Bangalore District Court
State By Deputy Superintendent Of vs Shivamadappa on 1 February, 2019
Spl.C.190/2016
1
IN THE COURT OF THE LXXVI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE,BENGALURU CITY
(CCH77)
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 February 2019
Spl.C.No.190/2016
Complainant State by Deputy Superintendent of
Police, City Division,
Karnataka Lokayukta,
Bengaluru.
(Rep.by Spl.Public Prosecutor)
vs
Accused 1. Shivamadappa,
s/o late Chikkamadegowda,
44 years, H.C.No.5116,
MICO Layout Police Station,
Bengaluru.
(Rep.by Sri Nanjundaswamy
Advocate)
2. Shivakumar K.M.,
s/o Moogegowda,
38 years,
P.C.No.8795, MICO
Layout Police Station,
Bengaluru.
(Rep.by Sri P.N.Hegde Advocate)
Spl.C.190/2016
2
1. Nature of Offence Offences punishable under
Sections 7, 13(1)(d) R/w 13 (2) of
the Prevention of Corruption Act,
1988.
2. Date of
Commission 22.01.2015
of offence
3. Date of First
Information Report 27.01.2015
4. Date of
commencement of 12.07.2018
recording of
evidence
6. Date of 11.12.2018
closing of evidence
7. Date of
pronouncement of 01.02.2019
Judgment
Acting under Section 235(1) of
8. Result of the case Cr.P.C., the accused No.1 & 3 are
acquitted of the offences
punishable under sections 7,
13(1) (d) R/w 13(2) of Prevention of
Corruption Act, 1988.
Spl.C.190/2016
3
JUDGMENT
The prosecution case is that the accused No.1 & 3, Shivamadappa & Shivakumar, respectively, being public servants, working as Head Constable & Constable in Mico Layout Police station then, have on 22.1.2015, demanded and accepted illegal gratification of Rs.50,000/, out of total Rs.1,50,000/, from the complainant, through CW12 & 13, Kumari Naveen and Sri.Hemant, respectively, and also 1 blank cheque of Yes Bank, Kormanagala, Bengaluru, for not arresting complainant and his wife, and protecting them in case registered against them, in Mico Extension P.S. Crime No.91/15, under provisions of Prevention of Immoral Traffic Act. On 27.1.2015, the accused No.3, on say of accused No.1, near Yes Bank ATM, near Gokul Cafe, Silk Board Road, B.T.M., Extension, Bengaluru, has demanded and accepted another part of illegal gratification of Rs.50,000/ from the complainant. The Lokayukta Police have filed charge sheet against accused No.1 & 3 for the offences u/s 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988, and let off accused No.2, as no case was made out against him, and shown him as charge sheet witness No.5.
2. The accused No.1 & 3 have denied the charges and claimed to be tried.
Spl.C.190/2016 4
3. The prosecution has examined in all 5 witnesses and got 27 documents and 16 materials marked.
4. The accused No.1 & 3 have denied the allegations in their Section 313 Cr.P.C. statements.
5. Heard the learned Spl.P.P. and learned Advocates for accused No.1 and 3.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that the accused No.1 and 3 have committed offence punishable u/s 7 of the Prevention of Corruption Act?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1 and 3 have committed offence punishable u/s 13(1)(d) R/w 13(2) of the Prevention of Corruption Act?
3. What order?
7. The answers to the above points are:
Spl.C.190/2016 5 Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order, for the following:
REASONS
8. Points No.1 and 2: As the Points No.1 & 2 are inter connected, they are taken together for consideration.
9. PW1, Sri Anand Kumar Soni, complainant, has stated that, he and his wife Smt.Gunavantibai, have Beauty Parlour in Belekalli, Bengaluru, in the name and style of ' Fashion Express'. He was running business for the past 4 years prior to this incident. About 3 to 3 ½ years back, he received telephone call from a person asking him to come to his Parlour as there is a problem there. It was about 9.30 a.m. then, and the person said that the police from MICO Layout Police station have come there. He could not go there as he was out of City. At about 6.00 p.m., he came to know that the police have locked his Parlour. His friend, Kishen, CW11, helped him, and he complained to Lokayukta Police. The complaint is marked as Ex.P1. Ex.P1 was written by CW11, Sri Kishen. After that, he went to Gokul Restaurant near BTM layout, and handed over the amount of Rs.50,000/ to the accused. He Spl.C.190/2016 6 has identified the accused who are before court. The said Rs.50,000/ is marked as MO1. The hand fingers wash of accused is marked as MO2 to 4. Pretrap panchanama is marked as Ex.P2. He has said that the police demanded Rs.2,00,000/ for not registering the case against him and his wife. The list of currency notes is marked as Ex.P3. The solutions in which CW2's hands were washed and turned to pink colour is marked as MO6 and7.
