Bangalore District Court
Lokayukta Police vs K.N. Ramachandrappa on 22 August, 2017
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA), BENGALURU
(CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 22nd day of August 2017
Spl.C.C. No.77/2010
COMPLAINANT: Lokayukta Police,
City Division, Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: K.N. Ramachandrappa,
S/o Late Nanjappa,
53 years, H.C.No.1776,
Banasavadi Police station,
Bengaluru City.
R/at No.1, 'A' Block,
K.R.Pura Police Quarters,
Bengaluru.
(By Sri. G Sriramappa -Adv.)
Date of commission of
offence 20-05-2009
Date of report of occurrence 05-06-2009
Date of arrest of accused: 05-06-2009
2 Spl.C.No.77/2010
Date of release of accused 08-06-2009
on bail:
Date of commencement 18-09-2014
of evidence
Date of closing of 01-02-2017
evidence
Name of the complainant Sri. K.Vipinesh
Offences complained of u/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge
Acquitted
Date of Judgment: 22-08-2017
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988.
2. The case of the prosecution in brief is, that the accused K.N.Ramachandrappa is working as Head constable in Banaswadi Police station, Bengaluru. Complainant K.Vipinesh S/o Kumaran has given a complaint before the Lokayukta police 3 Spl.C.No.77/2010 on 05.06.2009 alleging that on 20.05.2009 the Banaswadi Police have raided the shop by name Natura @ Mall run by the complainant and his partner Anwar Hussain, on the basis of the complaint given by Aravind Prasad, Manager of IPR India Group, Bengaluru stating that duplicate Dove Soaps are being sold and two staff of complainant were also arrested and accused who is the Head constable and assistant to the Investigating Officer in the said case has demanded and received Rs. 5,000/- and on 04.06.2009, when complainant contacted the accused to collect the original of the license of the shop, accused again demanded bribe of Rs.20,000/- to delete his name from the charge sheet. On this complaint, Police Inspector, Lokayukta police has registered the case in Cr.No.42/2009 and made preparations for the trap of the accused. The Investigating Officer has secured the official witnesses and conducted pre-trap proceedings in their presence and drawn pre-trap mahazar on the same day. On the same day, in the office of the complainant, when accused received 4 Spl.C.No.77/2010 tainted notes of Rs.10,000/- as bribe, he is trapped by Lokayukta police and trap proceeding is conducted and trap procedures are followed. The accused is arrested and is produced before the court and is later released on bail. The Investigating Officer proceeded with the investigation and recorded the statement of witnesses, collected documents and obtained chemical analyses report relating to the seized material objects and after completion of the investigation submitted final report before the sanctioning authority to get sanction to prosecute the accused. After obtaining the sanction the Investigating Officer has filed the charge sheet before this court against the accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988.
3. This court has taken cognizance of the offences. The accused is provided with the copy of the charge sheet and its enclosures. After hearing both the parties, before framing the charge and after finding that there are prima-facie 5 Spl.C.No.77/2010 materials to frame the charge, Charge is framed against the accused. The accused pleaded not guilty and claimed to be tried.
4. The prosecution has led the evidence of PWs 1 to 5 and documents as per Exs.P.1 to P.27 are marked for the prosecution. MOs 1 to 10 are also marked.
5. Statement of accused under Section 313 of Cr.P.C. is recorded and the accused denied all the incriminating evidence appearing against him. The accused has not chosen to lead any defence evidence on his behalf.
6. Heard the arguments of both the counsels.
7. Now, the points that arise for my consideration are :-
POINTS
1. Whether there is a valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant working as Head constable in Banaswadi Police station has demanded the bribe amount of 6 Spl.C.No.77/2010 Rs.20,000/- from the complainant for not registering the case against the complainant on complaint given by Aravind Prasad for selling duplicate Dove Soaps in shop of the complainant and on 05.06.2009 at about 7 p.m. in the shop of complainant situated at Natura @ Mall, Banaswadi, Bengaluru, demanded and received Rs.10,000/- from the complainant as illegal gratification as a motive for not registering the criminal case against the complainant on the complaint given by Aravind Prasad and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution proves beyond all reasonable doubt that the accused being a public servant working as Head constable in Banaswadi Police station, on 05.06.2009 at about 7 p.m. in the shop pf complainant situated at Natura @ Mall, Banaswadi, Bengaluru, by abusing his position as public servant demanded and obtained Rs.10,000/- from the complainant to make pecuniary advantage against public interest and thereby committed offence of criminal misconduct punishable u/s 13(1)(d) of Prevention of Corruption Act and punishable u/s 13 (2) of Prevention of Corruption Act?
