Bangalore District Court
Lokayukta Police Inspector vs Vasudeva N.Naik on 17 November, 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 17th day of November 2017
Spl.C.C. No.152/2012
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: 1. Vasudeva N.Naik,
S/o Narayana R.Nayak,
Kengeri PS, Presently working as
Police Inspector, Ex.Prime Minister
Security, Bengaluru.
R/o No.B-10, 4th block,
Jayanagara Police quarters,
Bengaluru.
2. Ganapathi Narayana Nayak,
Moolemane, Sunkasala,
Ankola.
(For A-1- By Sri. C.G. Sundar,
A.2- Sri. P.N.Hegde -Advs.)
2 Spl.C.No.152/2012
Date of commission of 08.11.011 to
offence 26-11-2011
Date of report of occurrence 26-11-2011
Date of arrest of accused:
Accused No.1: 27.11.2011
Accused No.2: 28.11.2011
Date of release of accused
on bail:
Accused No.1: 01.12.2011
Accused No.2: 07.03.2012
Date of commencement 12-05-2014
of evidence
Date of closing of 04-03-2017
evidence
Name of the complainant Sri. Arshad Sheriff
Offences complained of U/s 7, 8, 10, 13(1)(d)
r/w 13(2) of PC Act,
1988 & 201 and 403
of IPC.
Opinion of the Judge Acquitted
Date of Judgment: 17-11-2017
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused No.1 and 2 for the offences punishable under Section 7, 8, 10, 3 Spl.C.No.152/2012 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988 and 201 and 403 of IPC.
2. The case of the prosecution in brief is as under:-
The accused No.1 is a Police Inspector, Kengeri Police station Bengaluru and is a public servant. Accused No.2 is a private person. Complainant Arshad sheriff s/o Ahamed Sheriff has given complaint stating that himself and his father are having 4 lorries and on 08.11.2011 when he was coming on the lorry bearing No.MH.09.L.8783, accused No.2 Ganesh Nayak stopped the Lorry and taken it to Kengeri Police station and on the next day it was unloaded and stopped in the Station premises and when complainant enquired, accused told him that it caused accident to bike and that it is stolen lorry etc and they enquired about other lorries of the complainant and accused no.1 asked the complainant to show all the lorries to accused No.2 and Kuber and when the complainant has shown them Lorry bearing No. KA.28.7765 and MH.09.Q.6476, they have taken original RC, Tax card, Insurance and permit of the 4 Spl.C.No.152/2012 two lorries and accused no.1 enquired about fourth lorry bearing Regn.No.KA.28.A.1896 and it was forcibly unloaded and brought to police station. Two lorries of Complainant were kept in the Police station and complainant was taken to the office of ACP wherein ACP has enquired about the lorry of the accused and told the complainant that accused No.1 will make investigation and asked him to get the vehicle released. On 18.11.2011 complainant met the accused No.1 and he has asked him to bring his father and told that in respect of two lorries he will file a Memo and asked him to get it released. On 19.11.2011 complainant contacted accused No.2 by phone and requested him to make some arrangement and release all the lorries and on 21.11.2011, Accused No.1, Inspector enquired father of complainant and also taken his statement and complainant was asked to come in the evening and when complainant went there, accused No.1 has told that he will say later about the two lorries which are stationed in the Police station, but in respect of two lorries which are not seized he 5 Spl.C.No.152/2012 demanded Rs.1 lakh each for not seizing the same and the said conversation has been recorded. On 23.11.2011 when the complainant met the accused No.1 along with his relative, the accused No.1 has told that he cannot reduce the amount of Rs.1 lakh per Lorry and the conversation has been recorded.
Thereafter complainant met Lokayukta Police on 24.11.2011 and they gave him digital voice recorder and thereafter he went to the Police station and talked to accused No.2 and he asked him to bring Rs.1,25,000/- and on the same night when the complainant met the accused No.1, he asked him to contact accused No.2. This conversation has been recorded in the voice recorder and thereafter on 26.11.2011 complainant gave complaint before Lokayukta police against accused for demanding bribe for not seizing the two vehicles and not releasing two vehicles which are already kept in the Police station. On receiving the complaint the Lokayukta police have registered the complaint in Cr.No.59/2011. Lokayukta police by securing two panchas have conducted pre-trap proceedings 6 Spl.C.No.152/2012 and on the same day made arrangements to trap the accused. While proceeding trap the accused no.2 contacted the complainant and asked him to come near Kengeri Police station and he took complainant in car bearing No.TN.23.AM.4234 to Srinidhi Restaurant and then came back and while coming back towards Kengeri Police station on the car and on the way accused No.2 contacted accused No.1 over mobile and asked the complainant to give the bribe amount in his hands and the complainant has given Rs.1,25,000/- tainted notes to accused No.2 and he kept it in the dash board of the car and then contacted accused No.1 and informed him that he has received Rs,1,10,000/- from the complainant and near Police station, he asked complainant to get down and after complainant getting down, accused No.2 driven the car in high speed and efforts to stop him have failed and while chasing him in Bike, car driven by accused No.2 has even dashed to Bike. In the Kengeri Police station Trap proceedings continued and Accused No.1 was arrested and subsequently after few days accused No.2 7 Spl.C.No.152/2012 was also arrested. Even the car in which Accused No. 2 received the amount was traced. Investigating Officer continued the further investigation and after completion of investigation and obtaining Prosecution sanction Order, Charge sheet is filed against both the accused for offences punishable under Section 7, 8, 10, 13(1)(d) r/w Sec. 13 (2) of Prevention of Corruption Act 1988 and Section 201 and 403 of IPC.
3. Cognizance of the offences is taken by this court. Accused Nos.1 and 2 have appeared before the court and they are enlarged on bail. Copies of the Charge sheet and its enclosures are furnished to both the accused.
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4. Heard both the parties regarding framing of charge. As there is prima-facie materials found against the accused, after hearing both the parties regarding Charge, Charges are framed against both the accused and read over to them, they have pleaded not guilty and claimed to be tried. 8 Spl.C.No.152/2012
5. In support of its case, Prosecution has examined PWs 1 to 19 and documents as per Exs.P.1 to P.55 are marked. MOs 1 to 19 are also marked.
6. After completion of the prosecution evidence, statement of accused Nos.1 and 2 as required under Section 313 of Cr.P.C. is recorded and the accused have denied all the incriminating evidence appearing against them. The accused have not chosen to lead any defence evidence on their behalf. In the cross-examination of Prosecution witnesses Exs.D.1 and D.2 are marked for the accused.
7. Heard both the counsels and perused the records.
8. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves that there is a valid sanction to prosecute the accused No.1?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 being the public servant while working as Police Inspector in Kengeri Police station, Bengaluru had seized two lorries with the help of accused No.2 and when 9 Spl.C.No.152/2012 the complainant approached him for release of the lorries and informed him that there are two more lorries belonging to him, accused No.1 on 21.11.2011 demanded the complainant to pay bribe amount of Rs.1 lakh each for not seizing the 2 Lorries and on 26.11.2011 between 3.15 p.m. to 3.40 PM, in a car bearing No.TN.23.AM.4234 moving towards Kengeri Police station from Srinidhi Restaurant in Mysore Road, accused No.1, through accused No.2 demanded Rs.1,25,000/-
from the complainant and instructed him to pay the same to accused No.2 and the accused No.2 on behalf of the accused No.1 has received Rs.1,25,000/- as gratification other than legal remuneration, as a motive or reward to show the official favour to the complainant in releasing the lorries and not seizing the two other lorries 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 no.1 being a Public servant working as Police Inspector in Kengeri Police station, Bengaluru, on 26.11.2011 between 3.15 PM to 3.40 PM, in a car bearing No.TN.23.AM.4234 moving towards Kengeri Police station from Srinidhi Restaurant, by corrupt or illegal means abusing his position as a public servant obtained Rs.1,25,000/- pecuniary advantage from the complainant through Accused No.2, without public interest and thereby committed offence of criminal misconduct u/s 13(1)(d) of Prevention of Corruption Act which is 10 Spl.C.No.152/2012 punishable u/s 13 (2) of Prevention of Corruption Act?
