Karnataka High Court
Sri S Armugum S/O Late Subbanna vs The State By Police Inspector on 29 April, 2015
Equivalent citations: 2015 CRI. L. J. 3359, 2015 (3) AIR KANT HCR 185, (2015) 4 CURCRIR 49, (2015) 4 KCCR 396, (2015) 4 ALLCRILR 53
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 29TH DAY OF APRIL 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.670/2011
BETWEEN:
Sri S Armugum
Aged about 33 years
S/o Late Subbanna
Tax Collector
Office of the Assistant
Revenue Officer
Ward No.88
Banaswadi Range
Bangalore Mahanagara Palike
Dispensary Road
Bangalore R/at No.280,
15th Main, Corporation Quarters
New Bagalur Layout
Bangalore-560 084. .. APPELLANT
(By Sri Suresh S Joshi, Adv.)
2
AND:
The State by Police Inspector
Police Wing
City Division
Karnataka Lokayuktha
Bangalore-560 001. .. RESPONDENT
(By Smt Pushpalatha B, Adv.)
This criminal appeal is filed under Section 374 (2)
Cr.P.C praying to set aside the order dated 25.6.11 passed by
the Spl. Judge, prevention of Corruption Act, Bangalore Urban
District, Bangalore in Spl. C.C.No.06/2006 convicting the
appellant accused for the offences punishable under sections
13(1)(d) read with Section 13(2) of Prevention of Corruption
of the Act 1988 and etc.
This appeal having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by appellant/accused No.2 being aggrieved by the judgment and order of conviction dated 25.06.2011 passed in Spl.CC.No.6/2006 by the Special Judge, Bangalore Urban District, Bangalore, convicting and sentencing the appellant to undergo RI for a period of one year and to pay a fine of Rs.10,000/- and in default to pay the fine 3 amount he shall undergo SI for a period of six months for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
2. The case of the prosecution as per the complaint Ex.P-3 is that one Shylendra Babu S/o C.Shankar Reddy, who is PW-2, lodged the complaint alleging that his father acquired the property measuring 1 acre 29 guntas in Sy.No.102/4 in Challakere Village Ring Road near Hennur Bansawadi road. BDA acquired 23 guntas in said Sy.No.102/4 for the purpose of formation of ring road. Alternatively BDA gave three sites in HRBR Layout Block No.1 measuring 50 X 80 feet registered in the name of father of the complainant. To get the khata in respect of said sites, applications were filled in the name of his father and about six months back the same were submitted with Bangalore Mahanagar Palike Revenue Office at Shivaji Nagar, Commercial Street, Dispensary Road, but the Revenue Inspector Sri C.B.Kumaraswamy troubling the complainant on 4 one or the other reason. On 27.04.2005 when the complainant enquired with Sri B.Kumarswamy in his office for effecting the khata in respect of 3 sites, said Revenue Inspector told the complainant to pay the fees of Rs.10,500/- and to pay the bribe amount, totally the complainant has to pay Rs.45,000/-, then only he will effect the khata. On 28.04.2005 said Revenue Inspector told the complainant to bring Rs.10,500/- fees and Rs.20,000/- bribe amount, and after the khata was kept ready, he can pay the remaining bribe amount of Rs.25,000/-. Complainant was ready to pay fees amount of Rs.10,500/- but he was not willing to pay the bribe amount of Rs.45,000/- as demanded by Sri C.B.Kumarswamy. Hence, he lodged the complaint requesting to take legal action against the said Revenue Inspector.
3. On the basis of the said complaint, case has been registered in Lokayukta Police Station Crime No.13/2005 for 5 the offence under Section 7, 13(1)(d), read with Section 13(2) of the Prevention of Corruption Act, 1988.
4. After conducting and completing the investigation, Investigating Officer has filed the charge sheet against accused Nos.1 and 2 for the said offences.
5. During the course of trial, prosecution has examined six witnesses as PWs-1 to 6 and got marked the documents Exs.P-1 to P-25 and the material objects M.Os.1 to
14.
6. After considering the said materials, ultimately the Trial Court convicted appellant/accused No.2 for the said offences. Hence, appellant is before this Court. 6
7. Heard the arguments of the learned counsel appearing for the appellant/accused No.2 and the arguments of the learned Spl.PP for respondent/Lokayukta.
8. Learned counsel for the appellant has submitted that allegations are only against accused No.1. Prakash and father of PW-2 has not been examined by the prosecution. PW-3/Nagaveni Kumari acted as panch witness in 8 other cases and she is a professional panch witness to the Lokayukta cases. Shadow witness has not been examined though he is very much alive. He has submitted that the evidence of complainant is not corroborated by the shadow witness. The authority, who issued the sanction order had not applied the mind to the materials and mechanically issued the sanction order. The appellant/accused No.2 was not having any pending work of the complainant to show official favour to the complainant. Hence, the learned counsel has submitted that prosecution has utterly failed to prove its case as against 7 accused No.2. Hence, submitted to acquit the appellant/accused No.2.
