Bangalore District Court
State Of Karnataka vs S.V.Jagannathreddy on 27 October, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE (P.C.A.), BENGALURU (C.C.H.No.79)
Present: Sri.Ravindra Hegde, M.A., LL.M.,
LXXVIII Addl. City Civil & Sessions Judge
& Special Judge (P.C.A.), Bengaluru.
Dated: This the 27th day of October, 2018
Special C.C. No.154/2010
Complainant: State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: S.V.Jagannathreddy,
s/o.late S.Venkatareddy, 48 years,
Forest Guard, Office of the Forest
Officer, Bengaluru Zone,
18th Cross, Kaadu Malleshwara,
B.W.S.S.B. Road, Malleshwaram,
Bengaluru-55,
R/at No.25A, Abhishek Nilaya,
Indian Express Layout, Kodigehalli,
Bengaluru.
(By Sri.C.G.Sunder, Advocate)
Date of commission of 31-10-2009 & 15-12-2009
offence
Date of report of occurrence 15-12-2009
Date of arrest of accused 18-12-2009
Date of release of accused on 24-12-2009
bail
Date of commencement of 02-01-2018
evidence
Date of closing of evidence 27-09-2018
Name of the complainant Gopinath
Offences complained of Under Sections 7, 13(1)(d),
15 r/w/s 13(2) of Prevention
of Corruption Act
Opinion of the Judge Acquitted
2 Spl.C.C.154/2010
Date of Judgment 27-10-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against Accused for the offences punishable under Sections 7, 15, 13 (1)(d), read with Section 13(2) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case is as under:
Accused-S.V. Jagannath Reddy is Forest Guard in the Office of Range Forest Officer, Bengaluru Zone, 18 th Cross, Malleshwaram, Bengaluru and is a public servant. Complainant-Gopinath has given a complaint to Lokayukta Police on 15-12-2009 stating that in August 2009, when his mother was not in good health, someone advised him to worship Worm-snake and by spending Rs.5,000/- he started pooja of the same and in spite of that his mother died and then he left the snake in an open space and some neighbors have informed the Forest Department about the same. The Range Forest Officer-Govindaraju has sent his Assistant Ravi and another to his hotel, by name 'Chicken Hut' in Vyalikaval, who took him to Forest Dept Office in Malleshwaram on 31-10- 2009 and he was enquired and he informed that now he has not kept snake in his house. Still, Forest Officials have threatened him stating that they will file a case against him
3 Spl.C.C.154/2010 and asked him to pay Rs.5-lakhs and then they brought it down to Rs.2-lakhs and then to Rs.50,000/- and complainant agreed to give Rs.10,000/-. A staff in the Forest Office, who has talked to complainant in the office, has taken Rs.5,000/- from complainant and asked him to bring Rs.10,000/- on 02- 11-2009 and taken a letter from him. When complainant has not paid the amount, he was called many times by phone and demand was made for bribe. Complainant recorded the conversation with person who had demanded bribe and then transmitted to C.D. and as person who demanded bribe was telling his name differently at different times, he was not aware of the name of that person, but he was working in Forest Department. Complaint was given against Range Forest Officer-Govindaraju and his subordinate staff who has demanded the bribe, along with C.D. containing conversation with person talked to complainant. On receiving complaint, Lokayukta Police have registered the case in Crime No.79/2009 and submitted FIR to Court. Lokayukta Police Inspector secured panchas and made all arrangement for trap. Since person who demanded bribe has informed that he is not available on that day, trap was postponed to 16-12- 2009. On 16-12-2009, trap could not take place, as accused informed that he is in hurry and asked him to come to Central Office at 6.00 p.m. and to give amount to Ravi, whose details were not known. On 17-12-2009, again trap attempt was made and accused came to the hotel and talked to 4 Spl.C.C.154/2010 complainant and by seeing button camera, fixed to his shirt, he became suspicious and then left the place and therefore trap attempt has failed. Thereafter, accused was secured in Lokayukta Office and Lokayukta Police Inspector continued investigation. In the investigation it was found that accused was the person who had demanded bribe from complainant. Accused was arrested and then was released on bail. After completion of investigation, Investigating Officer prepared final report and after obtaining Prosecution Sanction Order, submitted charge sheet.
