Bangalore District Court
The State Of Karnataka vs Mr.Thimmaraju on 23 December, 2016
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 23rd DECEMBER 2016.
Spl. C.C.No. 139/2009
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing,
Bengaluru
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr.Thimmaraju, Major,
Probationary Mazdur Gangmen,
Operation & Maintenance,
7th North Sub-Division,
BESCOM, Bengaluru.
(Rep by Sri C.G.Sundar, Advocate)
*****
2 Spl. C.C. No.139/2009
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 02-02-2009.
of offence:
3. Date of First Information 02-02-2009.
Report:
4. Date of Arrest: 02-02-2009.
5. Date of Commencement 16-07-2014.
Of recording of evidence:
6. Date of Closing of evidence: 21-11-2016.
7. Date of Pronouncement of 23-12-2016.
Judgment.
8. Result of the case: Accused is acquitted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegation that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as probationary gang-man in No.7, Sub-Division, Kurubarahalli, O & M BESCOM, Bengaluru. One Jagadeesh has lodged a complaint before 3 Spl. C.C. No.139/2009 the Lokayuktha Police on 02-02-2009 by contending that he is a licensed electrical contractor and on behalf of the building owner Smt. Mamatha, an application was filed before the office of the accused, for conversion of LT2 electrical connection to LT 3 electrical connection. It was alleged in the complaint that, this accused has demanded the bribe amount of Rs.8,000/- from the complainant for the purpose of converting the tariff. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.11/2009. The Investigating Officer secured the witnesses and conducted the pre trap proceedings in their presence and drawn pre trap mahazar. On 02-02-2009, at about 4.40 p.m. in the office of the accused at Kurubarahally, Bengaluru, this accused was trapped by the Lokayuktha Police, when he has received the bribe amount of Rs.8,000-/- from the complainant. The Investigating Officer has conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before this court. The Investigating Officer has continued the investigation, recorded the statement of witnesses, collected the documents, chemical analysis report and submitted final report along with the prosecution papers before the sanctioning authority. After obtaining the sanction from the competent authority, Lokayuktha Police have filed the charge sheet against this accused 4 Spl. C.C. No.139/2009 with an allegations that he has committed the offences punishable under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 6 witnesses as PW.1 to 6 and got marked Ex.P-1 to P-26 documents and MO.1 to 11 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not chosen to let in any defence evidence on his behalf.
6. I have heard the arguments of both the parties.
5 Spl. C.C. No.139/2009
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Probationery Mazdoor Gangmen in No.7 Sub-Division, O & M Bescom, Bengaluru, demanded the bribe amount of Rs.8,000/- from the complainant for conversion of LT-2 electrical connection into LT-3 electrical connection to the house of one Mamatha and accepted the illegal gratification of Rs.8,000/- from the complainant on 02-02-2009 at about 4-40 PM, in his office at Kurubarahalli, Bengaluru, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Probation Mazdoor Gangmen in No.7 Sub-
Division, O & M Bescom, Bengaluru, on 02-02-2006 abused his official position by illegal means and as a public servant, demanded and accepted the illegal gratification of Rs.8,000/- from the complainant, against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
6 Spl. C.C. No.139/2009
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant working as Probationary Gangmen in BESCOM and the allegations against him is about he committing the offences under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988, obtaining the valid sanction from the competent authority is the statutory and mandatory requirements to prosecute the accused. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let in by the prosecution before this court.
10. CW.1-Jagadish, who was examined as PW.1, deposed during the course of his evidence that, he is a licensed electrical contractor and during the year 2009, accused was working as a gang-man in 7 Spl. C.C. No.139/2009 No.7, Sub-Division, Kurubarahalli, O & M BESCOM, Bengaluru. PW.1 further deposed that, one Mamatha, who was his consumer, has asked him to attend the work relating to change of electricity connection from domestic use and to commercial use and given him a letter of authority as per Ex.P.1. PW.1 further deposed that, when he contacted the accused over the phone, accused asked him to pay Rs.8,000/- for doing the said work. PW.1 further deposed about he lodging the complaint before the Lokayuktha Police as per Ex.P.2 and Lokayuktha Police have conducted the pre trap proceedings in his presence and drawn the pre trap mahazar as per Ex.P.8. PW.1 further deposed that, along with the witnesses and Lokayuktha Police staff, they proceeded to the office of accused at Kurubarhally and when he met the accused, he demanded Rs.8,000/- and accordingly, he handed over the tainted notes to the accused. PW.1 further deposed that, after receiving signal from him, Lokayuktha Police have entered the office of accused and accused was trapped and tainted currency notes were recovered from him. PW.1 further deposed that, hand wash proceeding of the accused was conducted and the sodium carbonate solution, in which the hands of the accused were washed, turned into pink colour. PW.1 further deposed about the Lokayuktha Police drawing the trap mahazar as per Ex.P.10.
8 Spl. C.C. No.139/2009
11. CW.2-K. Prakash, who was examined as PW.2, deposed during the course of his evidence that, during the year 2009, he and CW.3 were working in the office of Deputy Commissioner and as per the direction of the Additional Deputy Commissioner; they appeared before CW.10 on 02-02-2009. PW.2 further deposed that, PW.1 was present in the office of CW.10 and pre trap proceedings were conducted in their presence and pre trap mahazar was drawn as per Ex.P.8. PW.2 further deposed that, thereafter they went near the office of accused at Kurubarahally and he and PW.1 entered the office and accused was not present there. PW.2 further deposed that, thereafter accused came near the bakery, near by his office and spoke to PW.1 and thereafter received the currency notes. PW.2 further deposed that, Lokayuktha Police have caught hold the accused and brought to his office and tainted currency notes were recovered and hand wash proceedings of the accused were conducted. PW.2 further deposed that, pre trap mahazar was drawn in his presence as per Ex.P.9.