9. Per contra, the learned Spl.PP for the Lokayukta during the course of his arguments submitted that looking to the evidence of complainant and other prosecution witnesses the recovery of bribe amount has been satisfactorily established by the prosecution. In the list of articles, complainant's name is mentioned. He also submitted that work was not completed and it was kept pending and both the accused were identified by the witnesses. He has also submitted that the hand wash of accused turned to pink colour. Learned Spl.P.P has also submitted that the provision of Section 20(1) of Prevention of Corruption Act comes into play as against accused No.2 and the burden is on accused No.2 to rebut the said presumption. He has submitted that the trial Court properly considered both oral and documentary evidence and rightly convicted the 8 appellant/accused No.2. There is no merit in the appeal and hence, same may be dismissed.
10. In support of the contention, learned Spl.PP for respondent relied upon the following decision :
i. (2007) 7 SCC 625 in the case of Girja Prasad
(dead by LRs) v. State of M.P.
ii. 2008 (4) AIR Kar R 197 in the case of The State
v. V.Sejappa.
11. In reply, learned counsel for the appellant has submitted that FSL report, which is at Page 40 of LCR is not pertaining to this case. PW-3/Nagaveni is not a shadow witness. Hence, he has submitted that lower Court has wrongly appreciated the materials and wrongly convicted appellant/accused No.2 and hence, submitted to allow the appeal.
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12. I have perused the oral evidence of PWs-1 to 6 and material objects M.O.s-1 to 14, judgment and order of conviction passed by the Trial Court, grounds urged in the appeal memorandum and also the decisions relied upon by the learned Spl.PP for respondent, which are referred above.
13. As per the complaint/Ex.P-3, PW-2/Shylendra Babu lodged the complaint that in order to change the khata in respect of two sites pertaining to his father. Though the application was given long back but even then the Revenue Inspector/accused No.1 has not transferred the khata and demanded the bribe amount of Rs.45,000/- apart from payment of fees of Rs.10,500/-. But in his oral evidence, PW- 2/complainant has deposed that in the year 2005 as there was a delay in the change of khata, his father asked him to go to the office and to enquire about the change of khata. His father asked him to go with one Prakash, but the said Prakash took him to the Lokayukta Office. Said Prakash spoke with 10 Lokayukta Inspector regarding lodging of the complaint. When the Lokayukta Inspector asked the complainant to give the complaint in writing, complainant told that he is unable to read and write Kannada and said Prakash wrote the complaint and obtained his signature on it and the same was given to the Lokayukta Inspector. It is as per Ex.P-3 and P-3(a) is his signature. Lokayukta Inspector asked him and Mr.Prakash to come on the next day morning. Accordingly, himself and Prakash went to Lokayukta Office at about 11.30 a.m. Lokayukta Inspector took the complainant, Prakash and his staff to the BBMP Office located at Commercial Street, Bangalore. Himself and Prakash went inside the said BBMP Office. Prakash talked with Kumaraswamy and said Kumaraswamy asked Prakash to give the money to the person sitting in the adjoining room. Accordingly, complainant and Prakash went to the adjoining room and gave Rs.30,000/- to the person sitting there. He has further deposed that he cannot identify the person to whom he had given the said 11 money. He gave the signal to the raiding party by wiping his face with kerchief and immediately Lokayukta Inspector and his staff came there. They apprehended the said Kumaraswamy and the person to whom he had paid the money. Lokayukta Inspector recovered the money from the said person. He does not remember what are the other proceedings that were conducted in the Lokayukta Office. In the Lokayukta Office, Lokayukta Inspector had taken his signature on a written paper. He has seen the same, it is marked as Ex.P-4, P-4(a) is his signature. In the office of the accused, Lokayukta Inspector took his signature on a written paper. He has seen it, it is marked as per Ex.P-5 and P-5(a) is his signature. Accused Nos.1 and 2, who are present before the Court have not demanded any bribe from him for the change of khata of the sites. So at this stage, with the permission of the Court learned PP got the witness as hostile and cross-examined him.
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14. In the cross-examination by the PP, PW-2 has deposed and admitted as true that on 27.04.2005 he had gone to BBMP office situated at Dispensary Road, Shivaji Nagar and met the Revenue Inspector Kumaraswamy in connection with the change of khata of the sites. Witness volunteered and deposed that he met Kumaraswamy along with one Prakash.