3. Cognizance of offences is taken by this Court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to Accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against Accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case, P.Ws.1 to 5 are examined. Exs.P1 to P36 are marked. M.O.1 to 11 are also marked.
5. After completion of prosecution evidence, statement of Accused, as required under Section 313 of Cr.P.C. is recorded. Accused has denied incriminating evidence appearing against him. Accused has not chosen to lead any defence evidence on his behalf.
6. Heard the arguments and perused the records.
5 Spl.C.C.154/2010
7. Now, Points that arise for my consideration are:-
1) Whether the Prosecution proves beyond all reasonable doubt that, Accused being public servant, working as Forest Guard in the Office of RFO, Bengaluru Zone, has, on 31-10-2009 came to Chicken Hut Hotel of complainant along with another official-Ravi and took him to Forest Office in the guise of enquiry about worm-snake kept by complainant in his house and threatened complainant and demanded bribe of Rs.5-lakhs for not sending him to jail by registering case and then brought it down and took Rs.5,000/- from complainant and asked complainant to pay another Rs.10,000/-
and on 02-11-2009 and thereafter, he again made phone calls to complainant and continued his demand for bribe of Rs.10,000/- and then, on 16-12-2009 when he met complainant, he again demanded bribe and on 17-12-2009, at 2.35 p.m. in Chicken Hut Hotel of complainant, he has attempted to receive tainted notes of Rs.10,000/- as bribe from complainant and by demanding and attempting to receive illegal gratification as a motive or reward to do official act or official favour to complainant, has committed an offence punishable under Section 7 of Prevention of Corruption Act?
2) Whether the prosecution further proves beyond all reasonable doubt that Accused being public servant working as Forest Guard in the Office of RFO, Bengaluru Zone, has, on 31-10-2009 came to Chicken Hut Hotel of complainant along with another official-Ravi and took him to Forest Office in the guise of enquiry about worm-snake kept by 6 Spl.C.C.154/2010 complainant in his house and threatened complainant and demanded bribe and took Rs.5,000/- from complainant and thereafter continued his demand for illegal gratification of Rs.10,000/- and then on 17-12-2009 he came to Chicken Hut Hotel at about 2.35 p.m. to receive further bribe from complainant and by receiving pecuniary advantage of Rs.5,000/- on 31-10-2009 without any public interest, by corrupt or illegal means or by abusing his position as public servant he has committed criminal misconduct under Section 13(1)(d) of Prevention of Corruption Act, punishable under Section 13(2) of Prevention of Corruption Act?
3) Whether the Prosecution further proves beyond all reasonable doubt that, Accused being public servant, working as Forest Guard in the Office of RFO, Bengaluru Zone has, on 17-12-2009, at 2.35 p.m. in Chicken Hut Hotel of complainant has attempted to receive pecuniary advantage of Rs.10,000/- from complainant without any public interest and attempted to commit offence u/s 13(1)(d) of Prevention of Corruption Act and thereby committed offence under Section 15 of Prevention of Corruption Act ?
4) What Order?
8. My findings on the above Points are:-
Point No.1 : In the Negative, Point No.2 : In the Negative, Point No.3 : In the Negative, Point No.4 : As per Final Order, for following:
7 Spl.C.C.154/2010 REASONS
9. Point Nos.1 to 3 : Since these Points are inter-linked with each other, they are taken together for discussion to avoid repetition.
10. To prove the charge against Accused for offences under Sections 7, 15, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, prosecution has examined five witnesses as P.Ws.1 to P.W.5. P.W.1-P. Srinivas is a shadow witness. P.W.2- Puttaswamy is higher officer of accused, who has identified voice and visuals of accused in the recordings played before him. P.W.3-V.Govindraju is the Range Forest Officer and higher officer of accused, who has submitted details of mobile number of accused. P.W.4-Ravi.C. was Forester at the relevant time and had accompanied accused to house of complainant on 31-10-2009. P.W.5-Mohammed Irshad- Police Inspector, Karnataka Lokayukta, is Investigating Officer in this case.