12. CW.3-B.C.Jagannatha, who was examined as PW.3, deposed during the course of his evidence that, he and CW.2 were working in the office of Deputy Commissioner, Bengaluru Rural district and on 02- 02-2009, and they appeared before CW.10. PW.3 further deposed 9 Spl. C.C. No.139/2009 that, PW.1-Jagadeesh was present and pre trap proceedings were conducted in their presence and pre trap mahazar was drawn as per Ex.P.8. PW.3 further deposed that, after the pre trap mahazar, they went near the office of accused at Kurubarahally and CW.1 and 2 proceeded inside the office of accused and came back by saying that accused was not present in the office. PW.3 further deposed that, then the accused was contacted by PW.1 and accused replied that he would come back within ten minutes and thereafter when PW.1 and 2 were waiting in front of bakery, accused came back. PW.3 further deposed that, after some time PW.1 gave the signal and they rushed near the bakery and on enquiry, accused took the cash from his pant pocket and same was seized by the Lokayuktha Police. PW.3 further deposed that, hand wash proceedings of the accused was conducted and finger wash was seized by the Lokayuktha Police. PW.3 further deposed about drawing the trap mahazar as per Ex.P.9.
13. CW.10-Irshad Ahmed Khan, who was examined as PW.4, deposed during the course of his evidence that, on 02-02-2009 at about 2.15 p.m., CW.1 appeared before him and lodged a complaint as per Ex.P.2, on the basis of which, he has registered the FIR. PW.4 further deposed that, he secured CW.2 and 3 as witnesses and 10 Spl. C.C. No.139/2009 conducted pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.8. PW.4 further deposed that, thereafter they went near the office of accused at Kurubarahally and CW.1 and 2 entered the office and came back and told that accused was not present in the office. PW.4 further deposed that, subsequently accused came and he noticed the accused receiving the money from PW.1 and PW.1 gave the signal to them. PW.4 further deposed that, after receiving the signal, they went near the accused and accused was holding the tainted currency notes and same was seized by them. PW.4 further deposed that, they have conducted the hand wash procedures of the accused and hand wash was seized and trap mahazar was drawn as per Ex.P.9. PW.4 further deposed that, CW.4 was secured to the spot and recordings in the voice recorder was shown to him and he identified the accused and his voice in those recordings. PW.4 further deposed that, accused has given statement before him as per Ex.P.15 and he has also seized the documents and attendance register from the office of the accused. PW.4 further deposed that, he continued the further investigation, recorded the statement of witnesses and obtained the chemical analysis report. PW.4 further deposed that, during the course of investigation, he has received the service particulars of the accused, sketch of the spot and 11 Spl. C.C. No.139/2009 submitted the final report before the sanctioning authority. PW.4 further deposed that, after receiving the sanction, he has filed the charge sheet before this court.
14. CW.9- A.N. Murthy, who was examined as PW.5, deposed during the course of his evidence that, during the year 2009 accused was working as probationary gang-man in 7th North Sub-Division, BESCOM, Bengaluru and accused was a temporary employee of BESCOM. PW.5 further deposed that, he received a letter dated: 07- 02-2009 from ADGP Lokayuktha seeking sanction to prosecute the accused and along with the said requisition letter, ADGP, Lokayuktha has sent the copy of the complaint, FIR, pre trap mahazar, trap mahazar, chemical analysis report, spot sketch, statement of witnesses, file relating to the alleged demand of bribe and explanation given by the accused. PW.5 further deposed that, on the basis of the said documents produced by the Lokayuktha Police, he convinced that the sanction to prosecute the accused can be issued and accordingly, he has issued the sanction as per Ex.P.26. PW.5 further deposed that, he is the competent authority to issue the sanction.
15. CW.4- K.S.Vishwanath, who was examined as PW.6, deposed during the course of his evidence that, on 02-02-2009, when he was in 12 Spl. C.C. No.139/2009 his house, he received a phone message from Lokayuktha Police about they trapping the accused and asked him to come to their office. PW.6 further deposed that, Lokayuktha Police have obtained some documents and obtained his signature on Xerox copies of those documents. PW.6 further deposed that, Lokayuktha Police have displayed audio recordings in his presence and asked him to identify the voice and he identified the said voice as the voice of the accused and contractor.
16. There is no dispute that the accused is a public servant, working as a probationary Mazdur Gangmen in BESCOM. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
17. In order to prove the sanction and validity of sanction, prosecution examined CW.9 Sri A.N.Murthy as PW.5, who deposed about he receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.5 further deposed that he has perused all those papers and convinced that sanction to prosecute 13 Spl. C.C. No.139/2009 the accused can be issued and accordingly issued the sanction order as per Ex.P.26.
18. There is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.5 to prosecute the accused. There is no serious dispute as such regarding the authority of CW.9 to accord the sanction to prosecute the accused, being the Executive Engineer of BESCOM. There is also no dispute regarding application of mind by the sanctioning authority before according the sanction to prosecute the accused. In-fact there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charges against the accused. Under such circumstances, one cannot say that the sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative. 14 Spl. C.C. No.139/2009
POINT No.2 & 3:
19. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a probationary Mazdur Gangmen in No.7, O & M BESCOM, Bengaluru, demanded the bribe amount of Rs.8,000/- from the complainant for the purpose of conversion of LT 2 electrical connection to LT 3 electrical connection to the residential house of one Mamatha and accepted the bribe amount of Rs.8,000/- on 02-02- 2009, in his office at Kurubarahalli Benagaluru and was trapped by the Lokayuktha Police.
20. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, accused can be held as guilty of 15 Spl. C.C. No.139/2009 committing the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
21. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. 16 Spl. C.C. No.139/2009 However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
22. Same view was expressed by the Hon'ble Supreme Court in the decisions reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and Hon'ble' High Court of Karnataka in a decision reported in 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
17 Spl. C.C. No.139/2009
23. It is the specific contention of the accused before this court that, no official act or duty relating to the complainant is to be performed by the accused in respect of application filed for change of tariff, as on the date of complaint or on the date of trap. Therefore, according to the accused, question of he demanding and accepting the bribe amount from the complainant would not arise. It is the case of the accused that, application filed by one Mamatha, in respect of which the complaint was lodged by the complainant, is to convert the LT-2 into LT-3 connection. That application was addressed to the Assistant Executive Engineer of the BESCOM and it is he, who has to pass an order for conversion of LT-2 connection into LT-3 connection. According to the accused, he was serving as a probationary majdoor gangman in BESCOM and he has no official act or duty to do in respect of that application. Therefore, according to the accused, question of he demanding the bribe amount and accepting the same would not arise. In respect of this contention, accused drawn the attention of this court to the evidence of PW.1, 4 to 6, application given for conversion of tariff as per Ex.P.13 and also the service particulars and duty particulars of the accused, which are marked as per Ex.P.23 and Ex.P.24.