4. Whether the prosecution further proves beyond all reasonable doubt that the accused No.2 on 26.11.2011 between 3.15 p.m. to 3.40 PM in a car bearing No.TN.23.AM.4234 moving towards Kengeri Police station has demanded and received illegal gratification of Rs.1,25,000/- from the complainant on behalf of accused No.1 as a motive or reward for inducing, by corrupt or illegal means, accused No.1 not to seize 2 lorries and for releasing the two lorries which are already seized and thereby committed an offence punishable under Sec.8 and 10 of Prevention of Corruption Act?
5. Whether the prosecution further proves beyond all reasonable doubt that Accused No.2, on 26.11.2011 between 3.15 p.m. to 3.40 pm in a car No.TN.23.AM.4234 moving towards Kengeri Police station, after obtaining illegal gratification of Rs.1,25,000/- from the complainant on behalf of accused No.1 has escaped with the vehicle and caused disappearance of evidence with an intention of screening the offender from legal punishment and thereby committed an offence punishable under Sec.201 of IPC?
6. Whether the prosecution further proves beyond all reasonable doubt that the accused No.2 on 26.11.2011 between 3.15 p.m. to 3.40 pm after receiving illegal gratification of Rs.1,25,000/-, escaped in the car No.TN.23.AM.4234 towards 11 Spl.C.No.152/2012 Bengaluru and took away the amount and dishonestly misappropriated the same for his own use and thereby committed an offence punishable under Sec.403 of IPC?
7. What order?
9. My findings on the above points are :-
Point No. 1 : In the Affirmative
Point No. 2 to 6 : In the Negative.
Point No. 7 : As per final order for the following:-
REASONS
10. Point No.1 : This point is relating to validity of
sanction to prosecute Accused No.1. There is no dispute that accused was working as Police Inspector in Kengeri Police station and was a public servant. The accused No.1 is charged for the offences under Sec.7 and 13(1)(d) r/w 13 (2) of Prevention of Corruption Act. As per Sec.19 of the Prevention of Corruption Act, previous sanction to prosecute the accused who is a public servant is essential. To prove the sanction given to prosecute the accused and its validity, the prosecution has examined PW.1 Lalrokhumapachuau, DG and IGP as PW.1. 12 Spl.C.No.152/2012 In his evidence he has stated that he is working as DG and IGP of Karnataka and he received requisition from ADGP seeking sanction to prosecute the accused No.1 Vasudeva N.Nayak and along with letter he received the investigation documents and he has perused the same and he was convinced that there is prima-facie case against accused No.1 Vasudeva N.Nayak regarding demand and acceptance of bribe. He has stated that he has issued Sanction to prosecute accused as per Ex.P.1. In the cross-examination he has stated that he had the power of appointing and removing accused No.1 from service by virtue of his office. He admitted that rank of Police Inspector has been upgraded to Group-B officer with effect from 02.08.1979 and denied that Government is the only competent authority for removal of Group-B Officer in the Home department.
11. Accused No.1 is disputing validity of sanction on the ground that PW.1 is not competent authority to issue sanction and there is no proper application of mind by him before 13 Spl.C.No.152/2012 issuing the sanction order and all the relevant materials were not placed before him. The learned counsel for the accused no.1 has vehemently argued that the rank of Police Inspector has been upgraded to Group-B cadre in 1979 and Government is the competent authority for removal of Police Inspector and therefore it is only the Government which is competent authority to accord sanction. In the Schedule of K.S.P. (Disciplinary Proceedings) Rules 1965 at Sl.No.3, for Officers of the rank of Inspectors of Police, the prescribed authority empowered to appoint and impose severe penalty is shown as Officers of the rank of Deputy Inspector General of Police, to whom the police officer is subordinate at the time of taking action under these rules. The learned counsel for accused has produced an order dated 02.08.1979 of the Government of Karnataka by which the post of Police Inspector, is upgraded to Class II Gazetted.
12. On looking to this Order and even the admission given by PW.1, it is clear that the rank of Police Inspector is 14 Spl.C.No.152/2012 upgraded to Class II Gagetted from 02.08.1979. However, in K.S.P. (Disciplinary Proceedings) Rules 1965, Schedule is substituted by GSR 197, dated 26.10.1989 with effect from 27.10.1989, in which concerned Officer of the rank of Deputy Inspector General of Police to whom the Police Officer is subordinate at the time of taking action under these rules is shown as Disciplinary Authority. In Karnataka State Police (Disciplinary Proceedings) Rules, 1965, in Rule 4 it is stated that Officers specified in column (4) of the Schedule and the Officers superior in rank to such Officers, shall be the prescribed Officers competent to impose the penalties specified in column (5). So it is clear that even the Officers superior in rank to such Officers mentioned in the Schedule are competent to impose penalties. As per the Schedule, it is the DIG, who is appointing authority to the Officers in the rank of Inspector of Police and DIG is empowered to impose the penalty stated in Section 23 (b)(i) to (iv). PW.1 who has accorded sanction to prosecute Accused No. 1 is DG and IGP and is higher in Rank to 15 Spl.C.No.152/2012 DIG. Though Karnataka Police Act 14 of 1990 provides that Sec. 23 of the Karnataka Police Act is omitted, still the proviso to the amendment specifically provides that Rules made under the Act relating to Recruitment and Conditions of the service of the members of the Police force shall continue in force and provisions of Sec.23, 24 and 25 shall also continue in force as part of the disciplinary Rules, as if they were Rules made under the said Act. Therefore, proviso to the amendment makes it very clear that though Sec. 23 is omitted vide Karnataka Police Act No.14 of 1990 in respect of the disciplinary Rules Sec.23 continues to be in force. Therefore, PW 1 was competent to accord sanction to prosecute the accused No.1.
13. The learned counsel for accused has also relied on the decision reported in 2013(3) KCCR 1788 M.Manjunath Vs State by Lokayukta police, Mysuru, in which the Hon'ble High Court has held that "when there is no valid sanction for the offence alleged under the Prevention of 16 Spl.C.No.152/2012 Corruption Act, Special Judge would have no jurisdiction to try the case and it was impermissible for the court and such a trial in proceeding to address the charge with reference to the offence punishable under Sec.201 of IPC when the charges and the trial were composite and a valid sanction for prosecution of the appellant was the Sine-qua-non in proceeding against the appellant".
