Bangalore District Court
The State By Police Inspector vs M.Narayanaswamy on 2 April, 2018
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 2nd day of April 2018
Spl. C.C.No.146/2011
COMPLAINANT The State by Police Inspector,
Police wing, City Division,
Karnataka Lokayuktha,
Bangalore.
(Rep by Spl.Public Prosecutor)
-Vs-
ACCUSED M.Narayanaswamy, s/o late
Muniswamaiah,
Junior Health Inspector,
BBMP Office, K.R.Puram,
Bengaluru City, r/at # 5, 5th
cross, M.V.Extension,
Hosakote, Bengaluru Rural
District.
(By Smt.Prapulla K.-Advocate )
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
02.05.2011
of offence
2 Spl.C.C.146/2011.C.C.146/2011
3. Date of First
Information Report 02.05.2011
4. Date of arrest
02.05.2011
5. Date of
commencement of 20.10.2016
recording of
evidence
6. Date of 19.02.2018
closing of evidence
7. Date of
02.04.2018
pronouncement of
Judgment
8. Result of the case The accused is acquitted
under section 235(1) of
Cr.P.C. of the offence
punishable under section 7,
13(1) (d) r/w 13(2) of
Prevention of Corruption Act,
1988.
3 Spl.C.C.146/2011.C.C.146/2011
JUDGMENT
The accused is charge sheeted for the offence punishable under Sections 7, 13(1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988.
2. The prosecution case is that, CW1-Praveen, met the accused in BBMP office, K.R.Puram, for several times prior to 29.4.2011, in connection with renewal of trade license in respect of "Syninn Byke Service Station" run by CW4-Mohan Raj. The accused demanded illegal gratification of Rs.1000/-. After negotiation, the bribe amount was reduced to Rs.500/-. Since the complainant was not willing to pay the bribe amount, on 29.4.2011, he approached CW20-Niranjankumar C., Police Inspector, City Division, Karnataka Lokayuktha, Bangalore and informed the matter, who in turn gave Voice Recorder to record the conversation. On the same day, the complainant met the accused and spoke to him about the work. The accused has insisted to pay illegal gratification of Rs.500/-. The complainant recorded the conversation. On 2.5.2011, at about 12.00 noon, complainant presented written information as per Ex.P1 before CW20, who arranged for the trap. The complainant produced the Voice Recorder along with the complaint.
3. On 2.5.2011, CW2-Eshwarappa & CW3-Bramachari, the employees of Panchayat Raj, Engineering Circle, Bangalore were secured to act as witnesses to the trap. The complainant 4 Spl.C.C.146/2011.C.C.146/2011 produced Rs.500/-(5 currency notes denomination of Rs.100/-). The serial number of the currency notes was recorded as per Ex.P3. The currency notes were smeared with phenolphthalein powder. CW3-Bramachari after verifying & counting the tainted currency notes, placed it in the left side shirt pocket of the complainant. Both the hand fingers of CW-3 were washed in sodium carbonate solution. The solution becomes pink colour. The Voice Recorder produced by the complainant along with the complaint was played in the presence of the witnesses & the contents of it were converted to CD and transcript into writing as per Ex.P-4. The complainant was instructed to go to the accused, speak with him about the work, and to give the money only on demand. He was further instructed to give signal by removing the spectacles if the accused received the money. The Complainant was provided with Digital Voice Recorder & Button Camera with an instruction to record the conversation/scene. CW2-Eshwarappa(shadow witness) was instructed to follow the complainant and to observe what transpires between the complainant & accused. Entrustment Mahazar as per Ex.P5 was prepared and obtained the signature of the witnesses. The entire pre-trap-proceedings were covered by video, contents of it were converted to CD.