He has denied the suggestion that accused No.1/Kumaraswamy demanded bribe of Rs.45,000/- for change of khata of three sites. He has also denied the suggestion that Accused No.1 told him to pay Rs.20,000/- as advance and after the change of khata he should pay the remaining amount of Rs.25,000/-. He has denied the further suggestion that as he was not willing to pay the bribe money to the accused, he went to the Lokayukta Office and lodged his written complaint as per Ex.P-3. He has also denied the further suggestion that he signed the complaint/Ex.P-3 after knowing its contents. He does not remember whether he has stated to the official witnesses that the contents of the 13 complaint are true. In the Lokayukta office he gave cash of Rs.20,000/-, which was intended to be given to the accused persons as bribe. He admitted as true that serial numbers of all the currency notes were noted down in a sheet of paper. The Said sheet is marked as Ex.P-6. He admitted as true as that Lokayukta Inspector got applied some powder to the currency notes. But now he does not remember whether C.W.3/Kum. Nagaveni kept the said tainted currency notes in his left side shirt pocket. He admitted as true that Lokayukta Inspector had given a small tape recorder with an instruction to record the conversation between him and the accused/Kumaraswamy. He denied the suggestion that he signed the mahazar/Ex.P-4 after knowing its contents. He admitted as true that on the same day himself, Lokayukta Inspector and his staff, and CWs-2 and 3 went to BBMP Office located at Dispensary Road, Shivaji Nagar, Bangalore. He admitted as true that only himself and CW-2/Vishwanath entered the said BBMP Office. But he denied the suggestion 14 that they met accused No.1/Kumaraswamy in his office room and he asked him about the work and at that time accused No.1 asked him whether he had brought the money asked by him and he answered in the affirmative. He does not remember that he gave cash of Rs.30,000/- and odd to accused No.2/Armugam, whom he identified before the Court. He does not know if he had paid Rs.20,000/- as bribe money and Rs.10,500/- towards tax to accused No.2. He has not seen accused No.2 keeping the money in his pant pocket. He admitted as true that Lokayukta Inspector got washed both the hands of the person, who had received the money from him separately in the sodium carbonate solution and that both the solutions turned to pink colour. He denied the suggestion that he signed the trap mahazar/Ex.P-5 after knowing its contents. He has seen the cash of Rs.20,000/-, which was given by him to a person, who was sitting by the side of Kumaraswamy, said amount was marked as M.O.1 and the cover in which the M.O.1 was kept is marked as M.O.2. He admitted as true that 15 khata of sites was not changed when himself and Prakash had gone to the Lokayukta Office but now the change of khata of the said sites had been done in the name of his father. He denied the suggestion that accused No.1/Kumaraswamy, who is present before the Court, had demanded the bribe of Rs.45,000/- from him for the change of khata of the sites in the name of his father. He has denied the suggestion that the tainted currency notes of Rs.20,000/- and tax amount of Rs.10,500/- was given by him to accused No.2/Armugam, who is present before the Court.
15. In the cross-examination by the learned counsel for accused, PW-2 has deposed that he had not visited the BBMP Office of the accused located at Shivaji Nagar on 27.04.2005. Accused No.1/Kumaraswamy asked Prakash to give the fee for change of khata to the person sitting in the adjoining room. Accused No.1 had not specifically told to Prakash that he should give the said fee to accused 16 No.2/Armugam. His father and said Prakash are alive. On the date of the trap he had not verified whether the khata of the said sites were transferred in the name of his father. He admitted as true that said Prakash took him to the Lokayukta office stating that the khata of the sites will not be changed in the name of his father unless they give complaint to the Lokayukta office.
16. PW-3/Nagaveni Kumari deposed in her evidence in the examination in chief that on 28.04.2005 when she was working in her office at about 12.00 noon her higher officer namely Mr.Chandrashekar Murthy, Deputy Director, called her to his chamber and she visited his chamber. The higher officer told her that Lokayukta Police have come and she has to assist them as panch witness. Lokayukta Police took her to Lokayukta office, then she met Sri Rammanna, Lokayukta Inspector, in his chamber. The complainant, another witness by name P.Vishwanth and staff of Lokayukta Police were 17 present. The complainant had given one compliant, Lokayukta Inspector gave her the complaint for her perusal. In the said complaint, it was stated by the complainant that one Kumaraswamy/accused No.1 has demanded bribe for effecting khata. She has also deposed in detail about the complainant producing the bribe amount of Rs.20,000/- and another amount of Rs.10,500/- and conducting entrustment mahazar in the Lokayukta office as per Ex.P-4, P-4(b) is her signature. The said mahazar was completed at 3.15 p.m. Thereafter, herself, Lokayukta Inspector and his staff went to BBMP Office located in Dispensary Road. The vehicle was parked at a distance of 500 meters away from the BBMP office. Lokayukta inspector again instructed the complainant and CW-2/Vishwanath to meet the accused and to record the conversation between the complainant and accused. As per his instructions complainant and C.W.2/Vishwanath have gone to BBMP Office. Herself and Lokayukta Inspector and his staff were all standing near the Omini van for the signal. At about 18 3.30 or 3.45 p.m complainant/Shylendra Babu had given the pre-arranged signal by wiping his face. Thereafter, herself and Lokayukta Inspector, all have entered the BBMP Office and the complainant showed two persons stating that when he was about to give the amount, one among two persons had instructed him to give the amount to another person, who was present there. Then, Lokayukta Inspector caught hold the person, who is stated to have received the money. She came to know that person, who received the money is by name S.Armugam/accused No.2. She identified accused No.2 and also accused No.1/Kumaraswamy before the Court. Complainant stated that he has given the amount to accused No.2 and he was searched by the Lokayukta Police, they found the cash of Rs.10,500/- and also Rs.20,000/-. She again stated that accused No.2 himself has produced the cash of Rs.10,500/- and Rs.20,000/- from his pocket. Thereafter, the Lokayukta Inspector got prepared the sodium carbonate solution in a bowl and asked accused No.2 to wash his hands. 19 The said solution turned to pink colour. Lokayukta Inspector got removed the pant, after making alternative arrangement for the pant. Thereafter, the left side pant pocket was washed in the sodium carbonate solution, which turned to pink colour. It was secured and sealed in a bottle, they are marked as M.Os.4 and 4(a). The pant is M.O.5. The amount produced by accused No.2 was tallied with the serial numbers noted in the sheet of paper Ex.P-6. The currency notes are marked as M.O.1, cover in which M.O.1 is kept is marked as M.O.2. Lokayukta Inspector got prepared the rough sketch of the scene of occurrence as per Ex.P-8 and P-8(a) is her signature. Lokayukta Inspector took some photographs of the proceedings, they are as per Exs.P-9 to P-14. Then, Lokayukta Inspector drew the mahazar as per Ex.P-5 and P-5(b) is her signature.