4. What order?
8. My findings on the above points are :-
Point No. 1 : In the Affirmative Point No. 2 : In the Negative 7 Spl.C.No.77/2010 Point No. 3 : In the Negative Point No. 4 : As per final order for the following:
REASONS
9. Point No.1 : As per section 19 of Prevention of Corruption Act, no Court shall take cognizance of the offences punishable u/s. 7 and 13 alleged to have been committed by the public servant, except with the previous sanction of the competent authority. The accused was working as Head constable in Banaswadi Police station at the time of alleged incident. Therefore, Accused is a public servant. Hence, valid sanction from the competent sanctioning authority is must to prosecute the accused.
10. In the present case, prosecution sanction order has been given by Deputy Commissioner of Police, East Division, Bengaluru City who is stated to be competent authority to accord sanction to prosecute the accused under the provisions of Prevention of Corruption Act. Prosecution sanctioning Officer has given evidence as PW.1. In his evidence he has stated 8 Spl.C.No.77/2010 that, he has received the requisition from ADGP, Karnataka Lokayukta on 06.10.2009 seeking sanction for prosecution of the accused who was Head constable at that time. He has stated that with the letter he received copy of FIR, complaint, pre-trap mahazar, trap mahazar, report of chemical examiner, copies of statement of witness and other connected documents. He has stated that after perusing all these materials and on proper appreciation, he was satisfied that, prima-facie there are sufficient materials to accord sanction to prosecute the accused and accordingly he has accorded sanction as per Ex.P.1. In the cross-examination he has stated that his opinion is based on the documents referred in Ex.P.1. The documents which are perused by the PW.1 while giving sanction like complaint, FIR, Pre-trap mahazar, trap mahazar, statement of witnesses are also part of this file.
11. In Ex.P.1, sanction Order, it is clearly stated that the sanctioning authority after verifying the investigation papers produced before it and by applying the mind has come 9 Spl.C.No.77/2010 to the conclusion that their exist a prima-facie case for grant of sanction to prosecute the accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act. In the cross-examination of PW 1, the competency of the said witness to accord sanction to prosecute the accused is not disputed. In the course of arguments, learned counsel for the accused has referred to Ex.P.1, in which in page No.2, it is mentioned that complaint was given against the present complainant Anwar Hussain in Cr.No.285/2009, which is wrong as the complainant is not Anwar Hussain. Except this clerical mistake in the name of complainant, no other defects in the sanction order is shown before the court. PW.1 who is competent sanctioning authority, has stated that he has perused all the material documents which are placed before him and after perusal of the same he has accorded the sanction. Since the competent authority i.e. PW.1 has considered the relevant materials and applied his mind, before 10 Spl.C.No.77/2010 according sanction as stated in the evidence, the sanction accorded by PW.1 as per Ex.P.1 is a valid sanction.
12. The learned counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court reported in (2015)1 SCC (Cri) 344. (2014)14 SCC 295 Central Bureau of Investigation Vs Ashok Kumar Aggarwal in which the Hon'ble Supreme Court has stated the requisites for valid sanction and has held that - For valid sanction prosecution has to establish and satisfy court that entire relevant facts had been placed before the sanctioning authority and authority had applied its mind and granted sanction in accordance with law. As stated by PW.1 the prosecution has placed all the investigation papers before the sanctioning authority and sanctioning authority has accorded sanction to prosecute the accused by considering the same. There is absolutely no material to show that the sanction accorded by PW.1 to prosecute the accused is not valid. Therefore, sanction 11 Spl.C.No.77/2010 accorded by the PW.1 is valid sanction. Accordingly Point No.1 is answered in the Affirmative.
13. Point Nos.2 and 3 : To avoid repetition of discussion and as both these two points are interlinked with each other they are taken together for consideration.