4. On 2.5.2011, at about 2.00 PM, CW20 along with his Trap Team Members, complainant, two panch witnesses left for BBMP office, K.R.Puram, in a Government vehicle. On the way to 5 Spl.C.C.146/2011.C.C.146/2011 K.R.Puram, the complainant called the accused through his mobile phone. He was told by the accused to come to Mahadevapura BBMP office. As told by the accused, all the Trap Team Members, complainant & panch witnesses went to BBMP office, Mahadevapura and then to Shell Petrol Bunk situated on Mahadevapura & K.R.Puram main road. The complainant proceeded towards Shell Petrol Bunk. CW2 has followed the complainant. The remaining Trap Team Members were following the complainant from some distance. The accused was standing with his motor bike nearby BBMP Board in front of Anjaneyaswamy Temple. The complainant went nearby the accused and spoke with him. Thereafter, the complainant gave pre-instructed signal by removing his spectacles. Immediately, the Trap Team Members had rushed to the spot and apprehended the accused. CW20 disclosed his identity and informed the purpose of visit. Both the hand fingers of the accused were washed separately in the sodium carbonate solution. The said solution becomes pink colour. Thereafter, the tainted currency notes of Rs.500/-(MO1) was recovered from the hip pocket of the accused. The tainted currency notes were got tallied with the currency notes sheet. The pant of the accused was seized by making an alternate arrangement. Rough sketch showing the scene of offence was prepared. Some of the documents relating to the complainant were seized from the motor bike of the accused. Thereafter, the accused was brought to Lokayuktha Police Station for conducting further proceedings.
6 Spl.C.C.146/2011.C.C.146/2011 The Digital Voice Recorder and Button Camera given to the complainant at the time of the trap was played in the presence of the witnesses, CW5-Dr.Nayanatara Patil, Health Officer, Yelahanka & CW7-Bhargav-Senior Health Officer, Mahadevapura Division, BBMP and contents of it were converted to CD and transcript into writing. CW5 & CW7 have identified the accused & his voice and submitted the Report in this regard. The conversation between the complainant & accused recorded in the mobile phone was converted to CD and transcript into writing. The accused gave his statement in writing about he being in possession of the tainted currency notes. The entire trap proceedings were covered by video. The Attendance Register was secured from BBMP office, K.R.Puram. All the seized articles were sealed with Metal Seal by using Kannada letter " R ". Trap Mahazar was prepared as per Ex.P6. The documents relating to CW4-Mohan Raj & Report were obtained from the Health Officer, BBMP, K.R.Puram. The Investigating Officer received the Call Detail Records of mobile phone of the accused as per Ex.P21, B- Register extract & other documents relating to the two wheeler of the accused as per Ex.P22, Chemical Examination Report as per Ex.P23, and Spot Sketch as per Ex.P24. After completion of the investigation, Final Report was sent to the Competent Authority seeking sanction to prosecute the accused. After receiving the Sanction Order-Ex.P9 from the Competent Authority, the Investigating Officer has filed the charge sheet before the Court 7 Spl.C.C.146/2011.C.C.146/2011 against the accused for the offence punishable under punishable u/s 7, 13(1)(d) & 13(2) of Prevention of Corruption Act,1988.
6. My Predecessor-in-Office took cognizance of the offence and issued process against the accused. In pursuance of the summons, accused appeared before the Court. The accused is enlarged on bail.
7. After hearing, the charge was framed for the offence punishable under Sections 7, 13(1) (d) r/w13 (2) of the Prevention of Corruption Act, 1988. The Charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
8. During the trial, the prosecution has examined in all 4 witnesses as PWs-1 to 4 and got marked 24 documents as Ex.P1 to Ex.P24 and 15 Material Objects as MO1 to MO15. The accused was examined under section 313 of Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. The accused denied all the incriminating evidence available against him. The accused has not chosen to lead any defense evidence. I have heard the arguments and perused the records.
9. The learned counsel for the accused has placed reliance on the following decisions:
8 Spl.C.C.146/2011.C.C.146/2011
1. In the case of Anvar P.V -v- P.K.Basheer & others 2014(10) SCC 473; it was held that:
Electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence.
2. In the case of 1974 Supreme Court Cases (Cri) 73; Darshan Lal -v- The Delhi Administration, it was held that:
"In the absence of independent and reliable corroborative evidence in the trap case, accused should be given benefit of doubt.
3. In the case of 2006(3) KCCR 1445; State of Karnataka -v- K.T.Hanumanthaiah, it was held that:
"There should be independent corroboration for proving the case of demand and acceptance of bribe for the offence under Sections 7, 13 (1)(d) r/w 13(2) of Prevention of Corruption Act,1988.