14. It is also argued that the PW.1 has not applied his mind before issuing the sanction and the audio and video CD's relied by the prosecution is not placed before him and hence the sanction order is in-valid. PW.1 has clearly stated that he has gone through materials and was convinced that there is prima-facie case against the accused. Hence, it cannot be held that PW.1 has not applied his mind before according sanction to prosecute the accused. It is on the basis of very same documents, which were produced before the sanctioning authority, this court found prima facie case and taken the 17 Spl.C.No.152/2012 cognizance and registered the case against the accused. Under such circumstances, there is valid sanction from the competent authority to prosecute the accused. Since proper and valid prosecution sanction order is proved to have been issued by competent Authority, Point No.1 is answered in the Affirmative.
15. Point Nos.2 to 6: To avoid repetition of discussion and as these points are interlinked with each other, they are taken together for consideration.
16. The case of the prosecution is that, out of 4 Lories owned by complainant and his father, two Lorries were taken to Kengeri Police station and are not released to Complainant and in respect of other two Lorries, Accused no. 1 demanded illegal gratification of Rs.1 lakh each for not seizing them and Accused No.1, through accused No.2 received tainted notes of Rs.1,25,000/- as illegal gratification in the moving car and committed the offences alleged against him. Further case of the prosecution is that Accused No.2 received tainted notes of 18 Spl.C.No.152/2012 Rs.1,25,000/- from the complainant in the moving car on behalf of Accused No.1 and to induce accused no.1, not to seize the two Lorries of complainant and to release the two Lorries already seized and after receiving the tainted notes, has escaped in the car and has caused disappearance of evidence and has also misappropriated the amount and committed offences alleged against him.
17. Prosecution has examined many witnesses to establish the guilt of the accused. PW.2- Arshad Sheriff is the complainant. He has stated the prosecution case in his chief evidence. The sizing of two lorries by accused and demand made by accused No.1 for illegal gratification for not seizing the remaining two Lorries and accused No.2 asking complainant on behalf of Accused No.1 to pay Rs.1,25,000/- and promise to get the two Lorries released etc are stated by PW.2 in detail. He has also stated about giving complaint to the Lokayukta Police and further events like pre-trap proceedings and also stated the incidents that took place at the time of trap. He has stated in 19 Spl.C.No.152/2012 that while coming towards Kengeri Police station with Trap team, accused No.2 called him and asked to come near Police station and when he came there in two wheeler, the accused No.2 also came in a black car and asked him to board the car and after he boarding the car he has driven car towards Srinidhi Hotel and they spent some time in the hotel and thereafter he drove the car towards Kengeri Police station and while so coming accused No.2 talked to accused No.1 by phone and then asked him to pay the amount. Witness has further stated that he gave tainted notes to Accused No.2 and he took it and kept in dash board of the car. The witness has also stated that, when car came near Kengeri Police station, he was asked to get down and when he got down from the car and gave signal to Lokayukta Police Inspector, the accused No.2 drove the car and has not stopped and he could not be caught. The witness has also stated about further proceedings that took place in Kengeri Police station wherein accused No.1 Vasudev N. Nayak was arrested. He has also stated about further 20 Spl.C.No.152/2012 events in the case including arrest of Accused No.2, tracing of the Car in which he had given the tainted notes to accused No.2 and has also stated that dash board of car in which tainted notes were kept was swiped by cotton and when cotton was immersed in Solution, it turned to pink colour. In the cross-examination, he has denied that two lorries which were kept in the Police station were scrapped lorries and were re- built with the help of original Chassi numbers. He admitted that some other engine was fitted in the lorry bearing No.MH.09.L.8783 and that he do not know that on the basis of statements of two accused persons in Cr.No.241/2011 these two lorries were seized as are stolen. He denied that he was asked by the ACP to assist in investigation in Cr.No.241/2011 and to approach the court for release of Lorries. The witness has stated that after the trap he obtained the interim custody of the Lorries in Cr.No.241/2011. He has denied that he has not met the accused No.1 on 09.11.2011 and 15.11.2011 and there was no demand of bribe by the accused No.1 for not 21 Spl.C.No.152/2012 seizing the other vehicles. In the cross-examination on behalf of accused No.2 he has stated that on 08.11.2011 accused No.2 was in civil dress and he had not seen him earlier and he had come in the private motor vehicle. He has stated that while giving complaint, he was knowing that accused No.2 is not a police officer and his official work was not pending with accused No.2. He has denied that earlier to 26.11.2011 he had not contacted Accused No.2 over phone. He has stated that PW3 had not accompanied him, when he boarded the Black Car and denied that he has deliberately withheld PW.3 and has denied that Accused No.2 has not demanded money and had not kept tainted notes in dash board of black car.
18. PW.3- K.Chandranna and PW.-4 N. Krishna Murthy are the panch witnesses of this case. PW.3 is stated to be shadow witness. Both these witnesses have stated the prosecution case in their evidence. They have stated that as per the instructions of their higher officers they went and met 22 Spl.C.No.152/2012 CW.48 Lokayukta Police Inspector and have stated about pre trap proceedings in detail. They have stated that after applying Phenolphthalein powder on the currency notes of Rs.1,25,000/- PW4 has kept the notes in right and left side pant pocket of PW.2 and hands of PW4 washed in the solution and it turned to pink colour and have also stated about the instructions given by Lokayukta police to complainant and PW.3 who is shadow witness. PW.3 has stated that after they reached near Police station, he along with PW.2 proceeded towards Kengeri Police station on the motor cycle of PW.2 and PW.2 went near bakery and he followed him. He has stated that he has seen the accused No.2 coming near PW.2 and that he took PW.2 in a black colour car and the car proceeded towards Mysuru. Both the witnesses have stated that, thereafter they followed the car in Govt vehicle and proceeded towards Srinidhi hotel and PW.2 and accused No.2 were inside the hotel and then PW.4 along with Police constable went inside Hotel pretending as customers. These witnesses have also stated that Accused No.2 23 Spl.C.No.152/2012 and PW.2 came out after some time and again proceeded in the car towards Kengeri Police Station, and they followed the car. They have also stated that near Kengeri Police Station, car stopped and PW2 got down from the car and gave signal and before they could surround it, car proceeded towards Bengaluru. They have also stated that PW2 informed that Accused No.2 received the tainted notes and kept it in dash board of the car. They have also stated about unsuccessful attempts made to intercept the black car. They have also stated about further events which took place in the course of investigation. Subsequent tracing of the car, arresting of accused No.1 and 2, drawing Trap-Mahazar and other Mahazars are also stated by these witnesses. PW.3 has stated that dash board of the car was swiped by Cotton and then it was immersed in solution and it turned to pink colour. PW 4 has denied the swiping of the dash board by cotton and has also denied this part of his alleged statement given before Investigating Officer, as per Ex.P.24.
24 Spl.C.No.152/2012
19. In the cross-examination for accused No.1, PW.3 has stated that he assisted Lokayukta police in other cases of the same nature and denied other suggestions put to him. In his cross-examination for Accused No.2 he has stated he was at a distance of about 30 feet from PW.2. He has stated that as PW.2 has not introduced him to accused No.2, he could not board the black car. He has stated that immediately after PW.2 got down from the car, the car left that place and proceeded towards Bengaluru City. He has stated that the face of the person who kept money in the dash board was not visible in the contents of button camera.
20. PW-4, in his cross-examination for accused No.1, has stated that before attempt to apprehend accused No.2, they have not entered Kengeri Police station and has stated that he has not acquainted with the voice of accused No.1 and PW.2 and voice in the compact disc was not clear and he do not know when the lorries and documents were seized. In his 25 Spl.C.No.152/2012 cross-examination for accused No.2 he has stated that he has not gone through the complaint and he cannot say the registration number of the black car.