10. PW1, complainant, has turned hostile. In paragraph Nos.9, 10 & 13, crossexamination by Learned Spl.P.P., he has denied that he has given complaint against accused No.1 & 3, C.D. along with complaint, and accused No.1 & 3 demanded and accepted, bribe of Rs.50,000/. He has also denied that he has given blank cheque of his wife In paragraph No.5 of chiefexamination, he says, he does not remember, to which accused, that is, accused No.1 & 3, he has handed the amount of Rs.50,000/. His evidence is not believable, and he does not support the prosecution case.
11. PW2, Sri Allabakash, has stated that, on 27.1.2015, the Lokayukta Police took him and CW3 to their office and introduced PW1 to them. The Lokayukta Police told about the details of complaint, and that accused No.1 and 3 have Spl.C.190/2016 7 demanded bribe of Rs.2 lakhs and have asked PW1 to come with Rs.50,000/ cash near Yes Bank ATM, BTM Layout, Bengaluru. PW1 brought Rs.50,000/ containing 92 notes of Rs.500/ each and 4 notes of Rs1,000/ each. The police prepared the list of currency notes, Ex.P3. Chemical was applied to the notes, MO1, and he kept it in the right side pant pocket of PW1. He identifies MO6 & 7 solutions of his hand wash. He has identified the CD demanding money, MO5. The police instructed him to follow PW1. He identifies pretrap panchanama, Ex.P2. He further states that, all of them went to BTM Layout, near Yes Bank ATM. Accused No.1 was not there. PW1 telephoned and accused No.1 asked him to come near Udupi Gokul Cafe. PW1 went by walk to the said place and all others followed him. The accused No.1 & 3 and PW1 had coffee/tea in the said hotel. PW1 was instructed to lift his hands after the accused received the amount. PW1 gave pre instructed signal. All of them including him, went to the spot and found that MO1 was in the right side pant pocket of accused No.3. CW3 removed the amount, MO1, from the pocket of accused No.3. The hands of accused No.3 were washed and it turned to pink colour. PW2 identifies MO2 to 4. The notes were tallied and found correct. The pant of accused No.3 was seized i.e., MO8. The police wrote pretrap panchanama, Ex.P5, and the rough sketch of the spot is identified by PW2 and marked as Ex.P6. The conversation Spl.C.190/2016 8 transcribed pertaining to 22.1.2015 is marked as Ex.P7, and the transcription pertaining to conversation of 23.1.2015 is marked as Ex.P8 and that of 24.1.2015 is marked as Ex.P9, and that during trap is marked as Ex.P10. PW2 identifies the CD pertaining to specimen voice and videograph, MO13 & 14, and CD of trap panchanama proceedings, MO11, CD of conversation between PW1 and accused No.1 & 3, MO9, CD of videograph of pre trap proceedings, MO10, and CD of conversation between PW1 and accused No.1, MO12. The documents pertaining to PW1 were recovered from the Police station, Ex.P11.
12. In crossexamination by Learned Spl.P.P for accused No.3, PW2, states in paragraph No.13 of his deposition that, he has not overheard the conversation or seen anything, till he reached spot, after receiving signal. Hence, even this witness, has not spoken of witnessing the offence.
13. PW3, Sri Mohammed Ghouse, has stated that, PW2 was also working with him, and he and PW2 went to the Lokayukta Police station. PW3 identifies list of currency notes, Ex.P3, pretrap panchanama, Ex.P2, trap panchanama, Ex.P5. PW2 has given the two metal seals containing letters 'U' & 'T' marked as MO15 & 16. PW3 further states that, the hands of PW2 were washed in solution and it turned to pink colour Spl.C.190/2016 9 which is marked as MO6 & 7. He also identifies hand wash of accused No.3, MO2 to 4. He states that he removed Rs.50,000/ from the pocket of accused No.3 and gave to Lokayukta Police. He has stated that all of them went near Udupi Gokul Cafe, BTM Layout and from there to Silk Board. PW3 identifies the rough sketch, Ex.P6, and acknowledgment, Ex.P14 and 15. The explanation of accused No.3 is marked as Ex.P16, and report of identification of voice by CW4 is marked as MO17. PW3 identifies the transcriptions, Ex.P7 to 10.