4. In the case of (2016) I Supreme Court cases 713; N.Sunkanna -v- State of Andhra Pradesh, it was held that:
9 Spl.C.C.146/2011.C.C.146/2011 "It is only on proof of acceptance of illegal gratification, presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do an official act- unless there is proof of demand of illegal gratification, proof of acceptance will not follow."
5. In the case of (2011)2 Supreme Court cases (Cri) 1010; State of Kerala and another -v- C.P.Rao, it was held that:
"Mere recovery of tainted money divorced from circumstances under which it is paid is not sufficient to convict accused - when there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and therefore, evidence of complainant cannot be relied on."
6. In the case of 1981 Supreme Court Cases (Cri) 586; Gulam Mahmood A.Malek -v- State of Gujarat, it was held that:
"The complainant himself is in the nature of an accomplice and his story is prima facie suspect for which corroboration in material particulars is necessary."
7. In the case of 2012 (1) KCCR 414; R.Malini -v- State of karnataka, it was held that:
10 Spl.C.C.146/2011.C.C.146/2011 " When the certificate was kept ready much before lodging the complaint, the question of accused demanding bribe amount for doing any work does not arise as no work was pending as on the date of lodging the complaint."
8. In the case of 2014 AIR SCW 5740;
M.R.Purushotham -v- State of Karnataka, it was held that:
"Mere possession & recovery of the currency notes from the accused without proof of demand would not attract offence under Section 13(1)(d) of the P.C.Act"
9. In the case of (2009) 3 Supreme Court Cases 779; C.M.Girish Babu -v- CBI, Cochin, High Court of Kerala, it was held that:
"Mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing to be bribe."
10. In the case of 2016 (1) KCCR 815; R.Srinivasan and another -v- State by Police Inspector, Lokayuktha, Bangalore, it was held that:
"In the trap case, the complainant will normally be an interested person in the sense he would be interested in getting the accused trapped since accused is stated to
11 Spl.C.C.146/2011.C.C.146/2011 have not acted legally, according to him.
Hence, his evidence needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance.
10. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being a public servant, working as Junior Health Inspector, BBMP office, K.R.Puram, Bangalore, on 02.05.2011 demanded and accepted illegal gratification of Rs.500/-from the complainant-Praveen R. as a motive or reward for showing an official favour in the matter of renewal of trade license in respect of "Syninn Byke Service Station" run by CW4-
Mohan Raj and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused being a Junior Health Inspector, BBMP office, K.R.Puram, Bangalore, on 02.05.2011 by abusing his position as public servant and by corrupt or illegal means and without public interest obtained Rs.500/- from the complainant as a pecuniary advantage and thereby committed Criminal mis-conduct punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988?
3. What order?
12 Spl.C.C.146/2011.C.C.146/2011
11. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER
for the following:
REASONS
12. POINT No.1 AND 2: For the sake of convenience and to avoid repetition of facts, I have taken both the points together for consideration.
13. The prosecution has examined CW1-R.Praveen as PW1. PW1 is the complainant. PW1 has deposed that, during the end of March 2011, CW4-Mohan Raj & he met the accused in connection with renewal of trade license of "Syninn Byke Service Station". The accused told him to get DD for Rs.1300/- towards requisite fee and demanded some more money. CW4-Mohan Raj has taken DD for Rs.1300/- and handed it over to the accused. He also accompanied CW4 on that day. Accused asked them to come back after one week. CW4 has given him an authorization letter dated 5.4.2011 to get the renewal of license for the year 2011-12. Fifteen days thereafter, once again he went to BBMP office and met the accused. He was told by the accused that the renewal of license is ready, but he has to pay Rs.1500/- as bribe. On 29.4.2011, he approached Sri Niranjankumar- Lokayuktha Police Inspector, who in turn gave the Voice Recorder to record 13 Spl.C.C.146/2011.C.C.146/2011 the conversation. On the same day, he met the accused, spoke to him about the work. The accused demanded Rs.1000/- as bribe. After bargain, it was reduced to Rs.500/-. On 2.5.2011, he gave written information to the Lokayuktha Police. Along with the complaint, Digital Voice Recorder & authorization letter given by CW4 was produced. Lokayuktha Inspector, has secured two witnesses and conducted pre-trap proceedings. Voice Recorder produced by him along with the complaint was played during the pre-trap proceedings. He was instructed to go to the accused, speak with him about the work, to pay the money only on demand & to give signal by removing spectacles if the accused received the money. He was provided with Digital Voice Recorder & Button Camera to record the conversation/scene. CW2- Eshwarappa was instructed to follow him and to observe what transpires between the accused & himself. Entrustment Mahazar was prepared as per Ex.P5.