21. PW.5 Abdul Razak Rafi Parveez is the relative of the complainant who has stated that along with PW.2 he had gone to the Police station and met accused No.1, who demanded money for release of the two lorries and he had told accused No.1, that he can arrange Rs.50,000/- for which accused No.1 not agreed and he recorded the conversation in spy camera and has produced compact disc containing the contents of Spy camera before Lokayukta Police. He has also stated about the happenings at the time of trap. In the cross-examination for accused No.1, he has denied that he is in the habit of instigating the persons by using his position as media reporter and denied that accused No.1 has not demanded any bribe. He has denied his statement as per Ex.D.1. He has stated that after the trap, he came to know that two lorries were fitted 26 Spl.C.No.152/2012 with some different engines and has denied that as accused No.1 has not obliged to release two lorries un-conditionally, he instigated PW.2 to lodge complaint with Lokayukta police.
22. PW.6- Shivananda Hanumanthappa Chalavadi is the Police Inspector of Ankola Police station, who has produced documents pertaining to accused No.2 as per Ex.p.25 and 26 and has stated that statement of habitual offenders will be recorded every month after interrogation and same is entered in Ex.P.25. He has stated that accused No.2 is a MOB and had informed him that from past 2 or 3 months he was working as driver of private vehicle under accused No.1 on salary of Rs.20,000/-. In cross-examination he has stated that MOB file pertaining to accused No.2 was opened in Sirsi Rural Police station and then it was transferred to Ankola Police station and he has not produced documents evidencing transfer of MOB file to Ankola Police station.
27 Spl.C.No.152/2012
23. PW.7 Venkatesh C is Police Constable working in Karnataka Lokayukta, Police Wing. He has stated that he has videographed the pre-trap proceedings and he followed the trap team on his personal motor cycle and afterwards he followed PWs 2 and 3 on the motor cycle with CW.48 and near Kengeri Police station he noticed PW.2 speaking with some one in phone near bakery. He has stated that, thereafter PW2 proceeded in a black colour car bearing No.TN.23.AM.4234 driven by accused No.2, towards Mysuru and it stopped infront of Srinidhi Sagar hotel etc. He has stated that thereafter when car came infront of Kengeri Police station, PW.2 got down from the car and gave signal and by that time accused proceeded in the car towards Bengaluru and their attempt to chase and catch him have failed and in the signal, car has even dashed to his Bike and that on 28.11.2011 he has given a report about obstruction caused by accused No.2 in discharge of his public duty. In the cross-examination for the accused No.2, he has stated that car proceeded towards Bengaluru City from Kengeri 28 Spl.C.No.152/2012 Police station and car stopped as it was red signal and he stopped the motor cycle in the signal point on left side of the car and he was not in uniform. He has denied that accused No.2 has not dashed the car to the motor cycle.
24. PW.8 Shivaswamy H, PC has stated about seizing of two Lorries as per the direction of Accused No.1 and preparing mahazar on 17.11.2011. PW.9 E.R.Ranganath, Police Sub- Inspector, Kengeri Police station, has stated that on 22.11.2011 as per the instructions of accused No.1 he had deputed police officials to Hubli to trace out the thieves and he do not know accused No.2. PW.10 Smt. N.Shashikala is Women Police constable in Kengeri Police station who has stated the visuals seen in the CD played before her, in which writer Nagaraj, SHO Venkatesh ASI are seen entering the chamber of accused No.1. PW.12 Doddamuthaiah, Asst. Sub-Inspector of Kengeri Police station has stated that 12.11.2011 accused No.1 had deputed him along with Shaffiq and other police officials to Hubli, 29 Spl.C.No.152/2012 Davanagere and other places to trace out the accused and properties and they went in the car driven by accused No.2 and he apprehended Nijamuddin and feroz from Majestic and produced them before SHO. In the cross examination, he has denied that accused No.2 was not the driver of the vehicle.
25. PW.11 Mallikarjuna N.C., Sub-Inspector of Police has stated that on 29.11.2011 Lokayukta Police visited the station and conducted search of cub-board of accused No.1 in his presence and also stated about registering case in Cr.No.338/2011 as per Ex.P.28 on the complaint given by Lokayukta Police. He has also stated about seizure of Black Car and giving intimation to Lokayukta police. He has also stated that audio CD was played before him and he could not identify the voice and one of the voice appeared to belong to accused No.1. The witness was treated as hostile by the Public Prosecutor and was cross examined, wherein he has denied his statement as per Ex.P.29. He has admitted in his cross- 30 Spl.C.No.152/2012 examination for accused No.2 that before handing over the car to Lokayukta police all the items found in the car were taken by him and before taking those items he has not drawn the mahazar.
26. PW.13 Shivanna, Police Constable has stated that he went in lorry No.MH.09.8783 for unloading at platform road and after unloading return to Police station with empty lorry and reported the matter to accused No.1. PW.14 M.Somanna, Police Constable has stated that on 15.11.2011, accused No.1 had taken him and Ganesh Naik and Giriyappa to a excise depot at Hosur road in connection with a lorry belonging to a pending case and at that time the owner of the lorry came and agreed to bring the lorry and after unloading the liquor bottles they returned to Police station along with the lorry and has stated that on 22.11.2011 accused No.1 had deputed him and others to trace out the culprits and the stolen properties and on 23.11.2011 accused No.2 also came there and informed 31 Spl.C.No.152/2012 accused No.1 over phone about non-tracing of the accused. PW.15 Beerappa R.Kannal is also Police Constable in Kengeri Police station. He has stated that on 10.11.2011 he went to Bijapur and Kollapur to collect information about two lorries required in Cr.No.241/2011 and stated that he collected B Extract of lorry No.MH.09.L.8783 and one Shivaram Sinde, the RC owner has informed him that he has sold the said lorry to Arshad Shariff and on 19.11.2011 handed over the documents to accused No.1 who gave it to Investigating Officer's assistant and ordered to prepare a report.
27. PW.16 M.A.Ansari, Sub-Divisional Engineer of BSNL has stated that he gave particulars of SIM by attesting the application copy as per Ex.P.31 to 33. PW.18 S.N.Siddaramappa, Superintendent of Police has stated about furnishing service particulars and work allotment of accused No.1 as per Ex.P.47 and 48. PW.19 Mohammed Ghouse has stated that he was owner and driver of lorry No.KA.25.B.5022 32 Spl.C.No.152/2012 and when he was driving the said lorry, accused no.2 had intercepted stating that it is a stolen one and took him and lorry to Kengeri Police station and when he approached accused No.1 he had demanded Rs.50,000/- for release of lorry and he paid Rs.15,000/- to accused No.2 and got released the lorry. In the cross-examination he has stated that person who stopped his vehicle was not in uniform and admitted that he had seen the said person for the first time on that day.
