirt pocket of the complainant and gave to Lokayukta Inspector. The said currency notes were tallied and found to be correct, and the said notes were seized. Both the hand fingers of the accused were washed separately in sodium carbonate solution. The right hand wash turned to pink colur and left hand washed turned to yellow colour. The said solutions were seized. The Lokayukta Inspector prepared the sketch, and seized the shirt of accused by making alternate arrangement. The accused was taken to KPTCL office, R.T.Nagar, Bengaluru, and the Attendance Register was seized. The Voice Recorder given to PW1 was played. Nothing was recorded. The conversation 10 Spl.C No 172/2016 recorded in the mobile phone of PW1 was played before them and the Officer of the accused. The contents were converted to CD and transcribed. The Superior Officer of the accused identified the voice of the accused, and submitted the Report. PW2 has given his statement and has identified the Trap Mahazar, Ex.P3. All the articles were seized under Metal Seal having letter 'V'and the Metal Seal was handed over to CW3, Vikram.
13. PW2 in chief-examination, at paragraph No.9 says, accused asked whether the complainant/PW1 has brought. In cross-examination, paragraph No.19 admits, that accused did not speak with PW1 about money. This shows that, he spells differently, at different points of time, and the demand, acceptance of bribe, does not build up.
14. PW3, Sri Vikram Y.Kanse, working as SDA in Department of Women & Children Welfare, Bengaluru, has deposed the same as PW2, and has identified Pre-Trap Mahazar, Ex.P2, Trap Mahazar, Ex.P3. He has given the Metal Seal, and the same is marked as MO1, and the acknowledgment for receiving Metal Seal is marked as Ex.P7.
15. PW3 is Entrustment Pancha, and in chief-examination, paragraph No.4, says that, PW1 & 2, went inside the office of 11 Spl.C No 172/2016 accused. This shows that, the spot as per PW3, is office of accused, while PW1, 2 & 7 say, it is in front of Sri Sai Optical Shop, Sultanpalya, Bhuvaneshwari Nagar. Hence, this material contradiction goes against prosecution case.
16. PW4, Sri G.R.Chandrashekaraiah, working as Superintending Engineer(Electrical), Bengaluru North, BESCOM, then, has deposed that, he received letters from ADGP, Lokayukta, Bengaluru, for Sanction to prosecute the accused. He has gone through all the records, and on finding prima facie case, and being satisfied, he has accorded Sanction. The said Sanction is marked as Ex.P7.
17. Ex.P7, Sanction runs into 5 pages, and PW4 has after perusal of documents, finding prima facie case, accorded Sanction. This Court finds the same legal and valid.
18. PW5, Kandakumar, has deposed that, he had given the construction work to PW1. The construction pertains to the first floor of the building. The KEB officials had threatened to disconnect power supply and demanded Rs.4,000/-. Initially, he gave Rs.2,000/- to PW1 to pay to KEB officials. Second time, PW1 again asked to pay Rs.2,000/- to pay to KEB officials, and he did not pay the amount.
12Spl.C No 172/2016
19. In the cross-examination of PW5, the accused has put only one suggestion, that he has no personal knowledge of demand of Rs.3,000/- as bribe by accused. This shows that, PW5 has not telephoned accused over payment of bribe, as stated by PW1 in his chief-examination, paragraph No.4, page No.3.
20. PW6, Smt.S.Neeru, working as Deputy Director, Truth Labs, Bengaluru, has deposed that, she received requisition letter dated 27.4.2015 from Lokayukta, Bengaluru, pertaining to Crime No.42/2014 to compare the voice of one of the speakers heard in the conversation contained in the CD. She received 3 CDs containing recordings. Two CDs had one recording each, and one CD had six recordings. The transcription was also received. On examination, she found that, the speakers heard in the recordings were the same as provided in the specimen voice, and accordingly, she has given Report marked as Ex.P8.
21. In cross-examination, PW6 at paragraph No.13, 2 nd line, has stated that, she has not received the original recording device. Therefore, the Report, Ex.P8 is not useful to prosecution.
22. PW7, Sri Ravishankar M.N., was working as Police 13 Spl.C No 172/2016 Inspector, Lokayukta then, and he registered the complaint and issued FIR marked as Ex.P10. The sample solutions , colour turned solutions during pre-trap mahazar are identified as MO2 & 3 respectively. The CD is marked as MO4, and the videograph of pre-trap proceedings is marked as MO5. He has given instructions to PW1 to 3, and has identified pre-trap mahazar as Ex.P2. He has deposed that the accused had already accepted the bribe amount of Rs.1,000/-, out of the demand of Rs.3,000/-. On 25.8.2014, at about 3.35 p.m. , the entire trap team went to Bhuvaneshwarinagar Auto stand. They reached the spot at 4.05 p.m. and at about 4.10 p.m., one person came on two wheeler and stopped near PW1 & 2. The said person talking to PW1, received the amount from PW1 by right hand, and put the same into left shirt pocket. PW1 gave signal by wiping his head, and all of them reached there. It was about 4.15 p.m. then. PW1 showed him the accused, and said that he has taken bribe of Rs.2,000/-from him. PW7 introduced himself to accused, and took the name, address and designation of the accused. He got the sodium carbonate solution prepared through his staff CW18, Umesh, and got hand fingers of accused dipped in the solution. The right hand fingers dipped solution changed to pink colour. The samples were taken, and he has identified them. The same are marked as MO6 to 10. The bribe amount was removed through PW2 and identified. The shirt was seized, and the 14 Spl.C No 172/2016 same is marked as MO11. The rough sketch of the spot is marked as Ex.P11. The conversation before the trap was transcribed, and the same is identified, which is marked as Ex.P6. The CD is marked as MO12. The entire Trap proceedings were videographed, and the CD is marked as MO13. The statement of accused is marked as Ex.P12, the Report identifying the voice of accused is marked as Ex.P13, attendance register extract is marked as Ex.P14, service details of the accused are marked as Ex.P16, call details are marked as Ex.P17, the sketch prepared by PWD at the spot is marked as Ex.P18, 164 Cr.P.C. statement of PW1 is marked as Ex.P19, panchanama pertaining to the recorded sample voice of accused is marked as Ex.P20, the CD pertaining to the sample voices is marked as MO14, the report of the Chemical Examiner is marked as Ex.P21, Certificate u/s 65B of the Indian Evidence Act is marked as Ex.P22 and the currency notes containing 4 notes of Rs.500/- each is marked as MO15. He has filed the charge sheet.