14. PW1 has further deposed that, Lokayuktha Police, CWs2 & 3 and he left for BBMP office, K.R.Puram. On the way to K.R.Puram, he called the accused through his mobile. He was told by the accused to come to BBMP office, Mahadevapura. After reaching the Mahadevapura BBMP office, he called the accused through his mobile phone. He was told by the accused to come nearby Shell Petrol Bunk situated at Mahadevapura main road. Accordingly, he went to Shell Petrol Bunk. CW2-Eshwarappa followed him. He spoke to the accused about the renewal of trade 14 Spl.C.C.146/2011.C.C.146/2011 license. The accused asked whether he brought the money. The accused further told him that he will have to pay money to other Officers. He gave the tainted currency notes to the accused, who in turn received and kept it in his left side shirt pocket. He gave the pre-instructed signal. Immediately Lokayuktha Police & another panch witness rushed to the spot and apprehended the accused. Lokayuktha Inspector has disclosed his identity and informed the purpose of his visit. The accused was scared of the Lokayuktha Police and tried to give the amount to the Lokayuktha Police by saying that he does not want money and requested to release him. Since the Lokayuktha Police did not receive the money, the accused kept it in his pant pocket. Both hand fingers of the accused were washed separately in sodium carbonate solution. The said solution turned to light pink colour. The tainted currency notes were recovered from the accused. Thereafter, the accused was brought to Lokayuktha Police Station, wherein the pant & shirt of the accused was seized and Digital Voice Recorder & Button Camera was played. Lokayuktha Police recorded his statement & statement of CW2. The accused gave his explanation in writing about he being in possession of money. The voice of the accused was identified through Commissioner, BBMP. The documents relating to the complainant were seized from the custody of the accused. Trap Mahazar was prepared as per Ex.P6.
15 Spl.C.C.146/2011.C.C.146/2011
15. During the course of cross-examination of PW1, it is elicited that, when he made a phone call, he was told by the accused to come nearby Shell Petrol Bunk. He crossed the road and went nearby the Shell Petrol Bunk where the accused was standing. CW2-Eshwarappa was standing opposite to Shell Petrol Bunk. The said road was busy road.
16. The prosecution has examined CW2-Eshwarappa as PW-2. PW2 is a shadow witness. PW-2 has deposed that, on 2.5.2011, he was called to Lokayuktha Police Station to act as witness in the trap. PW2 has deposed about conducting of Pre- trap proceedings, preparing of Entrustment Mahazar as per Ex.P5, playing of Voice Recorder produced by the complainant along with the complaint, converting the contents of the Voice Recorder to CD & transcript into writing. PW2 has further deposed that, at about 1.30 PM, they left for BBMP office, K.R.Puram. The accused was not present in the office. Thereafter, they left for BBMP office, Mahadevapura and then to Shell Petrol Bunk. PW1 proceeded towards the Petrol Bunk. He followed him. PW1 crossed the road. He did not cross the road as there was heavy vehicular traffic in the said road. He was not able to overhear the conversation between the accused & the complainant, nor see the complainant paying the money to the accused. He went to the spot along with the Lokayuktha Police after receiving the signal. Tainted currency notes were recovered from the accused. Thereafter, hand wash of the accused was 16 Spl.C.C.146/2011.C.C.146/2011 taken, which turned to pink colour. PW2 has further deposed about seizure of the documents from the BBMP office, Mahadevapura, seizure of the pant of the accused, obtaining written statement of the accused, drawing of Trap Mahazar, recording of his statement u/s 164 of Cr.P.C. by 17th ACMM Court.
17. PW-2 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P has cross-examined PW-2 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross-examination.