17. With the permission of the Court, the PP got treated this witness as hostile and he cross-examined the said 20 witness. PW-3 admitted as true that accused No.2/Armugam produced the tainted currency notes. His right and left hands were washed separately in sodium carbonate solution prepared in two separate bowls and the solution turned into pink colour. They were marked as per M.Os.7 and 7(a) in respect of right hand and M.Os.8 and 8(a) are in respect of left hand wash. She admitted as true that she has stated before the Lokayukta Inspector that after taking the attested copies of the khata, complainant was asked to produce the tape recorder and the complainant has produced the tape-recorder. When the tape- recorder was operated, though the conversation was recorded but it was not clear. The said micro-cassette is marked as M.O.10.
18. In the cross-examination by the learned counsel for the accused, PW-3 has deposed that when she entered the chamber of Lokayukta Inspector, in his chamber the complainant, one person by name Prakash and other staff of 21 Lokayukta Inspector were present. One Inspector had asked her to sign on the written paper. Ex.P-4 was confronted to the witness and the witness stated that she has signed on Ex.P-4, but she does not know who has typed it and the contents are not read over to her. One Vishwanath was not present at the time of drawing the entrustment mahazar. At the time of pre- entrustment mahazar, Vishwanath was not introduced to her. She had not noted the serial numbers of currency notes. The denomination of notes of Rs.20,000/- consisting of 40 currency notes of Rs.500/- were dictated to her and she had noted the serial numbers of currency notes as per the dictation made by one person, she does not know his name. She does not personally verified the serial numbers of currency notes with the denominations of the writing of the notes. She simply noted the denominations of currency notes as dictated by somebody. The phenolphthalein powder was applied to the notes. Thereafter, the notes were handed over to her, then she kept it in the pocket of complainant/Shylendra Babu. In 22 Ex.P-4, the entrustment mahazar, she has signed on the say of one constable. She does not know about the contents of page No.3, 3rd para. The complaint of the complainant/Shylendra Babu was shown to her but they have not allowed her to read it. The summary of the complaint was also not stated to her by Police or anybody. In para 38 of her deposition she had deposed that one Dharmappa - PSI, one constable by name Basavaraj, one Vishwanath have gone inside the office, also complainant and Basavaraj have gone inside the BBMP office. Another Lokayukta Inspector had also accompanied the complainant and the above said persons. She has not observed the signal given by the complainant to the Lokayukta Police. She had accompanied the Police when the Police called her to accompany them. She had seen accused Nos.1 and 2 on that day. She cannot identify as to who is accused No.1 and who is accused No.2. She does not know whether exactly accused No.2/Armugam was caught hold by the Lokayukta Police and what was the amount found with him. In the room of BBMP 23 office itself she has signed the panchaname Ex.P-5. Ex.P-5 was not read over to her, but hurriedly her signature was taken on it. The Police have prepared the trap mahazar in a hurried manner and asked her to sign the said trap mahazar. She had acted as panch witness in the Lokayukta about eight Lokayukta trap cases. The Lokayukta Police have often and often called her as panch witness.
19. PW-4/M.G.Subba Rao has deposed in his evidence in the examination in chief that on 05.11.2005 he took the further investigation of Cr.No.13/2005 from P.I. Lokesh Kumar. He verified the investigation done by his previous officer and other officers in the case. On 17.11.2005 he had received the memo dated 16.11.2005 issued by Superintendent of Police instructing him to file the charge sheet in the matter, after obtaining the scrutiny report. Along with the memo he has received the Prosecution sanction order dated 21.10.2005. On 17.12.2005 he prepared the charge sheet 24 and placed before the Superintendent of Police for scrutiny and permission. On 19.12.2005 the Superintendent of Police had issued the certificate of scrutiny, which is marked as per Ex.P-19. Then he submitted the charge sheet to the Court.