14. The case of the prosecution is that against the shop of the complainant by name Natura @ Mall, the case in Cr.No.285/2009 was registered in Banaswadi Police station and shop was raided on 20.05.2009 and duplicate Dove soaps were seized by the police and two staff of the complainant were also arrested and even the license of the complainant was taken by the police. As per the complaint averments, the present accused was the assistant of Investigating Officer in the said case and had Rs.5000/- amount from the complainant and subsequently he again demanded bribe of Rs.20,000/- for not registering case against the complainant and his partner. About this demand of bribe by the Accused, complainant gave complaint to Lokayukta Police and after making all preparation 12 Spl.C.No.77/2010 for trap, the accused was trapped on he receiving Rs.10,000/- tainted notes from the complainant and it is alleged that accused has committed offence under Prevention of Corruption Act. To prove the commission of offences by the accused, prosecution has led the evidence of PWs 1 to 5. PW.1 is the sanctioning authority. Among the other 4 witnesses examined for the prosecution PW.2 K.S. Shivanna is the panch witness, PW.3 Anwar Hussain is the partner of the complainant and is also shadow witness. PW.5 Byrappa is Sub-Inspector of Banaswadi Police station and PW.4 K.C. Laxminarayana is Investigating Officer. Inspite of all efforts, CW.1 could not be secured and examined.
15. PW.2 K.S. Shivanna, in his evidence has stated that he was working as Accounts Superintendent in the office of Commissioner of Social Welfare Department and as per the directions of higher officer he along with CW.4 appeared before the Lokayukta police Inspector wherein complainant was also 13 Spl.C.No.77/2010 present and complainant has produced Rs.10,000/- before CW.15 and number of the same were noted in Ex.P.2 and Lokayukta police have smeared phenolphthalein powder on the currency notes and CW.4 counted those tainted notes and placed the same in the right side pocket of the pant of CW.1 and hands of CW.4 are washed in sodium carbonate solution and it turned to light pink colour and has also stated about doing further formalities of pre-trap. The witness has also stated that after giving the bribe amount to the accused on demand, complainant was asked to give signal to the Lokayukta Inspector, by giving miss-call and PW.3 Anwar Hussain was asked to accompany the complainant. He has also stated about the pre-trap mahazar drawn as per Ex.P.3. The witness has further stated that trap team proceeded to the shop of the complainant, he waited in the shop as customer and Lokayukta Police Inspector was standing at a little distance in the shop and has stated that himself and CW.4 have focused the attention to the stair case of the building. He has further 14 Spl.C.No.77/2010 stated that after a while, Lokayukta Police Inspector and staff went towards second floor of the building and then he also followed them and found the accused with complainant and that after seeing the Lokayukta police accused took out tainted currency notes and thrown away. He has stated that CW.4 took up the notes from the floor and tallied with Ex.P.2 and thereafter notes were seized. Witness has also stated about the hand wash of the accused and stated that solution turned to pink colour and it was seized. The witness has also stated that the pant of the accused was also seized and thereafter they came to Banaswadi Police station and some records pertaining to complainant were seized and they came to Lokayukta office in which the CD was seized and mahazar was drawn as per Ex.P.4 and also stated that accused has given the explanation as per Ex.P.5 and PW 2 has also identified the photographs as per Ex.P.6 to P.14. In the cross-examination, he has admitted that complainant was asked to contact the accused and call him to the shop of the complainant by 15 Spl.C.No.77/2010 Lokayukta Inspector and admitted that in order to avoid suspicion in the mind of the accused complainant told that he will remain alone in the shop. The witness has denied that accused has not taken tainted notes and then thrown it out.
16. PW.3, in his evidence has stated about the seizure of some soap products in the year 2009 by Banaswadi police stating that they are duplicate and that one of his staff was arrested and the said case ended in dismissal. The witness has totally turned hostile and expressed his ignorance about the trap of the accused and also about demand and acceptance of the bribe amount by the accused in his presence. The witness, though cross-examined at length by treating him as hostile by the prosecution, nothing worth has been elicited.