18 Spl. C.C. No.139/2009
24. There is no dispute that the accused was serving as a probationary majdoor gang-man in BESCOM. It is also an undisputed fact that one Mamatha has filed application on 22-01-2008 seeking conversion of LT-2 connection into LT-3 connection for her residential house. The copy of the application was produced and marked as per Ex.P.13. That application was addressed to the Assistant Executive Engineer, (Electrical) BESCOM No.7, Sub-Division, Kurubarahalli, O & M, BESCOM, Bengaluru. It is the allegation of the complainant that in respect of that application and to change the tariff from LT-2 connection into LT-3 connection, there was demand of the bribe amount by the accused.
25. Now, it is relevant to refer some of the statements given by the complainant, who was examined as PW.1, during the course of his cross-examination. In page No.5 of his cross-examination, PW.1 specifically deposed that the application for change of tariff was addressed to the Assistant Executive Engineer. PW.1 also deposed that the Assistant Executive Engineer is empowered to change the power connection. PW.1 also admitted that the accused was then working as a gang-man. PW.1 also said that, he knows about the nature of the duties of the accused to be performed as a gang-man. So, all these statement of complainant/PW.1 makes it explicitly very clear that the 19 Spl. C.C. No.139/2009 accused was working as a gang-man, whereas the application for change of tariff was addressed to the Assistant Executive Engineer, who is empowered to pass an order regarding change of tariff.
26. Now, it is relevant to refer the evidence of CW.9, who has issued the sanction to prosecute the accused and who was examined before this court as PW.5. In page 2 of his cross-examination, PW.5 specifically admitted that one Mamatha has addressed the application as per Ex.P.13 to the Assistant Executive Engineer. PW.5 also admitted that Assistant Executive Engineer is competent to pass an order for conversion of LT-2 connection into LT-3 connection. PW.5 further admitted that accused has no vested power to pass an order for conversion of LT-2 connection into LT-3 connection. PW.5 further deposed that this accused was working as gang-man on probationary basis in No.7 Sub-division. So, statement of PW.5 also goes to show that application for conversion of tariff was submitted to the Assistant Executive Engineer, who is empowered to pass an order for conversion of LT-2 connection into LT-3 connection.
27. Now, it is relevant to refer some of the statement given by the CW.4, who was examined as PW.6. In-fact, PW.6 was working as Assistant Executive Engineer in the BESCOM, when the alleged trap 20 Spl. C.C. No.139/2009 was laid. PW.6 was examined before this court to prove that he has handed over some documents to the investigating agency during the course of investigation and the audio and video recordings were displayed before him, in which he has identified the accused and his voice. During the course of his cross-examination, PW.6 has also admitted that Ex.P.13 application was given by one Mamatha and same was addressed to Assistant Executive Engineer and said application was for conversion of LT-2 connection into LT-3 connection. PW.6 further deposed that it is only the Assistant Executive Engineer, who has to process and issue order for conversion of LT-2 connection into LT-3 connection and the accused is in no-way concerned with Ex.P.13 application. So, statement given by PW.6 would also establish that it is the Assistant Executive Engineer, who is empowered to pass an order for conversion of tariff from LT-2 connection into LT-3 connection and accused, being the probationary gang-man, has got nothing to do with the said application. So, all these statements given by the prosecution witnesses would demonstrate before this court that accused has got nothing to be performed in respect of the application filed for change of tariff.
28. In spite of all these statements given by the witnesses, still this court would have discarded them and held that accused has got 21 Spl. C.C. No.139/2009 official duty to be performed towards the complainant, if there is any documentary evidence to show that, accused, being the probationary gang-man, has got some official duty to be performed in respect of the application given for conversion of tariff from LT-2 to LT-3 connection. Absolutely, no documents were produced by the prosecution to show that accused has got some official act to be performed in respect of the application given for change of tariff.
29. It is true that the order for change of tariff has to be passed by the Assistant Executive Engineer. On that score only, one cannot say that the entire official act relating to that application has to be done by the Assistant Executive Engineer only. Upon receiving the application, file has to be placed before the Assistant Executive Engineer, who has to pass an order. If the accused has to perform any other clerical duties or official act in respect of that application, still this court would have accepted the prosecution version that the accused has got some official act to be done in respect of the application filed for change of tariff. The prosecution failed to say what is the actual act to be performed by the accused in respect of the application submitted for change of tariff.
22 Spl. C.C. No.139/2009
30. During the course of investigation, Investigating Officer has secured the service and duty particulars of the accused and also sought some clarification from the BESCOM regarding the duties of the accused. The BESCOM has furnished those particulars, as sought by the Investigating Officer and they were marked as per Ex.P.23 and 24. As per Ex.P.23, Lokayuktha Police have sought the information regarding the actual duty to be performed by the accused, along with the other service particulars. While furnishing the service particulars regarding the actual duty to be performed by the accused, it is stated in Ex.P.23 that, the accused has to do the work relating to drawing of electricity lines, cutting of branches of the trees and digging of pits for laying the electricity poles. It is only the duties, which are to be performed by the accused, being the probationary gang-man. As per Ex.P.23, no duty cast upon the accused in respect of application filed for change of tariff. The accused was also no assigned with any clerical duty in the office to verify the application filed for change of tariff and put the file before the Assistant Executive Engineer to get his signatures.