11. On behalf of the prosecution, Exs.P1 to P36 are marked. Ex.26 is the complaint. F.I.R. is marked as Ex.P27. Sheet containing number of tainted notes is marked as Ex.P1. Pre-Trap Mahazar is marked as Ex.P2. Mahazar dated 16-12- 2009 is marked as Ex.P3. Attempted Trap Mahazar dated 17- 12-2009 is marked as Ex.P4. Mahazar regarding taking sample of the voice of accused is marked as Ex.P5. Ex.P6 is the Mahazar drawn for seizure of C.D. as per Article 12. The 8 Spl.C.C.154/2010 transcription of recordings in the C.D. produced by complainant while giving complaint is marked as Ex.P8. Transcriptions of recordings of the phone call in voice recorder and the recordings in voice recorder, button camera, pen camera at different stage of the case are all marked as Ex.P7 and P9 to P19. Report of P.W.2 is marked as Ex.P20. Copy of statement of complainant given before R.F.O. regarding keeping of worm-snake in the house earlier, is marked as Ex.P21. Explanation given by accused is marked as Ex.P28. Ex.P22 is the report of P.W.3, in which mobile number of accused is given and his another report is marked as Ex.P29 and statement given by him before A.C.M.M. under Section 164 of Cr.P.C. is marked as Ex.P23. Report of P.W.4 and his statement under Section 164 of Cr.P.C. before A.C.M.M. are marked as Exs.P31 and P25. Service details of accused are marked as Ex.P32. Ex.P33 is call details. Ex.P34 is work details of accused. Exs.P35 and P36 are sketch of the spot prepared by Engineer. Prosecution Sanction Order is marked as Ex.P24. Ex.P30 is the acknowledgement given for taking sample seal. M.Os.1 to 11 are also marked for the prosecution. M.Os.1 and 2 are the bottles containing solution taken at the time of Pre- Trap Mahazar. M.Os.3 to 11 are C.Ds.
12. As per the prosecution case, complainant -Gopinath gave complaint as per Ex.P26 stating that R.F.O. -Govindaraju (P.W.3) had sent P.W.4 and another person (who is subsequently identified as accused), to his hotel and he was 9 Spl.C.C.154/2010 taken to Forest Office, wherein he was enquired about keeping worm snake in his house and though complainant informed that he had already left worm-snake in open place, by stating that case will be registered against him and he will be sent to jail, officials have threatened him and demanded bribe amount and accused threatened him and took Rs.5,000/- from him and asked him to give another Rs.10,000/- for higher officer and on 02-11-2009 and thereafter, again complainant was called and demand was reiterated. The complainant recorded the conversation and transmitted it to C.D. as per M.O.9 and gave complaint. On receiving complaint, Lokayukta Police have registered case against P.W.3 and another unknown official of Forest Department. The Investigating Officer-P.W.5 secured P.W.1-P.Srinivas, C.W.3-K.N.Jagannath and introduced them to complainant and followed pre-trap procedures. Complainant produced Rs.10,000/- in denomination of Rs.1000 x 4 and 500 x 12 and number of notes were noted down as per Ex.P1 and phenolphthalein powder was applied and C.W.3 has kept the notes in left side shirt pocket of complainant and thereafter his hand wash was made and solution turned to pink colour and it was seized in bottle. The C.D. produced by complainant was played and transcribed as per Ex.P8. Complainant was instructed to meet accused in his office and to enquire about work and then to give tainted notes in case of demand and was asked to give signal to trap team by wiping hairs. Pen camera, voice 10 Spl.C.C.154/2010 recorder and button camera were given to complainant and was instructed to switch on the same while meeting accused and instructions were given to P.W.1 to act as shadow witness and to go with complainant and to observe the activities and to report later. At the time of pre-trap proceedings, on the instructions of P.W.5, complainant made a phone call to accused and he informed that he is not in office and this conversation was recorded in voice recorder and then transmitted to C.D. as per M.O.3 and was transcribed as per Ex.P9. Since accused was not available, trap was postponed to next date and Pre-trap mahazar was prepared as per Ex.P2 and signatures were taken.