20. PW-5/R.Ramanna, the Police Inspector, has deposed in his evidence in the examination in chief that on 28.04.2005 complainant of this case had filed the written complaint before the Deputy Superintendent of Police Rajanna and he has received at about 1.00 p.m. and handed over the said complaint to him for further investigation. On the basis of the complaint of PW-1, he registered the case in LAC Crime No.13/2005 for the offences punishable under Sections 7, 13(1)(d), 13(2) of Prevention of Corruption Act.
21. In his further examination in chief, PW-5 has deposed in detail about he securing the panch witnesses i.e., PW-3/Smt.Nagaveni and one Vishwanath, conducting the 25 entrustment mahazar proceedings in the Lokayukta office and drawing the entrustment mahazar as per Ex.P-4. He has also deposed that after completing the entrustment mahazar proceedings, himself, complainant/Shylendra Babu, shadow witness Vishwanath, PW-3/Smt.Nagaveni and his staff went towards the BBMP office of accused No.1/Kumaraswamy. After stopping the vehicle at the distance, again he instructed the complainant/PW-1 and the shadow witness/Vishwanath to go to the office of accused No.1 and to ask about the work of the complainant and in case, if accused No.1 demands and accepts the bribe amount, then they have to come outside and to give the pre-arranged signal. He has deposed that he has also given the tape-recorder to the complainant with an instruction to record the conversation at the time of handing over the bribe amount to the accused. At about 3.50 p.m. complainant came out from the office of accused and gave the signal to him by wiping the face with his hand kerchief. Thereafter, himself and other panch witness Nagaveni and 26 staff have rushed to the office of the accused. When he questioned, complainant stated by showing one person that on the instructions of accused No.1/Kumaraswamy he had given the amount to another person sitting in the office. Then, himself and his staff surrounded the said person and informed their identity. When he questioned the said person, he stated his name as S.Armugam S/o Subbanna, Tax Inspector. When questioned the complainant, he has stated that on the instructions of accused No.1, he had given the bribe amount to accused No.2. Then they got prepared the sodium carbonate solution, the right and left hand wash of accused No.2/Armugam was taken. The said solution turned into pink colour, the same was secured in the bottles. The bottles were sealed and seized. Thereafter, he asked accused No.2 to produce the bribe amount, which he has received from the complainant. Accused No.2 produced the bribe amount of Rs.20,000/- from the left side pant pocket. After verifying the numbers of the said notes, they were put into a cover and it 27 was sealed. Thereafter, he enquired the complainant, whether he had paid the tax to the property owned by him and complainant stated that he had paid Rs.10,500/- to accused NO.2 towards the tax of the property, but accused No.2 had not given any receipt. When personal search was conducted of accused No.2, an amount of Rs.51,370/- were found. Accused No.2 has not given any satisfactory answer about the said amount. He took out Rs.10,500/- from Rs.51,370/- and gave it to the complainant and asked the complainant to give the same to accused No.2 and obtain the receipt. As accused No.2 failed to give satisfactory answer for the remaining amount of Rs.40,870/-, he treated it as the bribe amount received from the public and seized it. Then, by making alternative arrangement of the pant, they took the pant of accused. The left side pocket of the said pant was washed in the solution in the bowl and the colourless solution turned into light pink colour, the same was secured in the bottle and sealed. They are marked as per M.Os.4 and 4(a). The pant is marked as 28 M.O.5. Thereafter, he asked the complainant to produce the tape-recorder, which he had given to him at the time of entrustment mahazar. The cassette in the tape-recorder was played before him and the panchas, and it was not clearly audible. The cassette is marked as M.O.10. Then he enquired Shylendra Babu, shadow witness Vishwanath have given the statement. The shadow witness Vishwanath has also stated that when he met accused No.2, he has received the bribe amount and counted with both the hands. When he questioned accused Nos.1 and 2 about the bribe amount and about the incident happened in their office, accused Nos.1 and 2 gave their explanation as per Ex.P-23 and P-24, respectively. Then he questioned accused No.1/Kumaraswamy to produce the file pertaining to the complainant and accordingly, he produced the file. He obtained the Xerox copy and it was certified as true attested copy. The three attested Xerox copies of the file are collectively marked at Ex.P-16. He has also collected the attendance register, which is marked as per Ex.P- 29
15. The signature of accused No.1 in Sl.No.7 and signature of accused No.2 are marked as per Ex.P-15(b) and P-15(c) respectively. On 02.05.2005 he recorded the statement of complainant/Shylendra Babu, P.Vishwanath, Smt.Nagaveni Kumari and G.R.Basavaraju P.C, K.L.Chandrashekar.