18. The prosecution has examined CW4-Mohan Raj K. as PW-3. PW-3 has deposed that, in the year 2011, somewhere in the month of April-May, he had been to BBMP office for getting renewal of trade license in respect of Byke service station and approached the accused. The accused demanded bribe amount of Rs.1500/-from him apart from license fee of Rs.700/-. Since he was not inclined to pay the bribe, he approached the Lokayuktha Police along with his friend-Praveen. He issued authorization letter as per Ex.P2 to his friend Praveen to file complaint before the Lokayuktha Police, since he was pre- occupied by his work. He was later told by Praveen that the accused was trapped by the Lokayuktha Police.
19. During the course of cross-examination of PW3, it is elicited that, he does not remember the date on which he 17 Spl.C.C.146/2011.C.C.146/2011 approached the Lokayuktha Police. During the previous year i.e. 2010-11, there was some heated conversation between the accused & him about getting renewal of trade license. It is further elicited that, on 31.3.2011, he had taken DD for Rs.1300/- for getting renewal of trade license, for which receipt was issued. The accused being a Junior Health Inspector, had no competency and empowered to issue trade license. It is further elicited that, he issued authorization letter as per Ex.P2 in favour of Praveen at the time of giving complaint to the Lokayuktha Police.
20. The prosecution has examined CW20- Niranjankumar C., Lokayuktha Police Inspector, as PW-4. PW-4 is the Investigating Officer. PW-4 has deposed about registering of FIR, drawing of Entrustment Mahazar, laying of trap, resultant hand wash of accused turning to pink colour, recovery of currency notes of Rs.500/-(MO1) from accused, converting the contents of Button Camera and Digital Voice Recorder into CD & transcript into writing, identification of voice of accused through CW5- Dr.Nayanatara Patil & CW7-Bharghav, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, obtaining of Attendance Register extract, receipt of Chemical Examination Report, receipt of Call Detail Records, receipt of B-Register Extract in respect of two wheeler vehicle bearing No.KA-53-J-6536, obtaining spot sketch 18 Spl.C.C.146/2011.C.C.146/2011 from AEE-PWD, receiving Sanction Order from the Competent Authority to prosecute the accused, etc.
21. During the course of cross-examination of PW-4, it is elicited that, complainant alone could go nearby the Shell Petrol Bunk where the accused was standing. CW2-Eshwarappa was standing on the other side of the road. It was busy road. After receiving the signal, he reached the place along with the staff and shadow witness. It is further elicited that during his investigation, he came to know that the trade license certificate was renewed on 31.03.2011 itself.
22. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
19 Spl.C.C.146/2011.C.C.146/2011
23. The evidence of PW1 with regard to alleged demand made by accused before filing the complaint and at the time of trap, is not supported by independent corroboration. The evidence of PW2(shadow witness) reveals that, when the complainant was going to meet the accused to give money, he was not able to cross the road because of heavy vehicular traffic. He was standing opposite to Shell Petrol Bunk on the other side of the road. He has not overheard the conversation between the complainant & the accused nor seen the complainant giving money to the accused. Then coming to the aspect of demand before filing the complaint, the evidence of PW1 & PW3 is contrary to each other with regard to quantum of bribe amount and the date when they met the accused. Absolutely there is no independent corroboration to prove the theory of demand and acceptance of bribe. It is well settled that mere recovery of tainted money and positive result of phenolphthalein test is not sufficient to prove the guilt of the accused unless there is corroboration of testimony of complainant regarding demand and acceptance of bribe by the accused.
24. In the present case, the official favour sought for is renewal of trade license. The evidence placed on record reveals that, the Zone Health Officer is the Competent Authority and empowered for issue of renewal of trade license. The accused being a Junior Health Inspector had no authority or competency in the matter of renewal of trade license. Since the accused had 20 Spl.C.C.146/2011.C.C.146/2011 no authority or competency in the matter of renewal of trade license, the question of demand of illegal gratification by the accused and acceptance of the same, is legally & factually does not arise.
25. In the present case, bait money is Rs.500/-. The amount involved in the trap is too small & meager. The Sanctioning Authority could have refused to accord sanction as it is one which can be adequately dealt with through disciplinary or departmental proceedings.