13. Thereafter on 16-12-2009, again Trap Team gathered in Lokayukta Office and C.W.3 kept the tainted notes in left side shirt pocket of complainant and they proceeded towards office of accused and after parking the vehicle at a distance and reminding the instructions, complainant and P.W.1 were sent to meet accused and button camera and pen camera and voice recorder were fixed to complainant and when complainant made a phone call to accused, he asked him to come at 11.00 a.m. and thereafter, complainant and shadow witness-P.W.1 went to Forest Office and enquired about Govindaraju and they were informed that he has not come and then complainant made a phone call to Accused and he asked him to bring Ravi, who is working in the office, to Head office and without informing Ravi, they came to Head 11 Spl.C.C.154/2010 office and when contacted by phone, Accused asked them to come back and while they were coming, on the road Accused met complainant and talked to him and informed that he is in hurry and asked them to come in the evening at 6.00 p.m. Thereafter, as per the instructions, complainant made a phone call to Accused and he asked him to give amount to Ravi in the office at 2.00 p.m. As details of Ravi was not known, trap was postponed and they came back to Lokayukta Office and recordings in voice recorder were played and then transmitted to C.D. as per M.O.4 and conversation containing recordings of different phone calls and talk of complainant with Accused has been transcribed as per Exs.P10, P11, P12, P13 and P14. Contents of pen camera and button camera were also played and then transmitted to C.D. and seized as per M.O.5 and 6 and the contents were transcribed as per Ex.P15. Regarding the happenings on 16-12-2009, a mahazar was prepared as per Ex.P3 and signatures were taken.
14. It is further case of the prosecution that, on 17-12- 2009 again Trap Team gathered in Lokayukta Office at 10.00 a.m. and complainant made a phone call to Accused and he informed that he is on leave for one week and asked complainant to give amount in the hands of Ravi and as complainant refused to give the amount to Ravi, he told that he will call later and thereafter complainant again made a phone call to accused and he told that he will send Ravi to hotel at 1.00 p.m. and asked him to give amount and this 12 Spl.C.C.154/2010 conversation was recorded in voice recorder, which was transmitted to C.D. as per M.O.7 and was transcribed as per Exs.P16 and P17. Again phenolphthalein powder was smeared on the notes and C.W.3 has kept the tainted notes in right side Shirt pocket of complainant and by reminding the instructions, they went near Chicken Hut hotel and parked the vehicle at a distance and complainant and P.W.1 were sent to Chicken Hut hotel and others were waiting. As Ravi has not come to that hotel, complainant made a phone call to Accused at 2.25 p.m. and Accused informed that he will come in half an hour and then at 2.35 p.m. Accused came in a two wheeler and talked to complainant and then came out along with complainant and sat on a chair and enquired about P.W.1, who was with him and then by seeing button camera, which was fixed to the shirt of complainant, he became suspicious and by telling that he will bring another person, has left the place and thereby, trap attempt has failed. Thereafter, Trap Team went back to Lokayukta Office wherein pen camera, button camera and voice recorder was played and it was found that nothing was recorded in button camera, as it was not working and recordings in pen camera was transmitted to C.D. and seized as per M.O.8 and its contents were transcribed as per Ex.P19. Recordings in the voice recorder were played and transcribed as per Exs.P18 and P17. The higher officer in the Forest Department, N.M.Puttaswamy-P.W.2 was secured and recordings were played before him and he has identified one 13 Spl.C.C.154/2010 voice in the recordings as that of Jagannath Reddy, Forest Guard, i.e., accused of the present case and has given a report as per Ex.P20. Accused-Jagannath Reddy and his higher officer- Govindaraju- P.W.3 and Ravi-P.W.4 were secured and P.W.3 has produced the statement given by complainant regarding keeping worm-snake in the house and as it was confirmed that it was Jagannath Reddy, present accused, who was the person who had demanded bribe amount from the complainant and had attempted to receive the tainted notes at the time of attempted trap and even on the previous day, he had met the complainant on the road and talked to him, Accused was secured