28. PW.17 S.T. Yogesh is the Investigating Officer who has stated that on 24.11.2011 Superintendent of Police, Karnataka Lokayukta has called him and introduced CW.1 and CW.4 and directed him to investigate on their complaint and has state that he gave them a digital voice recorder to record the conversation with the accused and mentioned the same in the station house dairy as per Ex.P.17 (This document is subsequently remarked as Ex.P.55). He has stated that about registering of case on 26.11.2011 in Cr.No.59/2011 and about 33 Spl.C.No.152/2012 pre-trap proceedings and preparing pre-trap mahazar. He has stated that after the pre-trap proceedings they left the Lokayukta office and went in two vans and a two wheeler and Police Inspector, Sanjeevarayappa was also with them and he sent him to Kengeri Police station to ascertain the presence of accused No.1. He has stated the further events as stated by PW2 and panch witnesses and stated about PW2 going in the car driven by accused No2 and giving signal after getting down from the car and chasing the car unsuccessfully and procedure followed in trap proceedings and also drawing Trap Mahazar and also arresting of Accused and subsequent seizing of car and swiping the dash board of the car and other acts done in the course of investigation. He has also stated that he has taken steps to secure details of Accused No.2 from Ankola Police station, which shown that accused No2 is involved in many crimes and was working as driver of Accused No.1 in his personal car. He has also stated about filing charge sheet and has identified the material objects. On behalf of the 34 Spl.C.No.152/2012 prosecution documents are marked as per Ex.P.1 to 55. Ex.D.1 and 2 are marked for the accused.
29. In order to prove the guilt of accused No.1, prosecution have to prove that accused No.1 being a public servant demanded and accepted the illegal gratification and said acceptance and demand of the Illegal gratification must be for doing official act or doing any favour to the complainant. If the prosecution establish these two factors then the accused No.1 can be held as guilty for the offences under Sec.7, 13 (1)(d) of Prevention of Corruption Act. If the prosecution succeeds in proving the commission of offence under Sec.7 and 13 of Prevention of Corruption Act and proves that the accused No.2 has accepted the illegal gratification amount on behalf of accused No.1 from the complainant and after receiving the amount he has escaped and abandoned the car and destroyed the evidence and he has misappropriated the amount, then the accused No.2 can be held guilty for the offences alleged against 35 Spl.C.No.152/2012 him under the Provisions of Prevention of Corruption Act and also under Indian Penal Code. Though there is benefit of presumption Sec.20 is available to the prosecution, it can be raised and onus can be shifted on the accused, only when the prosecution discharges its initial burden of proving that the accused has accepted or obtained illegal gratification other than legal remuneration from the complainant. Therefore, demand and acceptance of gratification amount other than legal remuneration is necessary to be established by the prosecution in the first stage.
30. There is no dispute that the accused No.1 was a public servant, working as Police Inspector in Kengeri Police station as on the date of alleged demand and acceptance of illegal gratification. It is also not in dispute that the two Lorries of the complainant and his father bearing No.MH.09.L.8783 and KA.28.A.1896 were brought to the Police station and were stopped there. According to the prosecution, 36 Spl.C.No.152/2012 accused No.2 has stopped the first lorry and has brought it to the Police station and then enquired about other lorries and has colleted the documents of two lorries bearing Nos.KA.28.7765 and MH.09.Q.6476 and thereafter the 4th lorry bearing No.KA.28.A.1896 was brought and parked in the Police station and complainant approached the accused No.1 and accused No.2 for release of the lorries. It is contended by the prosecution that the accused No.1 by stating that he will seize 2nd and 3rd lorries has demanded bribe of Rs.1 lakh in respect of each lorry and release of two lorries which are in the Police station were promised to be considered later. Therefore, as per the complaint Ex.P.2 and also the evidence of PW.2 the bribe of Rs.1 Lakh each is demanded for not seizing second and third Lorries. In respect of the first and fourth lorry, Kengeri police appears to have submitted report to the Court and PW.2 in his cross-examination has clearly stated that he got released those vehicles subsequently. Even copy of the seizure panchanama produced at Ex.P.27 show that Lorry 37 Spl.C.No.152/2012 Nos.MH.09.L.8783 and KA.28.A.1896 were seized on 17.11.2011 infront of Amruth Distilleries Factory in the presence of the panchas between 12 to 2 p.m., in connection with Cr.No.241/2011 for the offence under Sec.379 of IPC and it also show that it is seen by the Court on 22.11.2011.. Therefore, even as per prosecution papers, on 17.11.2011 itself Lorry No.MH.09.L.8783 and KA.28.A.1896 were seized in Cr.No.241/2011. Since present complaint, Ex.P.2 is filed on 26.11.2011, before that 2 lorries were legally seized on 17.11.2011 by following procedure and is reported to Court. Hence it cannot be said that these two Lorries were illegally detained by Accused No. 1 in the Police station. Since Seizure of two Lorries was already reported to the Court, there was no work or favour to be done by Accused No.1 in respect of those two Lorries.
31. According to the complainant for not seizing other two Lorries the accused No.1 had demanded the bribe of Rs.1 38 Spl.C.No.152/2012 Lakh each. As per the complaint and evidence of PW2, many times he met accused No.1 and 2 and on 21.11.2011 in the evening, when PW2 met Accused NO.1 in the Police station, he demanded Rs.1 Lakh for each Lorry and the said conversation is said to have been recorded in the mobile. Therefore, according to him, though his two Lorries were seized on 17.11.2011 and PW2 was approaching accused No.1 and Police station for release of those vehicles, on 21.11.2011 for the first time bribe is demanded, not for releasing the seized vehicles but for not seizing two Lorries. PW2 and 5 have stated that thereafter on 23.11.2011 again there was demand for illegal gratification and request to reduce the same to Rs.50,000/- is not accepted and this conversation is recorded in Spy camera. As per the prosecution case, again on 24.11.2011, PW2 met accused No.2 alongwith voice recorder given by Lokayukta Police and accused No.2 asked PW2 to bring Rs.1,25,000/- and in respect of two seized vehicles and told that he will make arrangements of release through the Court and that thereafter 39 Spl.C.No.152/2012 he met the accused No.1, who asked him to contact accused No.2 and this conversation is stated to have been recorded. PW5, in his evidence has stated that complainant informed him that accused No.1 is demanding money for release of two Lorries. He has not stated anything about demand of bribe by accused No.1 for not seizing the two Lorries. As stated above, in respect of two seized Lorries, there was no work or favour that could be done by Accused No1, as seizure of the Lorries in Crime No.. 241/2011 was already intimated to court and it was to be got released legally by the claimant. Therefore, evidence of PW5 is not of much to the prosecution to prove demand of illegal gratification by accused No.1 for releasing two Lorries or for not seizing the other two Lorries. Even as per Prosecution case, other than PW5, no other witness has personally seen or heard the accused No1 demanding bribe from PW2.
32. The conversation containing demand of bribe by Accused No.1 and 2 from PW.2, on 21.11.2011, 23.11.2011 40 Spl.C.No.152/2012 and on 25.11.2011 is said to have been recorded in Mobile of PW2, Spy Camera of PW5 and Voice Recorder given by Investigating Officer to complainant on respective dates. The CD stated to be containing visuals and audio conversation with accused recorded in Mobile, Spy camera and Voice Recorder are marked as MO.1, 3, 9 and 11. The original instruments like Mobile, spy camera or Voice recorder in which these conversations are originally recorded are not seized and not produced before the court. CD's which are produced as Material Objects are stated to be transmitted versions from the original instrument. On behalf of the prosecution even the transcription from the CD are also taken and they are marked as Ex.P.8, P-9 and P-37. All these CDs and transcriptions would be secondary evidence of Electronic records. There is no certificate under Sec.65-B of the Indian Evidence Act produced before the court.