14. PW3, another Pancha, has in paragraph No.8 of his deposition said that, he has not seen pant of accused No.3 being seized. In paragraph No.14, he denies that documents were seized, and in paragraph No.6, he denies that he was introduced to complainant, and complainant gave trap amount of Rs.50,000/ to Lokayukta Police for laying the trap. Thereby, his evidence is also not useful to prosecution.
15. PW4, Sri H.S.Venkatesh, working as Dy.S.P., in Karnataka Lokayukta, City Division, Bengaluru, then, has deposed that, on 27.1.2015, his senior officer called him and told him that PW1 has brought a complaint and showed PW1 and asked him to take steps. He came to the office along with PW1 and took the written complaint and audio CD from PW1. He heard the CD and after confirmation, registered the Spl.C.190/2016 10 complaint. The complaint is identified which is already marked as Ex.P1 and F.I.R. is marked as Ex.P18. He secured two witnesses, PW2 & 3, and followed the PreTrap proceedings. He identifies the list of currency notes, Ex.P3, hand wash of PW2, MO6 & 7, CD of videograph of pretrap proceedings, MO10. He gave instructions to PW1 to give signal by wiping head after the accused receives the amount. He instructed PW2 to follow PW1 and note the happenings. He gave Digital Voice Recorder to PW1 and instructed him to switch on while meeting the accused. He drew the PreTrap Mahazar which is already marked as Ex.P2. At about 5.10 p.m., all of them reached Udupi Hotel in BTM Layout, Bengaluru, where the accused had asked to come. At about 5.45 p.m., PW1 went front, followed by PW2. He and the team were watching from a distance. After sometime, PW1 gave pre instructed signal by wiping his head. It was about 6.30 p.m. then, and he and his staff and another pancha, PW2, all went near the accused. PW1 pointed out to accused No.1 and said that on his say,he has given the amount to accused No.3. PW1 also said that accused No.3 received the amount and kept in his right side pant pocket. PW4 identifies accused No.1 and 3.
16. PW4 further states that, he sent Inspector, Muniyappa to arrest accused No.2, Manjunath, Police Inspector of MICO Spl.C.190/2016 11 layout Police station. PW4 identifies the hand wash of accused No.3 which turned to pink colour, MO2 to 4. He got the amount, MO1 removed from the pant pocket of accused No.3 through PW3. He found the same notes correct. He drew rough sketch of the spot. He seized the pant of accused No.3, MO8. He got the S.H.D., Ex.P11, which contains the duties of accused. He took the Digital Voice Recorder from PW1 and played the same in laptop and burnt to CD, MO9. The transcription pertaining to the conversation of trap is marked as Ex.P10. He got the voice of accused No.1 & 3 identified through CW4, Sri Nangegowda, P.S.I., of MICO layout Police station and the Report is marked as Ex.P17. The videograph of trap proceedings is marked as MO11. He seized all the articles by using the seals,MO15 & 16 and obtained acknowledgment, Ex.P14 & P15 and seals, He recorded the statements of PW2 & 3, and took the explanation of accused No.3, Ex.P16. He drew the panchanama, Ex.P5, and then handed over further investigation to PW5.
17. In crossexamination by Learned Advocate for accused No.3, PW4 has admitted that in complaint, Ex.P1, there is no allegation against accused No.3, and in Ex.P16, Explanation of accused No.3, accused No.3 has stated that, amount, MO1, was asked to be taken by accused No.1 and count, when accused No.1 had taken accused No.3 to Hotel Gokul, and Spl.C.190/2016 12 accused No.3 does not know, what the amount was meant for As such, nothing is built up against accused No.3. So also, PW1 to 3 not supporting prosecution case, evidence against accused No.1, is also not built up. PW4 has also not said that he has seen PW1 paying the tainted amount to accused No.3, on say of accused No.1.
18. PW5, Sri R.Sudhir, working as Police Inspector in Karnataka Lokayukta, Bengaluru City Division, has deposed that, he received the file with all materials on 12.2.2015. He received the CC TV footage from Manager, Yes Bank, BTM Main Road, Bengaluru on 23.3.2015, and the same is marked as Ex.P20. The panchanama pertaining to sample voice of accused No.1 & 3 is marked as Ex.P21. He recorded the statements of witnesses and received F.S.L. Report pertaining to voice of accused No.1 & 3 on 6.7.2015. The same is marked as Ex.P22. The chemical analysis report is marked as Ex.P23, and sketch of the spot prepared by Assistant Engineer, PWD, Bengaluru, is marked as Ex.P24, service particulars of accused No.1 to 3 are marked as Ex.P25, call details of the accused and PW1 is marked as Ex.P26, the certificate u/s 65B of Indian Evidence Act given by him is marked as Ex.P27. He has filed the charge sheet.