31. The Lokayuktha Police have sought clarification from BESCOM in the form of questionnaire regarding the duties of accused and also act to be performed by the accused in respect of file relating 23 Spl. C.C. No.139/2009 to the complaint lodged by complainant. Those particulars were furnished as per Ex.P.24. Again in Ex.P.24, while answering the question No.1 BESCOM officials have reiterated the duties of the accused like drawing the electricity lines, cutting the branches of the tree and digging the pits for laying the electricity poles. Regarding question No.2 about act to be performed by the accused in respect of the application filed for change of tariff, it has been specifically stated in Ex.P.24 that it do not come within the official act and jurisdiction of the accused. So far as the question No.3, which is relating to the application for change of tariff, it was replied in Ex.P.24 that letter is issued to the complainant to pay the requisite fee and produce the documents. So, Ex.P.23 and Ex.P.24 makes it clear that in respect of the application filed for change of tariff from LT-2 connection into LT-3 connection, accused has got nothing to be performed. The duty of the accused is to dig the pits to lay the electricity poles, cut the branches of the tree and drawing the electricity wire lines and except that the accused has got no official duty to performed. In respect of the application filed for change of tariff, accused has got absolutely nothing to be performed or done. Under such circumstances, it is not made known to this as to why the complainant approached the accused in respect of application for change of tariff. 24 Spl. C.C. No.139/2009
32. When the accused has got no official duty to be performed in respect of the application filed for change of tariff, contention of the prosecution that, there was demand and acceptance of the bribe amount by the accused in respect of that application cannot be accepted by this court.
33. In the complaint, complainant has specifically alleged that, the accused has demanded the bribe amount of Rs.8,000/- in respect of the application filed for change of tariff. Neither in the complaint nor during the course of evidence of complainant, there is any explanation as to the actual duty to be performed by the accused in respect of the application filed for change of tariff. Even the Investigating Officer, who was examined before this court as PW.4, has not deposed regarding any official act or duty to be performed by the accused in respect of the application filed for change of tariff. The Investigating Officer/PW.4, in page 7 of his cross-examination, has deposed that, allegation in the complaint is about the application moved for conversion of residential electrical connection into commercial connection, which is technically called as conversion from LT-2 to LT-3 connection. The Investigating Officer has also admitted that it is the Assistant Executive Engineer, who is authorized to make 25 Spl. C.C. No.139/2009 the conversion from LT-2 to LT-3 connection. PW.4 also admitted that during the course of investigation, he received a letter as per Ex.P.24 about the actual duty of the accused and as per which, he is not authorized to do any work relating to the conversion of LT-2 connection into LT-3 connection. The Investigating Officer also admitted that, as a probationary gang-man, accused was authorized to do only the mason work and not any technical work relating to the department. The Investigating Officer further said that after receiving Ex.P.24 letter, he has not further enquired CW.1 and not recorded his further statement. In-fact, after receiving the Ex.P.24 letter, which stated that the accused has got no duty to be performed in respect of the application given for change of tariff, Investigating Officer would have made further enquiry with the complainant as to why the accused has demanded the bribe amount from him, when he has no work, act or duty to be performed in respect of their application filed for change of tariff. To perform which act by the accused, there was demand of bribe amount by the accused, was not explained either in the complaint or during the course of evidence of complainant and the Investigating Officer. Under such circumstances, I have to say that the prosecution has failed to prove one of the essential requirement to constitute the offence under Sec.7 of the Prevention of Corruption Act 26 Spl. C.C. No.139/2009 i.e., pendecy of the official act before the accused or the accused having the duty or obligation to do some official act in favour of the complainant.
34. Regarding official act pending before the accused as one of the essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
35. The Hon'ble High Court of Karnataka has reiterated the same view in recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
27 Spl. C.C. No.139/2009
36. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, theory of the prosecution in the case on hand cannot be accepted, since no official work is to be done by the accused, relating to the complainant. It is not the case of the complainant or prosecution that accused demanded the bribe amount for doing that work through the Assistant Executive Engineer, who is empowered to pass an order for conversion of tarrif. When there are no such allegations in the complainant and no evidence in this regard, this court can not presume that accused has demanded the bribe amount to do that work through the Assistant Executive Engineer. According to me, on this score alone, prosecution case must fail. Even if the prosecution proves the demand and acceptance of the bribe amount, when the official act is not pending before the accused, said demand and acceptance of bribe amount cannot be considered as an illegal gratification.
28 Spl. C.C. No.139/2009
37. The next important question, which requires to be considered by this court is regarding alleged demand of bribe amount. It is well established principle of law laid down by the Hon'ble Supreme Court and the Hon'ble High Court of Karnataka in the Catena of decisions that demand of illegal gratification by the public servant is the essential requirement to constitute the offence under Sec. 7 of the Prevention of Corruption Act. In this particular case, as per the prosecution theory, there was demand of bribe amount by the accused on two stages. The first stage is before lodging the complaint, when the complainant approached the accused to get the order for change of tariff. According to the prosecution case, second stage when the accused demanded the bribe amount is at the time of trap, when the complainant met the accused. If the prosecution able to establish the demand of bribe by the accused in any one of these two stages, they can succeed in bringing home the guilt of the accused.
38. So far as the first stage when the demand of bribe amount is made, to prove the same, prosecution relied upon the complaint allegations and evidence of the complainant. Apart from these two, the prosecution also relied upon the recordings made in the mobile phone by the complainant, when he met the accused to get the change of tariff. It is on the basis of these, prosecution tried to prove the 29 Spl. C.C. No.139/2009 demand of bribe amount by the accused before lodging the complaint. The complainant examined before this court as PW.1 and complaint lodged by the complainant is marked as per Ex.P.2. Of-course, in the complaint, complainant has specifically alleged that he approached the accused for getting change of tariff in respect of the electricity connection given to one Mamatha and the accused has demanded the bribe amount of Rs.8,000/- from him. The complainant, during the course of his evidence as PW.1, has also deposed in support of the complaint allegations and said that the accused has demanded Rs.8,000/- as bribe amount from him for making the change of tariff.
39. One more evidence, which the prosecution relied upon to prove the alleged demand of bribe amount, before lodging the complaint, is the recordings made in the mobile phone of the complainant. The complainant has produced the CD, which contain the recording made in his mobile phone, along with the complaint, before the Lokayuktha Police. As per the evidence of Investigating Officer, who was examined as PW.4, said CD was displayed in the presence of CW.2 and 3 and its transcription were made as per Ex.P.18 and thereafter recordings in the CD was displayed before CW.4/PW.6 to get the identification of the voice of the accused and produced the said CD 30 Spl. C.C. No.139/2009 before this court as per MO.10. The Investigating Officer has not produced the mobile phone in which the alleged recordings were made. The documents produced before this court in the form of CD and in the form of transcription of the recordings are only the secondary evidence. The primary evidence is the mobile phone, in which recordings were made and same has not been produced before this court.