17. PW.5 is the Police Sub-Inspector of the Banaswadi Police station at the relevant time. In his evidence he has stated that on 05.06.2009 at about 7.30 p.m. when he was in the Police station Lokayukta Police brought accused and other two persons and have asked him to produce the case file 16 Spl.C.No.77/2010 relating to Cr.No.285/2009 and he has produced the same. The witness has also stated that Lokayukta police have played CD conversation in Tamil language and he could not understand the conversation. He has stated that Lokayukta police have played another CD containing visuals depicting accused and other two persons and he has identified the accused in the visuals. He has stated that he gave report as per Ex.P.20 and Station House Dairy as per Ex.P.27. In the cross-examination for the accused he has stated that accused was talking in Kannada and other two persons were talking in Tamil language and he has stated that visuals played was not depicting demand or acceptance of money by accused and it contained only the hand wash of accused. The witness has admitted that he was the Investigating Officer in Cr.No.285/2009.
18. PW.4 is the Investigating Officer who has stated about the registration of complaint on receiving the complaint from the complainant and securing the panch witnesses and 17 Spl.C.No.77/2010 explaining about the complaint and following pre-trap procedure to trap the accused and also stated about smearing of phenolphthalein powder on the currency of Rs.10,000/- produced by the complainant and then instructing CW.4 to keep notes in the pocket of the complainant for giving it to the accused at the time of trap etc. and also about preparing pre- trap mahazar. He has also stated that he along with trap team proceeded towards the shop of the complainant situated at Doddabanasawadi and stopped the vehicle and they have waited for a phone call of the accused and at about 6.25 p.m. accused called the complainant to the Police station, but complainant by stating that he is not keeping well, asked accused to come to the shop and accused told that he will come within 15 minutes. The witness has further stated that he instructed PW.3 to be with complainant and that PW.4 and his staffs were observing from a little distance. He has further stated that at about 7 p.m. accused came to the shop of complainant and met complainant and they talked for a while 18 Spl.C.No.77/2010 and then complainant and PW.3 along with accused went to the second floor of the building and after 10 minutes while climbing down, the complainant gave a missed call and gave signal and immediately they rushed to the shop and apprehend the accused and after seeing the trap team, accused has taken out tainted notes from his pant and threw it on the floor. The witness has stated that he asked the staff to guard the notes fell in the ground and disclosed identity to the accused and collected currency notes through the panchas and they went to the second floor where the complainant had paid the money and serial numbers were verified and tallied as per Ex.P.2 earlier. PW4 has also stated that the hand wash of the accused was taken in a Sodium Carbonate solution and the solution turned to pink colour and by making alternative arrangement pant of the accused got removed and his pant pocket was dipped in the sodium and it turned pink colour and same was seized in a bottle and pant was also seized and then they all proceeded to the Banaswadi Police station. The 19 Spl.C.No.77/2010 witness has further stated that he informed the trap of the accused to the higher officer and that accused produced the documents relating to the complainant and he got it certified and also collected station house dairy etc., and also stated about transmitting of the recordings in Pen camera to the CD and Transcription sheet of paper etc., and further procedure followed by him in the trap proceedings. He has also stated about the trap mahazar drawn and further investigation done by him including recording statement etc., and also stated that he has secured service particulars of the accused and has stated that thereafter file was handed over to CW.16 who after obtaining sanction order had filed the charge sheet. He has also identified the material objects including the cash. PW4 in his cross-examination has admitted that at the time of receiving the complaint he has not enquired the antecedents of the complainant. He has denied that he has not verified the veracity of complaint and admitted that Banaswadi police had arrested two staffs of the complainant in connection with 20 Spl.C.No.77/2010 Cr.No.285/2009 which was pertaining to selling of duplicate Dove soaps. He has admitted that in case of sale of duplicate products, the license of the manufacturer and seller liable for cancellation and the original manufacturer is entitled to sue for damages and admitted that CW.5 Byrappa was investigating the said crime. He has stated that he has collected the materials to show that the accused was the Assistant to Investigating Officer in the said case. He has denied that accused was not working under CW.5 Byrappa but he was working with Sakkri, Police Inspector. He has admitted that he has not collected details as to in whose name sim card of the mobile from which accused is said to have called is standing. The witness admitted that there were other customers in the shop. He has admitted that he has not produced certificate under Section 65 B of Evidence Act.