22. In the cross-examination by the learned counsel for the accused, PW-5 has deposed that complainant has not written the contents of the complaint before him. He does not know, who has written the contents of the complaint, which is marked as per Ex.P-3. On the date of complaint only he filed the charge sheet, he has not verified the records for what reasons the change of khata was delayed. Again he volunteered and deposed that he has not filed the charge sheet. During his investigation he had not made enquiry as to why there was a delay in the change of khata in the name of complainant. As per Note.No.24 dated 20.04.2005 marked at Ex.D-1, the khata was ordered to be changed in the name of 30 P.Shankar Reddy by the orders of Asst. Revenue Officer, Banaswadi Range in BMP dated 20.04.2005. As per Ex.D-1 it is ordered on 20.04.2005 by the Asst. Revenue Officer, that the khata is to be changed in the name of P.Shankar Reddy. He has recorded the statement of Shylendra Babu and he has stated that he has met accused No.1/Kumaraswamy on 27.04.2005 and he has not transferred the khata and he is making delay. An amount of Rs.20,000/- was placed in the shirt pocket of the complainant. They have caught hold Armugam/accused No.2 at the place shown in the map at Ex.P-8(f). In the office of the accused, there were number of tables and there were some people. In the hall, staff of the public were present. The complainant has shown accused No.2 and stated that he had given the amount to him on the say of accused No.1. Firstly, the complainant directly took him to accused No.2. The complaint was not against accused No.2. Accused No.1 has not stated that he had given instructions to accused No.2 to take the amount. He denied the suggestion 31 that he has not recorded the statement of Nagaveni and Vishwanath. He denied the further suggestion that he has not taken hand wash of accused No.2/Armugam in the office of the accused. He does not know when the complainant had come to the office of Lokayukta for filing the complaint and at that time, one person by name Prakash had accompanied with complainant.
23. PW-6/Basavaraj Govanagidad, has deposed in his evidence in the examination in chief that, if the sample solution having pink colour containing phenolphthalein sodium carbonate solution is kept for a longer period, the colour may diminish and it may look colourless. If any acid is mixed with pink colour solution containing the phenolphthalein and sodium carbonate solution, it will turn into colourless solution. The pink colour solution containing sodium carbonate and phenolphthalein solution will become colourless due to the factors like humidity, temperature, due to length of time. The 32 scientific reason for changing of pink colour of sodium carbonate solution and phenolphthalein solution into colourless solution is due to lowering of pH value. If the pH value is 7, the solution is neutral, ex-water. If pH value is less than 7 (1 to 7), then the solution is acidic. If the pH value is greater than 7 (7.1 to 14), the solution is base.
24. In the cross-examination by the learned counsel for accused, PW-6 has deposed that he does not know what was the examination done in this case by the person, who had examined the articles. As a Chemist, he has deposed generally about the procedure of conducting the chemical examination. He does not know whether the pH value is conducted or not in this case.
25. PW-1/Sri Jyothi Ramalingam has deposed in his evidence in the examination in chief that from 2004 to March 2006 he had worked as Commissioner, Bangalore Mahanagara 33 Palike, Bangalore. On 27.09.2005 he received the letter from Addl. Director General of Police, Bureau of Investigation, Karnataka Lokayukta, Bangalore, for issuing prosecution sanction order for prosecution of accused No.1/C.B.Kumaraswamy, Revenue Inspector and accused No.2/S.Armugam, Tax Inspector, under the provisions of Prevention of Corruption Act, 1988. Along with the said letter, he has also received the documents mentioned at Sl.Nos.1 to 9 in his deposition. He carefully perused the documents sent by the Lokayukta Police. On perusal of the records he was prima-facie satisfied that accused Nos.1 and 2 demanded bribe of Rs.45,000/- for change of khata in respect of 3 sites in the name of the father of the complainant and they were caught red-handed when accused No.2 was receiving Rs.20,000/- as advance bribe on 28.04.2005. He issued the sanction order, which is marked as per Ex.P-1 and P-1(a) is his signature.
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26. In the cross-examination by the learned counsel for the accused, PW-1 has deposed that the Corporation has issued guidelines as to how the change of khata of the property has to be done for the convenience of the Corporation Officials and the Public. There is also manual of office procedure indicating the powers and duties of various officers of the Corporation. Before issuing the sanction order he had not examined the file relating to change of khata of the property pertaining to the complainant. He does not know, if the Asst. Revenue Officer had already approved the change of khata of the properties in question on the date of trap incident. He denied the suggestion that he has issued the sanction order mechanically and based on the letter of Lokayukta Police without perusing the records of this case.
27. Looking to the oral and documentary evidence produced in the case about which I have referred above in detail, though as per the complaint averments it is the 35 complainant alone had been to the office of accused No.1 on 27.04.2005 to enquire about the change of khata, but during the course of trial and while giving the evidence by the prosecution in the case, they introduced one person by name Prakash, who is said to have accompanied the complainant to the office of accused No.1. It is also introduced during the course of trial that said Prakash himself took the complainant to the Lokayukta office and he himself written the contents of the complaint as per Ex.P-3. Even according to the oral evidence of PW-2/Shylendra Babu, it is Prakash, who prepared the complaint and he had just put his signature on the complaint.