40. Regarding the appreciation of electronic evidence, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65B of the Indian Evidence Act, said secondary evidence is not admissible in evidence. Now, it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under 31 Spl. C.C. No.139/2009 Sec. 65B of the Indian Evidence Act in respect of genuineness of the said secondary evidence.
41. In case on hand, though the prosecution has produced the secondary evidence of electronic records like recordings made in the mobile phone in the form of a CD, same is not accompanied by any certificate under Sec. 65B of the Indian Evidence Act. According to me, in view of the above referred Three Judges Bench decision of Hon'ble Supreme Court, whatever the electronic evidence produced by the prosecution cannot be accepted by this court.
42. The Investigating Officer has also not made any attempt to obtain the specimen voice of the accused, so as to compare the same with the voice recorded in the mobile phone and now found in the CD. No reasons are forth coming from the investigating officer for not subjecting the recordings in the CD for the expert examination by comparing the same with the specimen voice of the accused. On this score also, I have to say that the secondary evidence of the electronic records produced by the prosecution cannot be accepted by this court.
43. When the recordings made in the CD can not be accepted by this court, other evidence available for the prosecution to prove the alleged demand of bribe before lodging the complaint, is only the 32 Spl. C.C. No.139/2009 complainant allegations and evidence of complainant. Now the question before this court is as to whether this court can accept the complaint allegations and the evidence of the complainant in proof of alleged demand of bribe by the accused before lodging the complaint. The evidence of the complainant and the complaint allegations are to be appreciated by keeping in mind two more factors in mind. The complainant/PW.1, in page 5 of his cross-examination, has specifically admitted that, including this complaint, he has given all together seven complaints with the Lokayuktha Police, in the cases of this nature. So, this complaint is not the only complaint which was lodged by the complainant. Rather, he has lodged all together seven complaints against the different public officials with an allegation that they demanded the bribe amount. Now the fact that complainant filed the complaint of this nature in many cases is like a doubled edged sword to the prosecution. It may help the prosecution, if it is shown before the court that complainant is a diligent citizen, who oppose the corruption in the society and corrupt practice by the public servant. At the same time, this factor may go against the prosecution, if it is shown that complainant is in the nature of filing false complaint against the public servants, with an intention to blackmail them. So, 33 Spl. C.C. No.139/2009 this court has to consider the evidence of PW.1 from both these angles.
44. One more factor, which needs to be considered by this court, while appreciating the evidence of the complainant is that, the complaint lodged by him regarding the demand of alleged bribe amount is not in respect of personal work of the complainant. As set out by the prosecution, it is one Mamatha, who has filed an application before BESCOM for change of tariff. The prosecution alleged that, in respect of the application filed by Mamatha, there was demand of bribe amount by the accused. Therefore, it is the complainant, who has lodged the complaint before Lokayuktha Police. In order to create nexus between him and the application filed by Mamatha, complainant claims that he is a licensed electrical contractor and Mamatha is his client and she has given an authorization letter to him to attend the said work at BESCOM and accordingly when he approached the accused in respect of the application filed by Mamatha, there was demand of bribe.
45. The complainant filing series of complaints against the public servants, including the accused, coupled with the personal work of the complainant being not involved in this complaint, would creates some 34 Spl. C.C. No.139/2009 doubt in the mind of this court regarding genuineness of the complaint lodged by the complainant. Since the application for change of tariff is filed by Mamatha, she would have lodged the complaint, rather than the complainant lodging the complaint. At-least, said Mamatha would have been made as a witness in the charge sheet. But, for the reasons best known to the investigating agency, no attempt was made by them to make the said Mamatha as a witness in this case, though the application as per Ex.P.13 was filed by said Mamatha claiming the change of tariff in respect of the electrical connection provided to her house.
46. As I said earlier, in order to create nexus between him and the application filed by Mamatha for change of tariff, complainant has produced an authorization letter given by said Mamatha to him to attend the said work. Said authorization letter was produced before the Investigating Officer, along with the complaint and same is marked as per Ex.P.1. Apart from Ex.P.1, absolutely there is no evidence to connect the complainant with the application given by Mamatha for change of tariff. Though the complainant claims that he is a licensed electrical contractor, no documents were produced to prove the same, either while lodging the complaint or during the course of investigation. Even during the course of evidence before this court, no 35 Spl. C.C. No.139/2009 documents were produced to show that the complainant is a licensed electrical contractor. Since the complaint lodged by him was as a licensed electrical contractor and he said that he appeared before the accused as a licensed electrical contractor, said license would have been produced to prima facie show his nexus with the application filed by Mamatha for change of tariff.
47. Now, it is relevant to refer some of the statement given by CW.9, who was examined as PW.5, during the course of his cross- examination. CW.4/PW.6 was the Assistant Engineer in the office of BESCOM, where the accused was working and when the trap was laid. In page 2 of his cross-examination, PW.6 specifically said that as per Ex.P.13, one Mamatha has filed an application for change of tariff before the Assistant Executive Engineer. PW.6 further deposed that contractor must obtain U form from his party to appear before their office, on behalf of that party. PW.6 further deposed that if any application is filed for change of tariff through the licensed electrical contractor, his seal and signature has to be put on the application. There is no seal and signature of the complainant on Ex.P.13. So, though the complainant claims that he is a licensed electrical contractor, application for change of tariff was filed by the consumer Mamatha directly and that application was not filed through this 36 Spl. C.C. No.139/2009 complainant, who claims to be the licensed electrical contractor. If any such application has to be filed through the licensed electrical contractor, it should be accompanied by U form, along with the agreement between the consumer and the contractor. Neither the U form nor the agreement has been produced before the court or before the BESCOM. This would create again some doubt in the mind of this court regarding nexus between the complainant and the application filed by Mamatha for change of tariff.