19. To prove the commission of offence by the accused u/s. 7 and 13 of the Prevention of Corruption Act, prosecution 21 Spl.C.No.77/2010 has to mainly establish the demand and acceptance of the bribe amount by the accused. The prosecution also have to prove that the said demand and acceptance of the bribe amount is in respect of official act to be performed by the accused. Only if these requirements are established, accused can be held guilty. Though there is a presumption in favour of the prosecution as provided u/s.20 of Prevention of Corruption Act 1988, such presumption can be drawn only when 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.
20. Learned counsel for the accused has drawn my attention to a decision reported in 2010(3) KCCR 1851 State of Karnataka Vs M.Gopalakrishnaiah and others in which our Hon'ble High Court in Para No.22 of the Judgment has held as under:-
"Even to draw a presumption under Section 20 of the Act, the prosecution is required to prove 22 Spl.C.No.77/2010 that there was demand and acceptance. If the demand and acceptance for the purpose of official favour is proved by the prosecution beyond reasonable doubt, the burden may shift on the accused to rebut the same, however, when initial burden of proving the demand and acceptance is not proved, the presumption under Section 20 of Act does not arise........"
Even in another decision reported in (2016) 1 SCC (Cri) 544 = (2016) 1 SCC 713 N.Sunkanna Vs State of Andhra Pradesh, Hon'ble Supreme Court has held that it is only on proof of acceptance of illegal gratification that presumption can be drawn under S.20 of the Act that such gratification was received for doing or forbearing to do any official act. It is also held that unless there is proof of demand of illegal gratification, proof of acceptance will not follow. On going through these decisions it is clear that even to draw the presumption as provided u/s.20 of the Prevention of Corruption Act, the prosecution is required to prove that there was demand and acceptance of illegal gratification.
23 Spl.C.No.77/2010
21. As per the case of the prosecution, accused was the assistant to the Investigating Officer in Cr.No.285/2009 which was registered on the complaint filed against the shop of the complainant by name Natura @ Mall for selling duplicate Dove Soap. According to the prosecution the accused has demanded the bribe for not registering the case against the complainant and his partner. Therefore, according to the prosecution for doing the official favour of not registering the case against the complainant and his partner, the accused has demanded the bribe. The learned counsel for accused vehemently argued by referring to the evidence of PW.4 and 5 that accused was not the assistant to the Investigating Officer in Cr.No.285/2009 and that it is the Investigating Officer who is the authority to insert or delete any accused from the charge sheet and the accused who is only the Head constable has no role to play in registering or not registering a case against the complainant or somebody else. Therefore, it is argued that there is no work of the complainant pending with the accused or accused was not 24 Spl.C.No.77/2010 having any power to do any official favour to the complainant and as such, in the absence of any power of the accused to do official favour to the complainant, demanding and accepting bribe does not arise. PW.5 has admitted that he was the Investigating Officer in Cr.No.285/2009. PW.4, in his cross- examination has admitted that in SHD the detail entry showing as to in which case accused was acting as I.O assistant is not mentioned, but has stated he was I.O in all the cases and has denied that the accused was working with Sikkri, Police Inspector and not with PW.5 Byrappa. The PW.4 has admitted that in Cr.No.285/2009 PW.5 being the I.O had the authority to submit charge sheet by adding or deleting the names. On the basis of this evidence it is argued that the accused was not in a position to do any official favour to the complainant and there was no work of the complainant pending with the accused. The copy of the SHD produced at Ex.P.27 show that HC 1776 i.e. accused is given duty of I.O Assistant in Banaswadi Police station. The Accused has not placed any material to show that 25 Spl.C.No.77/2010 he was not working as I.O Assistant under PW.5 in Cr.No.285/2009. Cr.No.285/2009 is admittedly registered against the shop of the complainant and the file pertaining to this Crime is marked as Ex.P.26. The accused is working as Head constable and he was entrusted the duty of assisting the Investigating Officer in same Banaswadi Police station. As such it can be accepted that the accused as I.O Assistant in Banaswadi police station, wherein Crime No.285/09 against shop of the complainant was pending investigation, was in a position to do official favour to the complainant. Therefore, the contention that there was no official work of the complainant pending with the accused as contended by the accused cannot be accepted. As such prosecution has established that there was official work of the complainant and accused was in a position to do official favour to the complainant.