28. The complainant has not supported the case of the prosecution with regard to the demand and acceptance of the bribe amount by accused Nos.1 and 2. He has clearly deposed in his evidence that accused Nos.1 and 2 have never demanded bribe amount from him for change of khata. 36 Though he was treated as hostile witness and sufficiently cross- examined by the PP suggesting the case of the prosecution, but so far as the demand and acceptance of the bribe amount either by accused No.1 or accused No.2, he denied the suggestions made by the PP. Therefore, even during the course of cross-examination of PW-2/complainant, nothing has been elicited by the prosecution so as to establish that there was a demand and acceptance of bribe amount by accused Nos.1 and 2 to show official favour to the complainant in respect of the pending work of the complainant i.e., for transfer of khata of three sites in the name of father of the complainant. Though it is the case of the prosecution that one Vishwanath was the shadow witness in the case, who was asked to accompany the complainant to the office of the accused and to observe what is going to happen between the complainant and accused No.1 and to report the same to the Lokayukta Police; and though it is claimed by the prosecution that Vishwanath accompanied the complainant to the office of 37 the accused, but the said Vishwanath, the shadow witness, has not been examined by the prosecution before the Court.
29. I have perused the evidence of all the prosecution witnesses, nowhere it is mentioned the reason for non- examining of the said Vishwanath before the Court. But the Investigating Officer/PW-5 has deposed in his evidence that when he recorded the statement of said Vishwanath, said Vishwanath has stated before him that accused demanded and accepted the bribe amount from complainant. Even if, this statement is said to be given by Vishwanath before the Investigating Officer, it is not a direct evidence and it is not the personal knowledge of the Investigating Officer and it becomes hearsay about what has been stated by Vishwanath before him. To establish the factum of demand and acceptance of bribe amount by the accused persons, it is only the complainant and the shadow witness, who are the proper witnesses to depose about the same. But as I have already 38 observed above, the complainant himself turned hostile and not supported the case of the prosecution and Vishwanath, the shadow witness, has not been examined before the Court.
30. Though it is the case of the prosecution that Lokayukta Police gave a small tape-recorder to the complainant with an instruction to record the conversation, which is going to take place between the complainant and the accused, it has come on record during the course of evidence of PW-5/Investigating Officer that the complainant produced the tape-recorder before him and when he played it though the conversation has been recorded but it was not clearly audible. The said cassette is also produced as per M.O.11.
31. Even looking to the evidence of PW-
3/Smt.Nagaveni, another panch witness in the case for the entrustment mahazar/Ex.P-4 and the trap mahazar Ex.P-5 and who was with the Lokayukta Police during the course of trap 39 proceedings as per the case of prosecution, she has deposed that when she had been to the office of Lokayukta Inspector and met him in his chamber, one person by name Prakash and complainant were present. Lokayukta Inspector told about PW-2/Shylendra Babu filing the complaint in the case. But she deposed in her evidence that she was not allowed to go through the contents of the complaint. Even she has also deposed that the entrustment mahazar/Ex.P-4 was already kept ready and she does not know who typed/wrote the contents of the same and in hurry her signature was obtained on Ex.P-4. When she had been to the office of Lokayukta another panch witness Vishwanath was not present. She has also deposed that she had not personally verified the currency notes with the denomination of the notes, but simply noted the denominations of the currency notes as dictated by somebody. She has signed on Ex.P-4/entrustment mahazar, on the say of one Constable. Looking to her further evidence before the Trial Court, it shows that when they left Lokayukta office 40 towards BBMP office of the accused, it is not her evidence that firstly complainant and the shadow witness were sent ahead to the office of the accused, then, after sometime complainant came out of the office of the accused and gave the pre- arranged signal. Even she has deposed about the drawing of trap mahazar that it was not read over to her and hurriedly her signature was obtained on Ex.P-5. Her evidence also shows that she was acted as panch witness in eight trap cases in Lokayukta and Lokayukta Police often and often called her to act as panch witness. So her evidence also raises reasonable doubt in the mind of the Court, whether really the entrustment mahazar and the trap mahazar proceedings were taken place as contended by the prosecution.
32. Investigating Officer has not recorded the statement of Prakash, who said to have accompanied the complainant to the office of accused No.1, who has also accompanied the complainant to the office of Lokayukta 41 Police and who himself prepared the complaint and the reasons for non-examining and not recording the statement of said Prakash is also not made known to the Court.
33. It is no doubt true, that as per the trap mahazar Ex.P-5 and the evidence of PW-5/Investigating Officer, the amount has been seized from the possession of accused No.2/Armugam, but mere recovery of the amount from the possession of accused No.2 is not sufficient unless and until, it is established that the said amount was received by the accused on demand and accepted the said amount as bribe to show official favour to the complainant. It is true that the trap mahazar proceedings under Ex.P-5 and the oral evidence of PW-5/Investigating Officer also shows that the hand wash of accused No.2 was taken in two separate bowls of right and left hands and the said solution turned into pink colour. But there is no evidence by the prosecution to show that the accused No.2 received the bribe amount by which hand and whether 42 he has handled the tainted currency notes with both the hands. Unless there is a material placed before the Court to show about these aspects, it is difficult to believe the case of the prosecution that accused No.2 received the amount and handled the same with both the hands and because of that reason, the hand wash of right and left in the sodium carbonate solution turned into pink colour.