48. It is pertinent to note here that as per Ex.P.13, application for change of tariff was filed by Mamatha long back on 24-01-2008, whereas the authorization letter produced before this court and marked as per Ex.P.1 was given on 24-01-2009. So, almost one year after the application filed by Mamatha for change of tariff, she has given the authorization letter to the complainant. Now, it is relevant to refer the evidence of complainant, who was examined as PW.1. In his examination in chief, PW.1 said that, one Mamatha was his consumer during the year 2009 and she has asked him to attend the work relating to the change of electric connection from domestic use to commercial use. PW.1 further said that he has given authorization letter to him as per Ex.P.1 and thereafter he gave application to the Sub-Division office. So, oral evidence of PW.1 is quite contrary to the 37 Spl. C.C. No.139/2009 documentary evidence. According to PW.1, after the authorization letter, he filed an application before BESCOM to get the change of tariff, whereas the application as per Ex.P.13 was given by one Mamatha on 24-01-2008 in her individual capacity, whereas the authorization letter was given on 24-01-2009. If the authorization letter was given to complainant, application for change of tariff would have been filed by the complainant himself on behalf of Mamatha on the strength of said authorization letter. The complainant also would have produced the U form and agreement between him and the consumer for filing the application. Even no signature of the complainant and his seal is found on Ex.P.13 application. All these factors would again create some doubt in the mind of this court regarding genuineness of the complaint filed by the complainant. This would also come in the way of this court in accepting the evidence of complainant and also the complaint allegations regarding demand of bribe amount made by the accused before lodging the complaint. As I said earlier, except the complaint allegations and the evidence of complainant, absolutely there is no evidence to prove the alleged demand of bribe amount.
49. Now, following three factors are to be carefully considered by this court. Firstly, complainant filing the complaint of this nature in 38 Spl. C.C. No.139/2009 seven other cases, including the complaint against this accused. Secondly, complaint being filed by the complainant not in respect of any of his personal or individual works. Thirdly, accused has got no duty to be performed in respect of the application filed for change of tariff by Mamatha. If these three factors are considered together, it would create huge doubt in the mind of this court regarding genuineness of the complaint.
50. As discussed by me earlier, prosecution failed to prove the accused having any official act or duty to be performed in respect of the application filed for change of tariff by the applicant Mamatha. It is not explained by the complainant in the complaint or during the course of evidence as to in respect of which act to be performed by the accused, he demanded the bribe amount. These factors, coupled with the above three factors discussed by me, come in the way of this court in accepting the sole testimony of the complainant, regarding the demand of bribe amount made by the accused before lodging the complaint.
51. Regarding the demand of bribe amount at the second stage i.e. just before the trap, prosecution relied upon the evidence of complainant and shadow witness. Of-course, complainant during the 39 Spl. C.C. No.139/2009 course of his evidence before this court as PW.1, deposed that when he and CW.2 were waiting near the bakery, accused came there and demanded Rs.8,000/- from him and accordingly he handed over the tainted currency notes to the accused.
52. The shadow witness, who was examined as PW.2, during the course of his cross-examination, deposed that when he and CW.1 were waiting near the bakery, accused came there and CW.1 spoke to the accused for a little time and placed a form and handed over the tainted currency notes to the accused. In his examination in chief, PW.2 specifically said in page 2 that, he could not hear the conversation between the accused and PW.1, since he was not very close to them. So, shadow witness never said that after arriving to the place of trap, there was demand of bribe amount made by the accused. Rather shadow witness said that he could not hear the conversation between the accused and CW.1.
53. When prosecution realized that the shadow witness has not supported its case in respect of very important question relating to the demand, it has treated the shadow witness/PW.2 as a hostile witness and cross examined him. During the course of cross-examination of PW.2, when it was suggested to him that accused demanded the bribe 40 Spl. C.C. No.139/2009 amount of Rs.8,000/- from CW.1, shadow witness has categorically denied that suggestion. PW.2 has also denied the suggestion about he giving the statement before the Investigating Officer as per Ex.P.14 in demanding the bribe amount. So, regarding demand of bribe made at the time of trap, shadow witness has not supported the prosecution case. Therefore, only evidence available before this court regarding alleged demand is the evidence of complainant. Again, all those factors discussed by me come in the way of this court in accepting the sole testimony of the complainant regarding demand of bribe amount made by the accused at time of trap.
54. Even as per the decision of Hon'ble Supreme Court and Hon'ble High Court of Karnataka, sole testimony of the complainant cannot be accepted in proof of demand and acceptance of the bribe amount, when it is not corroborated with any other evidence, because the complainant is in the nature of accomplice in the cases like this and he is also a interested witness. In this regard, it is necessary to refer a decision of Hon'ble Supreme Court reported in (2011) 2 Supreme Court Cases (Cri) 1010 ((2011) 6 Supreme Court Cases 450) (State of Kerala and another V/s C.P.Rao). While discussing the question of standard of proof and corroboration in trap cases registered for taking bribe against a public servant for the 41 Spl. C.C. No.139/2009 offences punishable under Sec.7, 13(2) and 13(1)(d) of the Prevention of Corruption Act 1988, it was held by the Hon'ble Supreme Court that, "when there is no corroboration for the testimony of the complainant regarding demand of bribe by the accused, it has to be accepted that complainant version is not corroborated and therefore, evidence of the complainant cannot be relied upon".
55. Another decision, which can be relied upon on this point is the decision of Hon'ble Supreme Court reported in 1981 Supreme Court Cases (Crl) 586 (Gulam Mahmood A. Malek V/s State of Gujarat) wherein it was held that "in a trap cases, complainant himself is in the nature of accomplice and his story is prima facie suspect, for which, corroboration in materials particulars is necessary".
56. Another decision, which was relied upon by the accused on this point is the decision of Hon'ble High Court of Karnataka reported in 2006 (3) KCCR 1445 (State of Karntaka V/s K.T.Hanumanthaiah) wherein it was held that "there should be independent corroboration for proving the case of demand and 42 Spl. C.C. No.139/2009 acceptance of bribe for the offences under Sec. 7 and 13(1)(d) R/w 13(2) of the Prevention of Corruption Act".