22. The next aspect to be considered is demand and acceptance of the bribe amount by the accused. To prove the demand of the bribe amount, the prosecution has contended 26 Spl.C.No.77/2010 that when the complainant contacted the accused by phone for return of the shop license accused demanded the bribe amount and later at the time of trap also the accused demanded the bribe amount and he has given the same. To prove that accused has demanded the bribe from the complainant, when the complainant contacted the accused by phone the prosecution is relying on the transcription of the audio conversation alleged to have been recorded in the mobile of the complainant on 05.06.2009 marked as Ex.P.18 and the CD alleged to be containing conversation between the accused and the complainant which is marked as Mo.10. As stated above, complainant is not examined in this case. The partner of the complainant who was also accompanying the complainant is examined as PW.3 but he has totally turned hostile. The witness has denied the demand of any bribe amount by the accused for doing any favour to the complainant and himself. Therefore to show that on 05.06.2009 or earlier, before registering of the complaint, there was demand of bribe 27 Spl.C.No.77/2010 amount by the complainant there is no oral evidence available before the Court.
23. MO.10 CD and the transcription of the conversation marked at Ex.P.18 are the only materials that are before the court and are relied to prove the said demand of bribe amount by the accused before registering of the complaint. Both these Ex.P.18 and MO-9 come within the definition Electronic record and are not primary evidence. As per the decision of the Hon'ble Supreme Court reported in 2015 (1) SCC (Cri) 24 = (2014) 10 SCC 473 Anwar P.B. Vs P.K.Basheer and others, when the secondary evidence of the electronic recording are produced before the court, they cannot be admitted in evidence unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act. The Hon'ble Supreme Court has also held, "The evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if 28 Spl.C.No.77/2010 requirement under section 65B of the Evidence Act are not complied with, as the law now stands in India".
24. In another decision of the Hon'ble High Court of Karnataka in Crl.Petition No.3202/2017 dated 27.04.2017 between M.R.Hiremath Vs State by Karnataka Lokayukta, it is held; "The evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 r/w section 65 of the Evidence Act shall yield to the same. Thus in the case of any electronic evidence, it shall be accompanied by a certificate in terms of Section.65 B obtained at the time of bringing the document on record, no secondary evidence is permissible in respect of the same......."
25. On going through these decisions it is clear that unless certificate U/s.65 B of the Indian Evidence Act is produced along with the electronic record, it cannot be considered as admissible evidence. Therefore, as the 29 Spl.C.No.77/2010 prosecution has not produced any certificate under Sec.65B of the Indian Evidence Act, MO.10 CD and Ex.P.18 alleged transcription of the conversation, cannot be considered as evidence. As stated above, there is no other evidence to prove the demand of bribe amount by the accused prior to giving of the complaint.
26. As regards the demand of bribe by the accused at the time of trap, though there is alleged conversation at the time of trap recorded in the CD as per MO-9 and the conversation has been alleged to have transcribed as per Ex.P.19, there is no certificate as required U/s.65B of the Indian Evidence Act. Hence, as discussed above, even Ex.P.19 and MO-9 are not of any help to the prosecution and are not admissible in evidence. According to the prosecution the accused has demanded the bribe amount and received the bribe amount at the time of trap in the presence of PW.3 from the complainant. As stated above, complainant is not examined in this case and PW.3 who is the shadow witness has 30 Spl.C.No.77/2010 totally turned hostile and denied the receipt of any amount by the accused in his presence from the complainant. Though PW.2 is independent panch to the pre-trap and trap mahazar at Ex.P.3 and 4 and has given evidence in favour of the prosecution, admittedly, this witness was not present at the spot when the accused demanded bribe from the complainant and tainted notes are alleged to have been given by the complainant to the accused in the second floor of the building. According to PW.2 he was in the ground floor shop and was acting as a customer and was watching the steps. According to the prosecution, the tainted notes were given to accused by the complainant in the second floor of the building and thereafter, while complainant, PW.3 and accused coming down from the second floor, signal was given to PW4 by giving miss call and then trap team went there and apprehended the accused and by seeing them accused has thrown out the notes on the floor. PW.2 has stated that when they were going towards second floor accused has thrown the notes on the floor and then CW.4 31 Spl.C.No.77/2010 was asked to take out the notes from the floor and then further formalities of the trap has been followed.