19. PW5 in crossexamination has admitted that, the name Spl.C.190/2016 13 of accused No.3 is not in complaint, Ex.P1, or FIR, Ex.P18. He has said that he has not sent source of recording to F.S.L., for voice analysis. By this the C.Ds & transcriptions, Ex.P7 to 10 does not stand proved.
20. From above evidences, it can be seen that complainant/PW1, has turned hostile. PW2, shadow witness has said, he has not overheard conversation. PW3, another Pancha, has said he has not seen pant, MO8 being seized, or documents being seized or PW1 giving MO1, Rs.50,000/ to police for laying trap. Investigating Officers have not sent the source of recording to F.S.L., and there is no evidence against accused No.1 & 3. Therefore, this court has come to the conclusion that the prosecution has failed to prove the guilt of accused No.1 & 3 beyond reasonable doubt, and giving benefit of doubt to accused No.1 & 3, Points No.1 & 2 are answered in the Negative.
21. Point No.3: For the aforesaid reasons, this Court proceeds to pass the following:
ORDER Acting under section 235(1) of Cr.P.C., the accused No.1 and 3 are acquitted of the offences punishable under Sections 7, 13(1)(d) R/w 13(2) of Spl.C.190/2016 14 Prevention of Corruption Act, 1988.Bail bonds of the accused No.1 and 3
stand cancelled.
MO1 to 16 shall be disposed as per law, after appeal period.
(Dictated to the Judgment Writer on computer, corrected, and then pronounced by me in the open court on this the 1st day of February 2019) (Sachin Kaushik R.N) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
(CCH77) Spl.C.190/2016 15 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Anand Kumar Soni PW2 Allabakash PW3 Mohammed Ghouse PW4 H.S.Venkatesh PW5 R.Sudhir
List of documents marked on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of PW1
Ex.P2 Pretrap panchanama
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW2
Ex.P2(c) Signature of PW3
Ex.P2(d) Signature of PW4
Ex.P3 Currency notes sheet
Ex.P3(a) Signature of PW1
Ex.P3(b) Signature of PW2
Ex.P3(c) Signature of PW3
Ex.P3(d) Signature of PW4
Ex.P4 Statement of PW1
Ex.P5 Trap Mahazar
Spl.C.190/2016
16
Ex.P5(a) Signature of PW2
Ex.P5(b) Signature of PW3
Ex.P5(c) Signature of PW4
Ex.P6 Rough sketch
Ex.P6(a) Signature of PW2
Ex.P6(b) Signature of PW3
Ex.P6(c) Signature of PW4
Ex.P7 Transcription
Ex.P7(a) Signature of PW2
Ex.P7(b) Signature of PW3
Ex.P8 Transcription
Ex.P8(a) Signature of PW2
Ex.P8(b) Signature of PW3
Ex.P9 Transcription
Ex.P9(a) Signature of PW2
Ex.P9(b) Signature of PW3
Ex.P10 Transcription
Ex.P10(a) Signature of PW2
Ex.P10(b) Signature of PW3
Ex.P10(c) Signature of PW4
Ex.P11 Documents pertaining to PW1
Ex.P12 Statement of accused No.1 & 3
Ex.P13 Transcription & CD
Ex.P14 Acknowledgment of seal 'U'
Ex.P15 Acknowledgment of seal 'T'
Ex.P16 Explanation of accused No.3
Ex.P16(a) Signature of PW3
Spl.C.190/2016
17
Ex.P16(b) Signature of PW4
Ex.P17 Transcription of voice
Ex.P17(a) Signature of PW3
Ex.P17(b) Signature of PW4
Ex.P18 F.I.R
Ex.P18(a) Signature of PW4
Ex.P19 Sanction order(by consent)
Ex.P20 Yes Bank photos
Ex.P21 Sample voice of accused No.1
Ex.P21(a) Signature of PW5
Ex.P22 Report
Ex.P23 Chemical analysis report
Ex.P24 Sketch
Ex.P25 Service particulars
Ex.P26 Call details
Ex.P27 Certificate u/s 65B of Indian
Evidence Act
Ex.P27(a) Signature of PW5
List of material objects marked on behalf of the prosecution:
MO1 Currency notes Rs.50,000/
MO2 Solution
MO3 Fingers of accused dipped in
solution
MO4 Pink colour solution
MO5 CD along with complaint
Spl.C.190/2016
18
MO6 Solution
MO7 Handwash of accused which
turned to pink colour
MO8 Pant of accused No.3
MO9 to 14 CDs
MO15 & 16 Metal seals
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 (CCH77) Spl.C.190/2016 19