41 Spl.C.No.152/2012
33. As per the decision of Hon'ble Supreme Court relied by learned counsel for accused, which is reported in 2015 (1) SCC (Cri) 24 = (2014) 10 SCC 473 Anwar P.V. Vs P.K. Basheer and others, when the secondary evidence of the electronic records 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. In this case the prosecution has produced only the CD and the alleged transcription which are secondary evidence of the electronic records and the primary evidence is not produced before the court. Therefore, these CD's produced as material objects and transcriptions produced by the prosecution are not admissible in evidence and they do not help the prosecution to prove the alleged demand of bribe by the accused. Even other CDs and transcriptions produced and marked for the prosecution are not admissible and are not of any help in this case. 42 Spl.C.No.152/2012
34. Under such circumstances, only evidence available to prove the demand of Bribe by Accused is evidence of complainant PW2. PW.2 is not definite as to why illegal gratification amount is demanded by the accused No.1. In respect of two seized vehicles, no work of accused No.1 was pending. The contention of PW.2 that for not seizing the two Lorries the bribe was demanded by accused No.1 is not convincing and not acceptable in the absence of any other supporting evidence. Even while proceeding in the car with Accused No.2, PW2 has not taken Shadow witness PW.3 with him. The evidence of police officials of Kengeri Police Station also affirms that in Crime No 241/2011, two Lorries were seized and Mahazar is drawn on 17.11.2011. Even PW.2 has stated that even he was taken before the ACP who had asked him to follow the instructions of the accused No.1. Though, it is stated that for not seizing the other two vehicles accused No.1 demanded the bribe amount, there is no convincing evidence to prove the same. As regards the two vehicles which were not 43 Spl.C.No.152/2012 seized, there was no any complaint pending before Police and even though the complainant has shown those two lorries, they have only verify the records, but have not seized those Lorries and only Lorries suspected to have been involved in Crime No.241/2011 are seized.
35. The learned counsel has also relied on the decision reported in 2012 (1) KCCR 414 R.Malini Vs State of Karnataka it is held that "when the certificate was kept ready much before lodging of the complaint the question of accused demanding bribe amount for doing any work does not arise as no work was pending at the time of lodging the complaint". He has also relied on another decision reported in 2016 Crl.L.J.3066 R.Shrinivasan Vs State by Police Inspector, Lokayukta Police station, wherein the Hon'ble High Court has held that the Capacity to do, official favour in order to demand bribe is very essential for the offence under Sec.7 of Prevention of Corruption Act.
44 Spl.C.No.152/2012
36. In the present case also with regard to the two Lorries which were seized proper procedure is already followed and it was even informed to the court and there was nothing to be done by the Accused No.1. As regards the other two lorries which were not seized there was no work in respect of those lorries were pending with the accused No.1. Therefore, as rightly argued by the learned counsel for accused there was no work of the complainant was pending with accused at the time of lodging a complaint on 26.11.2011. On looking to the entire records, the prosecution has failed to prove the demand of gratification amount other than legal remuneration by accused No.1 or by Accused No.2 on behalf of accused No.1, for doing any official act or official favour to the complainant. Pendency of any official act of complainant with accused no.1 itself is not made out and demand of illegal gratification made by accused, for doing such official act is not established in this case. 45 Spl.C.No.152/2012
37. The next point is acceptance of the gratification amount by the accused No.1 through accused No.2. According to the prosecution case, accused No.2 had asked the complainant to bring Rs.1,25,000/- and promised that he will talk to accused No.1 and make arrangement for release of two seized Lorries. According to the complainant even when he met the accused No.1 on 25.11.2011, the accused No.1 asked him to contact accused No.2. Thereafter, the complainant gave complaint to the Lokayukta police on 26.11.2011 and after following the trap procedures, trap team proceeded towards Kengeri Police station. According to the evidence of PW.2, 3 and 4 and also the Investigating Officer-PW.17, on the way, PW.2 received a phone call from accused No.2 and he asked him to come near Kengeri Police station and accordingly PW.2 along with shadow witness-PW.3 came in the motor cycle and PW.3 was standing near PW.2 infront of Bakery and accused No.2 came in black car and he talked to complainant and then both of them went towards Srinidhi hotel on Mysuru road and 46 Spl.C.No.152/2012 thereafter car came back towards Kengeri Police station. As per the pre-trap mahazar and evidence of PW.17, 2, 3, and 4, PW.3 was shadow witness and was required to accompany the complainant when he meets the accused. Admittedly, PW3 has not accompanied PW.2 in the Car. PW.3 has stated that as PW.2 has not introduced him to accused No.2, he could not board the car with PW.2. Even the PW.2 in his evidence has stated that he alone entered the car and proceeded towards Srinidhi hotel with Accused No.2. According to the prosecution, the tainted notes were given to Accused No.2 in the Black Car. Therefore, PW2 was alone with accused No.2, when he is stated to have given the tainted notes to Accused No.2. Hence, evidence of Shadow witness has lost its importance and is not helpful to prove the acceptance of tainted notes by Accused No.2. Why PW.3 has not accompanied PW.2 inspite of specific instructions given at the time of pre-trap mahazar is not explained. PW.2 has stated that accused No.2 after receiving the tainted notes, has kept it in dash board of the 47 Spl.C.No.152/2012 Car. For entire incidents of acceptance of the amount by Accused No.2, on the say of Accused No.1 and keeping the notes in the dash board of the Car, except say of complainant- PW.2, there is no other evidence before the court.
38. Immediately after complainant alighting from the car near the Kengeri Police station the complainant is said to have given signal and then the Lokayukta Police Inspector came and tried to stop the car and at that time accused No.2 drove the car in high speed and even though the car was followed by trap team and PW.7 it could not be chased. It is stated that, when PW.7 made attempts to stop the car in the signal, accused No.2 has not stopped the car and dashed to the motor cycle of PW.7, for which another case is registered against accused No.2 as per Ex.P.28-FIR. Though the trap team had made all arrangements to trap the accused while receiving the amount, according to the prosecution, inspite of all efforts, though Accused no.2 received the amount, he could 48 Spl.C.No.152/2012 not be caught. Therefore, even the hand wash of accused No.2 could not be done to ascertain whether the tainted notes were received by him. Even subsequently though the car was seized by Kengeri Police and then informed to the Lokayukta police and they came and searched the Car, the tainted notes were not found. Tainted notes are not seized in this case. Though it is stated that the dash board in which, according to the complainant, accused No.2 had kept the tainted notes was swiped by cotton and the cotton turned to pink colour when it was immersed in the sodium carbonate solution, the other evidence show that in the dash board there were some other records which were already taken out by the Kengeri Police when they have found the vehicle. Under such circumstance, the swiped Cotton of the dash board of the Car turning into pink colour does not connect the missing links in the prosecution case. Except say of PW.2- complainant, there is no supporting evidence to show that accused No.2 has received the tainted notes and then kept it in the dash board of the Car. 49 Spl.C.No.152/2012 There is also no evidence to show that accused No.2 has received these tainted notes on behalf of accused No.1 as contended in the case.
39. Though PW.3 and 4 who are the independent panch witnesses have stated about the pre-trap proceedings and also drawing of trap mahazar and subsequent mahazars including seizure of the Car, arrest of the accused etc., main requirement of demand and acceptance of bribe amount of Rs.1,25,000/- by the accused is not proved in this case. Since none of these witnesses have seen the complainant paying this amount to accused No.2 and accused No.2 receiving the said notes while driving the car and then keeping it in the dash board, the evidence of these witnesses will not help the prosecution in proving the acceptance of the tainted notes by the accused No.2. Moreover, PW.4 has denied the swiping of dash board of the Car by cotton and then immersing the Cotton in the solution and also denied that he has given statement as per 50 Spl.C.No.152/2012 Ex.P.24. Looking from any angle, acceptance of tainted notes by accused No.2 itself is not established in this case.