57. One more decision relied upon by the accused on this point is the recent decision of Hon'ble High Court of Karnataka reported in 2016(1) KCCR 815 (R. Srinivasan and Another V/s State by Police Inspector, Lokayuktha, Bengaluru). It was held in the above decision that "in a trap cases the complainant will normally be an interested person in the sense he would be interested in getting the accused trapped since the accused is stated to have not acted legally, according to him. Hence the evidence of the complainant needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance.
58. In this particular case, regarding demand of bribe amount on both the stages, there is only the evidence of complainant and absolutely there is no corroboration for his evidence, as the shadow witness has not supported the prosecution case regarding the demand. I have already discussed the several factors, which come in the way of this court in accepting the sole testimony of the complainant without there being any corroboration for the same. Under such 43 Spl. C.C. No.139/2009 circumstances, I hold that the evidence of the complainant is unreliable regarding demand of bribe amount, because it remained uncorroborated and surrounded with some grave suspicious circumstances. Therefore, I am unable to accept the same. Hence I hold that the prosecution has failed to prove the demand of bribe amount made by the accused.
59. Apart from the above reason, another circumstance, which comes in the way of this court in accepting the prosecution theory regarding the demand of illegal gratification, is accused not having any act to be done or performed in respect of the application filed for change of tariff. I have already discussed that the accused has got nothing to do in respect of the application filed by one Mamatha for change of tariff, being probationary gangman. When the accused has got nothing to do, it is not explained before this court as to perform which act the alleged demand of illegal gratification is made. This is also one of the reasons for this court to doubt the case of prosecution and the evidence of the complainant.
60. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) 44 Spl. C.C. No.139/2009 Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
61. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
62. Now, let me consider the next important question regarding the acceptance of the bribe amount. Regarding acceptance of the bribe amount, prosecution relied upon the evidence of the complainant, shadow witness and also the positive phenolphthalein test report. Apart from that, to corroborate all these, prosecution relied upon the evidence of the panch witness and also the evidence of the Investigating Officer. Of-course the evidence of the complainant shows that the accused has received the bribe amount of Rs.8,000/- from him. Even the shadow witness has deposed before the court that the 45 Spl. C.C. No.139/2009 complainant has handed over the tainted currency notes to the accused. The Investigating Officer and pancha witness, who were examined before this court as PW.3 and 4 respectively, deposed before this court that, after their arrival the tainted currency notes were found with the accused and same was recovered and seized. To corroborate all these, there is positive phenolphthalein test, as when the right hand of the accused was washed in the sodium carbonate solution, same turned into pink colour. Now the question before this court is as to whether the finding of tainted currency notes with the accused and the positive phenolphthalein test can be the basis for holding that the accused has accepted the tainted currency notes as an illegal gratification.
63. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena W/o Balwant Hemke V/s State of Maharastra). It was held by the Hon'ble Supreme Court in the above decision that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the accused, in the absence of evidence to prove that same was demanded by the accused and it was voluntarily accepted. 46 Spl. C.C. No.139/2009
64. One more decision, which can be considered on this point the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka). It was held in the said decision that mere possession and recovery of the tainted currency notes from the accused, without the proof of demand, would not attract offences under Sec. 13(1)(d) of the Prevention of Corruption Act 1988.
65. It is also necessary to refer the decision of Hon'ble Supreme Court reported in 2015 SCC Online SC 814 (2015 AIR SCW 526) (P. Sathyanarayana Murthy V/s District Inspector of Police and another). It was held in the above decision that, mere possession and recovery of currency notes from accused without proof of demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
66. Same view expressed by the Hon'ble High Court of Karnataka in a decision reported in 2012(1) KCCR 414 (R. Malini 47 Spl. C.C. No.139/2009 V/s State of Karnataka), wherein it was held that, mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused, in the absence of any demand and acceptance of the amount as an illegal gratification. Mere acceptance of money by the accused will not be sufficient to fasten the guilt. It was further held in the above decision that, it is not the passing of money alone which establishes a Corruption charge, because the grave-men of the offence lies in the fact that much was paid for a corrupt purpose and it is that aspect which is paramount.
67. By keeping in mind the ratio laid down in the above decisions I have to consider as to whether mere possession of the tainted currency notes and positive phenolphthalein test report in the case on hand can only the basis for holding that the accused has received the tainted currency notes as an illegal gratification. Though complainant, shadow witness, panch witness and the Investigating Officer have deposed before this court that CW.1 has handed over the tainted currency notes to the accused and they found the accused possessing the tainted currency notes and positive phenolphthalein test report of the right hand wash of the accused, still their evidence is not 48 Spl. C.C. No.139/2009 consistent and convincing regarding the acceptance of the tainted currency notes by the accused. CW.1/PW.1 said that after receiving the tainted currency notes from his right hand, accused kept the same in his left shirt pocket, whereas the shadow witness, who was examined as PW.2, said that tainted currency notes were in the right hand of the accused when the Lokayuktha Police came to the spot to trap him. So, there is inconsistent statement by the CW.1 and 2 regarding the place where actually the tainted currency notes were found.
68. CW.3/PW.3, who is a panch witness, has arrived to the spot after getting the signal from CW.1. In his evidence said that accused took out the cash from one of his pant pocket. So, one more version was given by PW.3 regarding actual place where the tainted currency notes were found. The Investigating Officer, who was examined as PW.4, deposed that accused was holding the tainted currency notes, when they reached to the spot, after receiving the signal. So, there are four different versions of four witnesses, who were present at the time of trap as to the actual place where the tainted currency notes were found with the accused.
49 Spl. C.C. No.139/2009
69. Even though as per the trap mahazar and evidence of PW.1 to 3, trap was laid in front of bakery, near the office of the accused, in his entire evidence, Investigating Officer has not whispered anything regarding they going near the bakery and trapping the accused near bakery. Because of these reasons, oral testimony of PW.1 to 4 do not inspire confidence so as to place the reliance on it.
70. Even for the sake of arguments, it is accepted that the accused has received the tainted currency notes and he was found in possession of the tainted currency notes at the place of trap, still there are other reasons to say that it was not demanded by the accused and accepted by him in order to render any official favour to the complainant. As I said earlier, prosecution has failed to show any official act pending before the accused in respect of the application filed for change of tariff. The prosecution has also failed to prove the alleged demand of bribe amount made by the accused. When the prosecution has failed to prove these essential requirements, then the mere finding of the currency notes with the accused cannot be said as an illegal gratification received by the accused.