26. The Hon'ble High Court of Karnataka in the case of State by Police Inspector, Karnataka Lokayuktha, Bangalore, -v- M.Nanjunda; 2001 (3) KCCR 1905 held that:
"There are a class of misconducts which can be dealt adequately through disciplinary or departmental proceedings. Whether a particular case justifies prosecution or can be dealt with disciplinary proceedings, is an aspect the Sanctioning Authority is required to judicially consider before granting sanction".
But in the present case, the Sanctioning Authority has not judicially considered the aspect of involvement of bait money before according sanction.
27. From the evidence of PW1 it is clear that, he kept the tainted currency notes in the shirt pocket of the accused. But the 21 Spl.C.C.146/2011.C.C.146/2011 Chemical Examination Report-Ex.P23 reveals that the Lokayuktha Police have seized the pant of the accused and sent it to Forensic Science Laboratory for Chemical Examination. The shirt of the accused has not been seized. There is no proper explanation from the prosecution in this regard.
28. Then coming to the aspect of authorization letter- Ex.P2 said to have been given by PW3-Mohan Raj in favour of the complainant, it reveals that, since PW3-Mohan Raj was pre- occupied by his office work, he authorized his friend-Praveen to deal with issues related to renewal of trade certificate by BBMP and that Mr.Praveen will represent him in all transactions with BBMP officials till the trade license is renewed. But the evidence of PW3-Mohan Raj that he issued authorization letter in favour of his friend-Praveen to give complaint before the Lokayuktha is contrary to the contents of Ex.P2. Further, authorization letter- Ex.P2 bears the date 5.4.2011. But the evidence of PW3-Mohan Raj goes to show that he issued authorization letter in favour of Praveen at the time of giving complaint to the Lokayuktha Police Station. Admittedly, the complaint-Ex.P1 was given before the Lokayuktha Police on 2.5.2011. Further, the documents collected during investigation reveal that, the trade license certificate was ready on 31.03.2011. If really, Mohan Raj has issued authorization letter-Ex.P2 on 5.4.2011 itself, the complainant could have produced it before the BBMP authorities and collected the trade license certificate. All these circumstances makes it 22 Spl.C.C.146/2011.C.C.146/2011 clear that, the authorization letter-Ex.P2, is manipulated by putting an ante-date for the purpose of the case.
29. In the present case, MOs-6 & 12 are the CDs said to have contained the conversation, MOs-7 & 15 are the CDs containing the video-graph of Pre-Trap Mahazar & Trap Mahazar which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MOs-6 & 12 are not admissible in evidence.
30. The evidence on record reveals that, during the previous year, i.e. in the year 2010-11, there was some altercation between Mohan Raj & the accused about getting trade license, for non-production of rental agreement, encumbrance certificate, property tax and commercial confirmation letter from the owner of the building. Under the circumstances, the defence set up by the accused that, in order to falsely implicate the accused, CW1-Praveen & CW4-Mohan Raj hatched a plan and gave complaint before the Lokayuktha Police, is appears to be more probable & acceptable.
23 Spl.C.C.146/2011.C.C.146/2011
32. In the instant case, the prosecution has failed to discharge its burden to establish that the accused demanded illegal gratification and accepted the same after demand beyond reasonable doubt. The testimony of the prosecution witnesses raises considerable doubt in the prosecution version and two views of matter are possible and therefore the benefit of doubt must go to the accused. Hence, I hold that demand & acceptance of illegal gratification by the accused is not proved by the prosecution.
33. So far as the presumption raised u/s 20 of the Prevention of Corruption Act, 1988, it is settled that the presumption raised is a rebuttable presumption and that the burden placed on the accused, for rebutting the presumption is one of the preponderance of probabilities. In this background, the defence set up by the accused has to be considered and appreciated. In the explanation offered by the accused, he has stated that complainant had forcibly thrust the amount in his shirt pocket. It has come in the evidence that, the accused had no competency or empowered in the matter of renewal of trade license. Further, the trade license certificate was kept ready on 31.3.2011 i.e, much before lodging of the complaint. Under the circumstances, question of accused demanding illegal gratification from the complainant for renewal of trade license, legally & factually does not arise, as no work was pending with the accused at the time of lodging of the complaint. In this 24 Spl.C.C.146/2011.C.C.146/2011 background, the explanation offered by the accused, seems to be reasonable & acceptable.