27. On looking to the entire evidence there is no direct evidence before the court to show the receipt of the tainted notes by the accused since complainant is not examined and his partner who was a shadow witness has turned hostile and the incident took place in the second floor according to the prosecution and entire trap team was in the ground floor or outside the building. Therefore, demand of the bribe amount by the accused at the time of trap and its acceptance are not established by any cogent evidence. The I.O, PW.4 and the panch witness PW.2 are the only two witnesses to prove the trap and both these witnesses were not present at the spot when the amount is said to have been demanded by the accused and tainted notes are alleged to have been given by the complainant to the accused.
28. In a decision reported in 2010 (4) SCC 450, Banarasi Dass Vs State of Haryana, Hon'ble Supreme Court 32 Spl.C.No.77/2010 has held "mere recovery of money by accused by itself is not enough, in absence of substantive evidence of demand and acceptance". The Hon'ble Supreme Court has held that "It is a settled cannon of criminal jurisprudence that conviction of accused cannot be founded on basis of inference- Offence should be proved against accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards guilt of accused". In another decision reported in 2014 SAR (Cri) 554 B.Jayaraj Vs State of AP, Hon'ble Supreme Court has held that proof of acceptance of illegal gratification can follow only if there is proof of demand. To prove the demand of the bribe amount by the accused prior to giving complainant or at the time of trap, there is absolutely no acceptable evidence before the court. PW.3 has turned hostile and the alleged electronic records produced are not admissible in evidence. Therefore, the prosecution has utterly failed to 33 Spl.C.No.77/2010 prove the demand of illegal gratification by the accused for doing official favour to the complainant. When demand of illegal gratification is not established, presumption under Sec.20 of the Prevention of Corruption Act is also not available to the prosecution. In a decision of our Hon'ble High Court reported in 2008 (2) KCCR 985 State by Lokayukta police, Mandya Vs K.M.Gangadhar Hon'ble High Court has held that "Evidence on record brings out the fact of the currency notes being recovered from the pocket of the accused and his hands being tested positive yet they themselves are not sufficient to hold that the accused demanded illegal gratification from the complainant and received the same". In 2015(1) KCCR 898 Sri.N.A.Suryanarayana @ Suri Vs State by Inspector of Police, CBI/SPE, Bengaluru, the Hon'ble High Court has explained the procedure that is to be followed in Laying trap and held that, "an independent witness has to be sent along with him with clear instruction to stand at a 34 Spl.C.No.77/2010 reasonable distance so as to over-hear conversation between the complainant and accused". It is also held that mere possession of money would be inadequate to raise the presumption under Sec.20.
29. On going through these decisions, in the light of the facts of the present case, there is absolutely no evidence to show demand of bribe by the accused from the complainant. Even there is no cogent evidence to prove the acceptance of bribe amount by the accused. The tainted notes were seized from the floor where according to the prosecution, accused has thrown the notes. Though it is stated that the hand wash of the accused has turned to pink colour, showing that accused has touched the notes, as held in the decision cited above, mere touching of the currency notes by the accused would not be sufficient and on the basis of inference, the guilt cannot be proved. The evidence of PW.2 and 4 are not corroborated by the evidence of shadow witness PW.3 and complainant is not examined. In the decision reported in 2015 AIR SCW 951 35 Spl.C.No.77/2010 C. Sukumaran Vs State of Kerala, the Hon'ble Supreme Court has held that the demand of Illegal gratification by the accused is sine-qua-non for constituting the offences u/s.7 and 13 of the Prevention of Corruption Act. In 2013 (4) SCC 153 State of Punjab Vs Madhan Mohanlal Verma it is held that mere recovery of tainted notes is not enough, as there is necessity of demand for illegal gratification. In this case, independent official witnesses were not used though they were available and secured at the time of pre-trap proceedings for conducting the trap. The partner of the complainant who was to act as a shadow witness has totally turned hostile.