71. The learned Public Prosecutor put forward an alternative arguments before this court that, even if the prosecution evidence is 50 Spl. C.C. No.139/2009 not accepted regarding official act of the accused to be performed in favour of the complainant and demand of illegal gratification by the accused, still there is evidence to show that accused was found in possession of the tainted currency notes, when he was trapped. According to the learned Public Prosecutor, even if Sec. 7 of the Prevention of Corruption Act is not attracted, accused can be convicted for the offence punishable under Sec. 13(1)(d) of the Prevention of Corruption Act, since Sec. 13(1)(d)of the Prevention of Corruption Act, do not mandates the requirement of the official act and demand by the public servant to constitute the offence. According to the learned Public Prosecutor, public servant possessing the illegal gratification itself is sufficient to hold that he has committed the offences punishable under Sec. 13 (1)(d) of the Prevention of Corruption Act.
72. In support of this arguments, learned Public Prosecutor has relied upon a decision of Hon'ble Supreme Court reported in 2002 (2) Crimes 267 (SC) (Subash Parbat Sonvane V/s State of Gujarat). In that particular case, Hon'ble Supreme Court has laid down the law relating to the distinction between the words 'accepts' and 'obtains' incorporated under Sec.7,11,13(1)(a)(1)(b) and 13(1) (d) of the Prevention of Corruption Act. As per the ratio laid down by the Hon'ble 51 Spl. C.C. No.139/2009 Supreme Court, for convicting the person under Sec.13(1)(d) of the Prevention of Corruption Act, there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant. It is true that word 'demand' or 'official act' or 'official favour' has not been used under Sec.13 (1)(d) of the Prevention of Corruption Act. On that score, a public servant cannot be convicted merely on the ground that he was found in possession of the tainted currency notes. There should be evidence before the court that the accused has accepted the tainted currency notes by abusing his position as a public servant. In the case on hand, accused has got absolutely no act to be done in respect of the application filed for change of tariff. Therefore, one cannot say that he has abused his official position for receiving the illegal gratification. Hence, I am unable to accept the arguments of the learned Public Prosecutor to convict the accused even for the offences punishable under Sec.13(1)(d) of the Prevention of Corruption Act, 1988.
73. To sum-up my discussion, prosecution has failed to prove that the official act is pending before the accused in respect of the complainant. The evidence on record goes to show that, being the mazdur gangment working in BESCOM, accused has got nothing to 52 Spl. C.C. No.139/2009 perform in respect of the application filed for change of tariff. The prosecution has failed to prove the demand of bribe amount by the accused, which is an essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. The prosecution has failed to discharge the initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative.
POINT No.4:
74. In view of my findings on the above points, accused deserves to be acquitted. Accordingly, I proceed to pass the following order:
53 Spl. C.C. No.139/2009
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and his surety stands cancelled.
MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period.
MO.2 to 10 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.
MO.11 is ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 23rd day of December 2016) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() 54 Spl. C.C. No.139/2009 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Jagadish PW.2: K. Prakash PW.3: B.C.Jagannatha PW.4: Irshad Ahmed Khan PW.5: A.N.Murthy PW.6: K.S.Vishwanath LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Authorization letter (Dt:24-02-2009) Ex.P.2: Complaint Ex.P.2(a): Signature of PW.1 Ex.P.3: Currency details sheet Ex.P.3(a): Signature of PW.1 Ex.P.3(b): Signatures of PW.3 Ex.P.4 to 7: Four photos Ex.P.8: Pre trap mahazar Ex.P.8(a): Signature of PW.1 Ex.P.8(b to e): Signatures of PW.2 Ex.P.8(f to i): Signatures of PW.3 Ex.P.8(j): Signature of PW.4 Ex.P.9: Trap mahazar Ex.P.9(a): Signature of PW.1 Ex.P.9(b) to (g): Signatures of PW.2 Ex.P.9(h to m): Signatures of PW.3 Ex.P.9(n): Signature of PW.4 55 Spl. C.C. No.139/2009 Ex.P.10 & 11: Two photos(near bakery) Ex.P.12: One photo (trap) Ex.P.13: Attested copy of letter (Tariff) Ex.P.27 Ex.P.14: Portion of the statement of PW.2 Ex.P.15: Explanation of the accused Ex.P.15(a): Signature of PW.2 Ex.P.15(b): Signature of PW.3 Ex.P.15(c): Signature of PW.4 Ex.P.16: Currency detail sheet Ex.P.16(a) & (b): Signatures of PW.3 and 4 Ex.P.17: FIR in Cr.No.11/2009 Ex.P.17(a & b): Signatures of PW.4 Ex.P.18: Telephone conversation version sheet Ex.P.19: Attested copy of electricity bill Ex.P.28 Ex.P.20: Copy of Agreement Ex.P.29 Ex.P.21: Copy of attendance register Ex.P.22: Chemical examination report Ex.P.23: Service particulars of the accused Ex.P.24: Work assignment letter Ex.P.25: Sketch Ex.P.26: sanction order dated:26-06-2009 Ex.P.26(a): Signature of PW.5 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: 'E' metal seal MO.2: Sample solution bottle (pre trap) MO.3: Hand wash solution of PW.3 MO.4: Sample solution bottle (Trap) 56 Spl. C.C. No.139/2009 MO.5: Right hand wash solution bottle MO.6: One more solution of right hand wash MO.7: Left hand wash solution bottle MO.8: One more solution of left hand wash MO.9: Cover MO.10: CD MO.11: Cash LIST OF WITNESSES EXAMINED FOR ACCUSED:
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LIST OF DOCUMENTS MARKED FOR ACCUSED:
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(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) (Judgment pronounced in the open Court vide separate judgment) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from 57 Spl. C.C. No.139/2009 the charges leveled against him for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The bail bond executed by the accused and his surety stands cancelled. MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period. MO.2 to 10 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.11 is ordered to be confiscated to the State Government after expiry of appeal period. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)