34. Looking to the prosecution material, it has come on record that the tainted currency notes recovered from accused No.2/Armugam is marked as M.O.1 and the cover containing the said notes is marked as M.O.2. But looking to the case of prosecution and the contents of the entrustment mahazar/Ex.P-4, it shows that the amount of Rs.20,000/- produced by the complainant were smeared with phenolphthalein powder, then, PW-3/Smt.Nagaveni was asked to keep the said tainted currency notes into the shirt pocket of complainant/Shylendra Babu and accordingly, she kept the said tainted currency notes in the shirt pocket. It is not the 43 case of the prosecution that said currency notes smeared with phenolphthalein powder were kept in the cover and that cover kept into the shirt pocket of PW-2/Shylendra Babu. When that is so, how this cover came into existence, which was marked as per M.O.2 during the course of trial of the evidence of prosecution witnesses. If it is accepted that the currency notes were kept in the cover and the said cover was kept into the shirt pocket of PW-2/Shylendra Babu, in that case also it raises reasonable doubt as to the case of the prosecution, this is why because, there is no evidence on record that the cover was also smeared with phenolphthalein powder. If the cover is not smeared with phenolphthalein powder and if that cover was given by the complainant/Shylendra Babu into the hands of accused No.2, if accused No.2 received the said cover and when there is no specific evidence that accused No.2 counted or handled the currency notes by both the hands, then, there would be no possibility that his hand wash in the sodium carbonate solution turning into pink colour. When the cover 44 said to contain the currency notes is also marked as M.O.2 as per the prosecution case, then it requires that the notes would have been kept in the said cover in the Lokayukta Office and then, the cover containing such notes was kept in the shirt pocket of accused No.2, about these aspects also the prosecution is not worthy of credit.
35. The materials also show that as per Ex.D-1, which is got marked during the course of cross-examination of prosecution witnesses that, the Asst. Revenue Officer, Banaswadi Range, BMP has ordered for the transfer of khata in the name of the father of complainant on 20.04.2005 itself i.e., much earlier to conducting the trap, which was said to be on 28.04.2005. PW-5/Investigating Officer during the course of his evidence in the cross-examination has admitted that he has not enquired as to why there was delay in the change of khata in the name of father of the complainant. But when the Note No.24 dated 20.04.2005 marked as per Ex.D-1 was 45 confronted to him, he admitted that as per Ex.D-1, it is ordered on 20.04.2005 by the Asst. Revenue Officer that the khata is to be changed in the name of P.Shankar Reddy. So this material also shows that as on the date of conducting the trap i.e., on 28.04.2005, the process of changing the khata into the name of the father of complainant was already ordered and it was not pending in the office of accused No.1.
36. Looking to the evidence of PW-3/Nagaveni also it has not brought on record that she asked the complainant about the contents of the complaint and whether they are true. So there is no evidence on the side of the prosecution that PW-3/Nagaveni and another panch witness Vishwanath got the confirmation from the complainant about the contents of the complaint, whether they are true. But on the contrary and as I have already observed above, it has come on record that another panch witness Vishwanath was not at all present in the 46 Lokayukta Office when the entrustment mahazar proceedings were conducted as per Ex.P-4.
37. I have perused the decisions relied upon by the learned Spl.PP for the respondent-Lokayukta, which are referred above, but in view of my discussion and looking to the oral and documentary evidence about which I have discussed above, the decisions relied upon by the learned Spl.PP will not come to the aid and assistance of the prosecution case.
38. Looking to the entire materials on record, there is no acceptable and worth believable materials to establish that accused No. 2 demanded and accepted the bribe amount of Rs.20,000/- from complainant/Shylendra Babu for the change of khata in respect of three sites into the name of P.Shankar Reddy, the father of PW-2/complainant. All these aspects were not at all considered by the Trial Court properly. Ignoring all these infirmities in the case of the prosecution, the 47 learned Trial Judge wrongly appreciated the oral and documentary evidence and wrongly held that prosecution proved its case beyond all reasonable doubt. The findings recorded by the Trial Court are not in accordance with the materials placed on record i.e., both oral and documentary. Hence, the said findings are not sustainable in law.
39. Perusing the entire prosecution materials, reasonable doubt arises as to the case of the prosecution and the benefit of doubt has to go to the appellant/accused No.2. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence imposed by the Trial Court is hereby set-aside and the appellant/accused No.2 is acquitted of the charges leveled against him and he is set at liberty forthwith, if he is not required in any other cases.
Sd/-
JUDGE BSR