34. I have gone through the decisions relied on by the learned counsel appearing for the accused. I respectfully agree with the principles laid down in the aforesaid decisions. Having regard to the facts and circumstances of the case and keeping in view the principles laid down in the said decisions, I have come to the aforesaid conclusion. The prosecution has failed to prove the charges leveled against the accused. Hence, I answer Point No.1 & 2 in the Negative.
35. Point No.3:- In the result, I proceed to pass the following:
ORDER The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused
stands cancelled.
MO-1 Currency notes are ordered to be
confiscated to the State after expiry of appeal period.
MO2- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
25 Spl.C.C.146/2011.C.C.146/2011 Mos-3 to 15 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the judgment writer directly on the computer, after transcription, corrected and then pronounced by me in the open court on this the 2nd day of April 2018) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 26 Spl.C.C.146/2011.C.C.146/2011 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 R.Praveen PW2 Eshwarappa PW3 Mohan Raj K. PW4 Niranjankumar C.
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signatures of PW1
Ex.P.2 Authorization letter
Ex.P2(a) Signature of PW3
Ex.P.3 Currency Notes Sheet
Ex.P.3(a) Signature of PW1
Ex.P.3(b) Signature of PW2
Ex.P.3(c) & (d) Signature of PW4
Ex.P.4 Transcription of conversation
between accused & complainant
Ex.P.4(a) Signature of PW1
Ex.P.4(b) Signature of PW4
Ex.P.5 Pre-Trap Mahazar
Ex.P.5(a) Signature of PW1
Ex.P.5(b) Signature of PW2
Ex.P.5(c) Signature of PW5
Ex.P.6 Trap Mahazar
Ex.P.6(a) Signature of PW1
Ex.P.6(b) Signature of PW2
Ex.P.6(c) Signature of PW4
Ex.P.7 Certified copies of documents
relating to renewal of trade license
Ex.P.7(a) Signature of PW4
Ex.P.8 Statement of PW2 u/s 164 of
Cr.P.C
27 Spl.C.C.146/2011.C.C.146/2011
Ex.P.8(a) Signature of PW2
Ex.P.9 Sanction Order
Ex.P.10 FIR
Ex.P.11 Rough sketch
Ex.P.12 Transcription of the conversation
in Button Camera & Digital Voice
Recorder
Ex.P.13 Report given by CW5
Ex.P.14 Report given by CW7
Ex.P.15 Extract of Attendance Register
Ex.P.16 Transcription of mobile
conversation
Ex.P.17 Statement given by accused
Ex.P.17(a) Signature of accused
Ex.P.18 Sample seal
Ex.P.19 Report given by CW6
Ex.P.20 Documents relating to CW4 along
with his report
Ex.P.21 Call Detail Records
Ex.P.22 B-Register Extract of two wheeler
bearing No.KA-53-J-6536
Ex.P.23 Chemical Analysis Report
Ex.P.24 Spot Sketch
List of material objects marked on behalf of the prosecution:
MO.1 Currency notes of Rs.500/- MO.2 Metal seal MO.3 Sample solution Article 1 MO.4 Hand wash solution of CW3 Article 2 MO.5 CD containing the conversation Article 3 recorded in the Digital Voice Recorder MO.6 CD containing the conversation Article 4 recorded during Pre-Trap Mahazar MO.7 CD containing the videograph Article 5 taken during Pre-Trap Mahazar MO.8 Sample solution Article 6 28 Spl.C.C.146/2011.C.C.146/2011 MO.9 Right hand wash of accused Article 7 & 7a MO.10 Left hand wash solution of Article 8,8a accused MO.11 Pant of accused Article 10 MO.12 CD containing the conversation Article 11 recorded during trap MO.13 CD containing the scene Article 12 recorded in the Button Camera at the time of trap MO.14 CD containing the conversation Article 13 recorded in the mobile phone MO.15 CD containing the videograph of Article 14 trap proceedings
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 29 Spl.C.C.146/2011.C.C.146/2011