30. For all these reasons, prosecution has failed to prove the demand of bribe by the accused, which is an essential requirement to constitute the offence u/s.7 and 13 of Prevention of Corruption Act. The prosecution has also failed to prove actual acceptance of tainted currency notes by the accused. Even if the acceptance of tainted currency notes by 36 Spl.C.No.77/2010 the accused is accepted, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or the illegal gratification demanded by the accused. Therefore, the presumption under Section 20 of the Prevention of Corruption Act is not available to the prosecution to shift the onus on the accused to rebut and displace the presumption. Therefore, accused not leading any evidence in his defence, does not have any effect. On considering all these aspects, prosecution has failed to prove the guilt of the accused for the offences punishable u/s.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act 1988, beyond reasonable doubt, by leading cogent, concrete and convincing evidence before this court. Hence accused is entitled to be acquitted. Accordingly, Point No.2 and 3 are answered in the negative.
31. Point No.4: For the discussion and findings on Point Nos. 1 to 3, accused deserves to be acquitted. Hence, following order is passed:
37 Spl.C.No.77/2010
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
M.O.1, 2 and 4 to 10 are ordered to be destroyed after the expiry of appeal period, as are worthless.
MO.3 is ordered to be confiscated to the state Government after the expiry of appeal period.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 22nd day of August 2017) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
*** 38 Spl.C.No.77/2010 ANNEXURE List of witnesses examined for the prosecution:
PW.1: Chandrashekar
PW.2: K.S.Shivanna
PW.3: Anwar Hussain
PW.4: K.C.Lakshminarayana
PW.5: Byrappa
List of documents exhibited for the prosecution:
Ex.P.1 Sanction Order
P.1(a) signature of PW.1
Ex.P.2 Currency detail sheet
P.2(a) &2(b) signature of PW.2
Ex.P.3 Pre-trap mahazar
P.3(a) to (e) Signature of PW.2
P.3 (f) Signature of PW.3
P.3 (g) Signature of PW.4
Ex.P.4 Trap Mahazar
P.4 (a) to 4(h) Signature of PW.2
P.4 (i) Signature of PW.3
P.4 (j) Signature of PW.4
Ex.P.5 Explanation of the accused
P.5 (a) Signature of PW.2
Ex.P.6 to P.10 Five photos (p.trap)
P.6(a)to 10(a) Images of PW.3
Ex.P.11 to 14 Four photos (trap)
Ex.P.15 Portion of the statement of PW.3
Ex.P.16 Complaint
Ex.P.17 FIR
P.17 (a) Signature of CW.1
P.17 (b) Signature of PW.4
Ex.P.18 Transcription of the CD
Ex.P.19 Transcripted conversation of the
pen camera
P.19 (a) Signature of PW.4
39 Spl.C.No.77/2010
Ex.P.20 Report of CW.5
P.20 (a) Signature of CW.5/PW.5
Ex.P.21 Report of CW.6
Ex.P.22 Sketch
Ex.P.23 Chemical examination report
Ex.P.24 CDR
Ex.P.25 Service particulars of accused
Ex.P.26 Copies of case file in Cr.No.285/2009
Ex.P.27 Copy of Station House Diary
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence :
- Nil -
Material Objects marked by prosecution :
M.O.1 : Sample Solution taken during pre-trap proceedings.
M.O.2 : Hand wash of CW.4
M.O.3 : Cash of Rs.10,000/-
M.O.3A : Cover in which cash was seized
MO.4 : Sample solution bottle
MO.5 : Bottle containing right hand wash
MO.6 : Bottle containing left hand wash
MO.7 : Bottle containing the pant wash of accused.
MO.8 : Pant of accused seized during the trap
MO.9 : CD during trap proceedings
MO.9A: Cover of CD
MO.10: CD produced during the pre-trap proceedings
MO.10A: Cover of CD
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
40 Spl.C.No.77/2010
Orders pronounced in the open Court
vide separate Judgment :
ORDER
Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is
acquitted from the charges levelled
against him for the offences
punishable under Sections 7, 13(1)(d)
r/w 13(2) of the Prevention of
Corruption Act, 1988.
The bail bond executed by accused
and his surety stands cancelled.
M.O.1, 2 and 4 to 10 are ordered to be
destroyed after the expiry of appeal
period, as are worthless.
MO.3 is ordered to be confiscated to
the state Government after the expiry
of appeal period.
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
41 Spl.C.No.77/2010
42 Spl.C.No.77/2010
43 Spl.C.No.77/2010