40. Apart from this, since the amount is stated to have been given by PW.2 to accused No.2 who is a private person and accused No.2 is said to have received this amount on behalf of accused No.1, the nexus between accused Nos.1 and 2 is also to be proved by the prosecution. The prosecution has led the evidence of almost all the police officials of the Kengeri Police station who are, PW.8-Shivaswamy H, PW.9- E.R.Ranganath, PW.10-N.Shashikala, PW.11-Mallikarjuna N.C, PW.12 Doddamuthaiah, PW.13-Shivanna, PW.14-M.Somanna, PW.15-Beerappa R.Kannal. All these witnesses were police officials working in Kengeri Police station at the relevant point of time. Among these PW.8 to 15, PW.13 Shivanna is said to have gone to unload the lorry bearing No.MH.09.8783 as per instructions of accused No.1 on 09.11.2011, with accused No.2 and PW.14 is said to have accompanied accused No.1 along 51 Spl.C.No.152/2012 with accused No.2 to on 15.11.2011 to Excise Depot at Hosur road in connection with a lorry belonging to pending case. PW.15 has stated that he was told by accused No.1 that informant by name Ganesh is coming there. However the other witnesses PW.8, 9 & 10 have not stated about accused No.2. Therefore, the evidence of PW.8 to 15 does not help the prosecution to prove that there was nexus between accused No.1 and 2 and accused No.2 was working either as informant or as driver of accused No.1 or was working as agent of accused No.1. PW.6 Police Inspector, Ankola Police station, in which MOB register is said to have been maintained in respect of accused No.2 has stated in his evidence that when he enquired accused No.2, he has informed him that he is working as driver of private vehicle of accused no.1 bearing No.KA.30.M.3130, on monthly salary of Rs.20,000/-. This evidence of PW.6 standing alone does not prove that accused No.2 is Private Driver of accused No.1. Though there are documents produced at Ex.P.25 to show that in respect of 52 Spl.C.No.152/2012 accused No.2 , MOB file is maintained in Ankola Police station and accused No.1 is also stated to be from Ankola, the nexus between the two do not get established and registering of some other cases against accused No.2 in Ankola, Sirsi etc., does not prove his guilt in this case. Moreover, there is no evidence to show that accused No.1 has asked accused no.2 to receive the illegal gratification amount of Rs.1,25,000/- from the complainant.
41. As discussed above, demand of bribe amount by the accused no.1 itself is not established. Even the receipt of Rs.1,25,000/- by the accused No.2 is not established. The contention of the prosecution that accused No.2 has received Rs.1,25,000/- on behalf of accused No.1 from the complainant in the moving car on 26.11.2011 and then escaped in the car and has dashed to the motor cycle of PW.7 and thereafter he has caused disappearance of evidence and also utilized said tainted notes etc., are not established beyond reasonable 53 Spl.C.No.152/2012 doubt. Prosecution has failed to prove the demand and acceptance of the gratification other than legal remuneration by the accused No.1 through accused No.2. When the prosecution has failed to discharge initial burden of proving the receipt of the gratification amount, even presumption under Sec.20 of the Prevention of Corruption Act is not available to the prosecution. The prosecution has failed to prove demand and acceptance of the illegal gratification by the accused No.1 and also by accused No.2 on behalf of accused No.1. Pendency of any official work or possibility of doing any official favour to the complainant by the accused No.1 is also not established. Therefore, commission of offence under Sec.7 and Sec.13 (1)(d) of the Prevention of Corruption Act by the accused No.1 is not proved beyond reasonable doubt in this case. The accused No.2 is a private person he is charged for the offence under Sec.8 and 10 of Prevention of Corruption Act and Sec.201 and 403 of IPC. Since the demand and acceptance of the illegal gratification by the accused No.1 is not proved, even offences alleged against 54 Spl.C.No.152/2012 accused No.2 are not proved and there is no evidence before the court to prove that the accused No.2 has received the gratification amount to influence or induce accused No.1 as contended. Since receipt of amount by accused No.2 from complainant is not established, commission of offence under Sec.8 and 10 is also not proved. For the same reasons, commission of further offences alleged against accused No.2 regarding disappearance of evidence or giving false information or dishonest misappropriation of amount are also not proved.
42. Learned Counsel for the accused No1 has cited decision reported in 2016 Crl.L.J.482 Christy Fried Gram Industries Vs State of Karnataka and others in which in para No.47 the Hon'ble High Court has held that "Sec.17 of Prevention of Corruption Act permits the police official to investigate the offences punishable only under Prevention of Corruption Act. For investigating other offences i.e. IPC offences, the police officials are 55 Spl.C.No.152/2012 mandated to obtain permission from the Special Judge. This procedure has not been followed in this case which clearly establishes that without the orders of the Special Judge, the police officers investigated the other offences, which is illegal and gross violation of law " In the present case offences under Sec. 201 and 403 of IPC are also alleged against accused. On the basis of this decision it is argued that the charge sheet filed for the IPC offences are illegal.
43. In another decision reported in 2012(3) KCCR 1738 Sri. Ramesh desai and another Vs State of Karnataka by Raichur Lokayukta police Hon'ble High Court has held that Investigating Officer should act as impartial and independent investigating agency and should not associate himself and assist the complainant, given tape recorder to record conversation with regard to demand of bribe does not constitute preliminary enquiry, rather it amount to collecting 56 Spl.C.No.152/2012 the evidence against in person accused of. In the present case, on 24.11.2011 complainant is said to have visited the Lokayukta police and PW.17 has stated that he has given voice recorder to the complainant to record conversation with accused and this assisting the complainant to record conversation with regard to demand of bribe is argued as collecting the evidence and it is argued that investigating agency has not acted impartially.
44. In the decision reported in (2000) 5 SCC 21 Meena W/o Balawant Hemke Vs State of Maharastra in which Hon'ble Supreme Court has held that the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent till it is established otherwise, by proper proof of acceptance of the illegal gratification.
45. The learned counsel has also relied on the decision reported in IV (2015)CCR 57 (SC). P.Shathayanarayana Murthy Vs District Inspector of Police and another in 57 Spl.C.No.152/2012 which Hon'ble Supreme Court has held that "mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence under Section 7 as well as Sec. 13(1)(d) of Prevention of Corruption Act. Proof of demand of illegal gratification is gravemen of offence under Sec.7 and 13 (1)(d) and in the absence of threat and demand thereof, charge would fail mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand would not be sufficient to bring home charge". In the present case neither the demand nor the acceptance are proved and even amount is not recovered.
46. The learned counsel has also relied on the decision reported in 1(2001)CCR 343 (SC) M.Abbas Vs State of Kerala, the Hon'ble Supreme Court held that between may be true and must be true there is a long distance to travel and when the prosecution has failed to travel that distance through any unimpeachable evidence, the case of the prosecution does not get proved.
58 Spl.C.No.152/2012
47. On going through all these decisions and the ratio laid down in these decisions and on considering the facts of the present case and the evidence that has been led before the court, the demand of illegal gratification by the accused No.1, acceptance of illegal gratification by the accused No.2 on behalf of Accused No.1 are not proved by the prosecution beyond reasonable doubt. The charge against the accused No.1 and 2 are not proved and the accused are entitled to be acquitted. Accordingly, Point No.2 to 6 are answered in the negative.