23. In the cross-examination, PW7, Investigating Officer, has stated that, he did not conduct the Panchanama, Ex.P3, fully at the spot. In addition, Ex.P3, also reveals that, it was conducted in BESCOM office and not at the spot. The Explanation of accused, Ex.P12, says that, money was thrust into his pocket.
15Spl.C No 172/2016
24. From above evidences, it can be clearly made out that, the spot as per PW1, 2 & 7, is one in Sultanpalya, while as per PW3, it is office of accused. PW7 has not conducted Panchanama at the spot. PW1 has not identified his S.164 Cr.P.C. statement, nor said about same, in his evidence. PW1, himself has taken illegal current connection, and he says accused demanded Rs.3,000/-, while PW2, as shown above, says accused did not demand the amount. The source of recording, is also not sent for Analysis. Hence, this court has come to the conclusion, that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. The benefit of doubt is given to accused, and Points No.1 and 2 are answered in the Negative.
24. Point No.3:- For the aforesaid reasons, this court proceeds to pass the following:
ORDER Acting u/s 235(1) Cr.P.C., the accused is acquitted of the offences punishable u/s 7, 13(1)(d)(i) R/w 13(2) of Prevention of Corruption Act, 1988.16
Spl.C No 172/2016 Bail bond of accused stands cancelled.
MO.1 to 15, shall be disposed as per law after appeal period.
(Dictated to the Judgment writer, on computer, and then pronounced by me in the open court on this the 1st day of September 2018) (Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City 17 Spl.C No 172/2016 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Thiruuruvam PW2 Madhusudan A PW3 Vikram Y.Kanse PW4 G.R.Chandrashekaraiah PW5 Kandakumar PW6 Smt.S.Neeru PW7 Ravishankar M.N
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW1
Ex.P.2 Entrustment Mahazar
Ex.P.2 (a) Signature of PW1
Ex.P.2(b) Signature of PW2
Ex.P.2(c) Signature of PW3
Ex.P.2(d) Signature of PW7
Ex.P.3 Trap Mahazar
Ex.P.3(a) Signature of the PW1
Ex.P.3(b) Signatures of PW2
Ex.P.3(c) Signature of PW3
Ex.P.3(d) Signature of PW7
Ex.P.4 Currency notes sheet
Ex.P.4(a) Signature of the PW2
Ex.P.4(b) Signature of PW7
Ex.P.5 Transcription sheet
Ex.P.5(a) Signature of PW2
18
Spl.C No 172/2016
Ex.P.5(b) Signature of PW7
Ex.P.6 Transcription
Ex.P.6(a) Signature of the PW4
Ex.P.7 Sanction order
Ex.P.7(a) Signature of the PW4
Ex.P.8 Report
Ex.P.8(a) Signature of PW6
Ex.P9 Covering letter
Ex.P10 FIR
Ex.P.10(a) Signature of PW7
Ex.P11 Rough sketch
Ex.P12 Statement of accused
Ex.P13 Report
Ex.P.14 Attendance Register
Ex.P.15 Service details of accused
Ex.P.16 Further service details of accused
Ex.P.17 Call details of complainant and
accused
Ex.P.18 Sketch of spot
Ex.P.19 S.164 Cr.P.C. statement
Ex.P.20 Sample voice Panchanama
Ex.P.20(a) Signature of PW7
Ex.P.21 Chemical Exminer's Report
Ex.P.22 Certificate u/s 65B of Indian Evd Act
List of material objects marked on behalf of the prosecution:
MO.1 Metal Seal
MO.2 Sample solution
MO.3 Sample solution turned toP pink
colour
MO.4 CD
19
Spl.C No 172/2016
MO.5 CD of pre-trap proceedings
MO.6 Sample solution
MO.7 Right hand fingers of accused
MO.8 Solution turned to pink colour
MO.9 Left hand fingers lof accused
MO10 Unchanged colour solution
MO.11 White colour shirt
MO.12 CD containing conversation
MO.13 Videograph of entire trap
proceedings
MO.14 CD of sample voice
MO.15 Currency notes (Rs.500/- x 4 =
Rs.2,000)
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
(Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City 20 Spl.C No 172/2016 21 Spl.C No 172/2016 22 Spl.C No 172/2016 23 Spl.C No 172/2016 24 Spl.C No 172/2016 25 Spl.C No 172/2016 26 Spl.C No 172/2016