48. Point No.7: For the discussion and findings on Point Nos. 1 to 6, accused Nos.1 and 2 are to be acquitted. Hence, following order is passed:
ORDER Accused Nos.1 and 2 are found not guilty. Acting u/s 235(1) of Cr.P.C. accused No.1 is acquitted from the charges levelled against him for the offences punishable under 59 Spl.C.No.152/2012 Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and accused No.2 is acquitted from the charges levelled against him for the offences punishable under Sections 8 and 10 of the Prevention of Corruption Act, 1988 and under Sec.201 and 403 of IPC.
The bail bond executed by accused Nos.1 and 2 and their sureties stands cancelled. M.Os 1 to 19 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 17th day of November 2017) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Lalrokhumapachuau
PW.2 Arshad Shariff
PW.3 Chandranna K
PW.4 Krishnamurthy N
60 Spl.C.No.152/2012
PW.5 Abdul Razak Rafi Parveez
PW.6 Shivananda Hanumanthappa
Chalawadi
PW.7 Venkatesh C
PW.8 Shivaswamy H
PW.9 E.R.Ranganath
PW.10 N.Shashikala
PW.11 Mallikarjuna N.C.
PW.12 Doddamuthaiah
PW.13 Shivanna
PW.14 M.Somanna
PW.15 Beerappa R.Kannal
PW.16 M.A.Ansari
PW.17 S.T.Yogesh
PW.18 S.N. Siddaramappa
PW.19 Mohammed Ghouse
List of documents exhibited for the prosecution:
Ex.P.1 Prosecution Sanction order P.1(a) signature of PW.1 Ex.P.2 Complaint dtd.26.11.2011 Ex.P.3 Currency details sheet P.3(a)to(c) Signature of PW.2 Ex.P.4 Pre-trap Mahazar (9 sheets) P.4(a)to(i) Signature of PW.2 P.4(j)to(r) Signature of PW.3 P.4(s)to(z),4(aa) Signature of PW.4 P.4(b) Signature of PW.17 Ex.P.5 Trap Mahazar (13 sheets) P.5(a)to3(m) Signature of PW.2 P.5(n)to5(z) Signature of PW.3 P.5(aa)to(mm) Signature of PW.4 P.5(nn) Signature of PW.17 Ex.P.6 Statement of Accused No.2 P.6(a) Signature of PW.2 P.6(b) Signature of PW.3 P.6(c) Signature of PW.4 61 Spl.C.No.152/2012 P.6(d) Portion of statement of A.2 Ex.P.7 Another statement of A.2 P.7(a) Signature of PW.2 P.7(b) Signature of PW.3 P.7(c) Signature of PW.4 Ex.P.8 Voice recorder transcription P.8(a)&(b) Signature of PW.2 P.8(c)&(d) Signature of PW.3 Ex.P.9 Voice recording of A.1 and 2 at trap time P.9(a)to(g) Signature of PW.2 P.9(h)to(l) Statement of PW.3 P.9(m) to 9(o) Signature of PW.17 Ex.P.10 Mahazar dtd.07.12.2011 P.10(a) Signature of PW.2 P.10(b)to(e) Signature of PW.3 P.10(f)to(i) Signature of PW.4 P.10(j) Signature of PW.17 Ex.P.11 Mahazar dtd.22.02.2012 P.11(a)to(d) Signature of PW.2 P.11(e)to(h) Signature of PW.3 Ex.P.12 Explanation of accused No.1 P.12(a)&(b) Signature of PW.3 P.12(c)&(d) Signature of PW.4 Ex.P.13 Sketch P.13(a) Signature of PW.13 P.13(b) Signature of PW.4 P.13(c) Signature of PW.17 Ex.P.14 Photo of Srinidhi Sagar Ex.P.15 to P.22 Car photos (8) Ex.P.23 Mahazar dtd.29.11.2011 P.23(a)to(c) Signature of PW.4 P.23(d) Signature of PW.17 Ex.P.24 Portion of the statement of PW.4 Ex.P.25 Copies of documents of A.2 P.25(a)to(b) Signature of PW.6 Ex.P.26 Covering letter issued by PW.6 P.26(a) Signature of PW.6 62 Spl.C.No.152/2012 Ex.P.27 Xerox copy of mahazar dtd.17.11.2011 Ex.P.28 Copy of FIR and its enclosures Ex.P.29 Portion of the statement of PW.11 Ex.P.30 Extract of prison search registrar Ex.P.31 Attested application copy Ex.P.33 Details of letter P.33(a) Signature of PW.16 Ex.P.32 Address proof Signature of PW.16 Ex.P.33 Extract of SHD Ex.P.34 FIR P.34(a) Signature of PW.17 P.34(b) Signature of PW.2 Ex.P.35 Statement of CW.5 Ex.P.36 Report of CW.11 Ex.P.37 Transcription of article No.7 CD P.37(a) Signature of PW.17 Ex.P.38 Fax from Forest department Ex.P.39 CDR of A.1,A.2, complainant & Investigating Officer Ex.P.40 Certificate and its enclosures from BSNL Ex.P.41 Nominal Roll Ex.P.42 & P.43 Arrival Register Extracts P.43(a)&(b) Relevant entry in Ex.P.43 Ex.P.44 Letter dtd.19.09.2012 along with its enclosures Ex.P.45 B register extract and letter Letter received from CW.40 Ex.P.46 Letter dtd.16.12.2000 Ex.P.47 Service particulars of A.1 Ex.P.48 Chemical Examination Report Ex.P.49 Statement of witnesses by name Ex.P.50 to 54 Arshad Shariff etc., Ex.P.55 Extract of SHD 63 Spl.C.No.152/2012
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
Ex.D.1 Portion of the statement of PW.5
Ex.D.2 Copy of mahazar
Material Objects marked by Prosecution :
MO-1 CD containing visuals of accused.
MO-2 Cover containing MO-1
MO-3 CD of recordings in voice recorder
MO-4 Cover containing MO-3
MO-5 Bottle containing sample solution
MO-6 Hand wash of PW.4
MO-7 C.D. containing visuals
MO-8 Cover containing MO-7
MO-9 CD containing the audio and video
MO-10 Cover containing MO-9
MO-11 C.D. containing the conversation
MO-12 Cover containing MO-11
MO.13 CD containing visuals of trap
proceedings
MO-14 Cover containing MO.13
MO-15 Bottle containing sample solution
MO-16 CD containing the visuals of
proceedings
MO-17 Cotton used for swiping dash board
of car
MO-18 CD containing the visuals
MO-19 Cover containing MO-18
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
64 Spl.C.No.152/2012
Orders pronounced in the open Court
vide separate Judgment :
ORDER
Accused Nos.1 and 2 are found not guilty.
Acting u/s 235(1) of Cr.P.C. accused No.1 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 and accused No.2 is acquitted from the charges levelled against him for the offences punishable under Sections 8 and 10 of the Prevention of Corruption Act, 1988 and under Sec.201 and 403 of IPC.
The bail bond executed by accused Nos.1 and 2 and their sureties stands cancelled.
M.Os 1 to 19 are ordered to be destroyed after the expiry of appeal period, as are worthless.
LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.65 Spl.C.No.152/2012