and was informed about complaint and on questioning, he has given explanation as per Ex.P28, which was found not acceptable. P.W.3 has also given his statement as per Ex.P29 and also given report as per Ex.P22 and informed that he had sent accused and Ravi- P.W.4 to the house of complainant regarding complaint received by him about keeping of worm-snake in the house and that complainant informed that he has left the snake and he was not knowing that it is wrong and his statement was recorded. Thereafter, accused, P.Ws.3 and 4 were asked to come to the Lokayukta Office on 18-12-2009 for further investigation and they were given police notice. Since trap attempt has failed, tainted notes were returned to the complainant and attempted trap mahazar was prepared as per Ex.P4 and signatures were taken. On 18-12-2009 in the 14 Spl.C.C.154/2010 Lokayukta Office, again panch witnesses appeared and accused also appeared and his sample voice was recorded in the voice recorder and then transmitted to C.D. as per M.O.11 and mahazar was prepared as per Ex.P5. Another mahazar for seizure of the C.D. containing conversation recorded in the voice recorder on 17-12-2009 was also prepared and signatures were taken. Thereafter accused was arrested and was produced before the Court. P.W.5 continued further investigation and after completion of investigation, he has prepared final report and obtained Prosecution Sanction Order as per Ex.P24 and then filed the charge sheet. Prosecution Sanction Order is marked with consent as Ex.P24. Therefore, there is no dispute about valid Prosecution Sanction Order against Accused.
15. In order to bring home the guilt of accused for the offence under section 7 of Prevention of Corruption Act, prosecution has to prove that accused being a public servant, has demanded and attempted to receive illegal gratification and it must also prove that such demand is for doing some official favour or for doing some official work of the complainant. Presumption under Section 20 of Prevention of Corruption Act is available to the prosecution and such presumption can be drawn only when prosecution discharges initial burden of proving that accused has demanded and attempted to receive illegal gratification. Under Section 13(1)
(d) of Prevention of Corruption Act accused receiving 15 Spl.C.C.154/2010 pecuniary advantage by corrupt or illegal means or by abusing his position as public servant or receiving any pecuniary advantage without any public interest would constitute the offence. Under section 15 of Prevention of Corruption Act, any attempt to commit offence under Section 13(1)(d) would also be an offence. Therefore, for offence u/s 15, it is sufficient for the prosecution to prove the attempt of accused to receive pecuniary advantage, without any public interest.
16. It is the prosecution case that complainant was enquired by the Forest Officers, including P.W.3, 4 and accused about keeping of worm snake in his house. An undertaking is said to have been taken from accused as per Ex.P21 by P.W.3 on 01-11-2000. As per the complaint, after taking this undertaking letter from complainant, accused many times contacted complainant and made demand for bribe and he had even received Rs.5,000/- from complainant on 31-10- 2009 and demand for further amount of Rs.10,000/- was continuously made by accused. Though name of accused is not mentioned in complaint-Ex.P26 and FIR-Ex.P27, it is mentioned that he do not know name of the person who has contacted him by phone, but he is sure that he is working in Forest Department. Subsequently, in the investigation it was found that accused is the person who made phone calls to complainant and made demand for bribe amount. In the FIR, name of PW.3 is shown as accused No.1. However, in the 16 Spl.C.C.154/2010 investigation, his name is deleted and charge sheet is filed against only accused. Complainant was not definite about the person who had continuously made demand for bribe from him. Complainant was also not sure regarding the person who has received Rs.5,000/- on 31-10-2009 when he was taken to Forest Office. Therefore, at the time of giving complaint itself, complainant was not sure as to who had called him and demanded bribe and who had received Rs.5,000/- from him. Complainant is not examined in this case. In spite of making all efforts to secure the complainant, witness summons have been returned unserved, as he is not found in the given address and his present address is not known. Therefore, evidence of complainant is not available to identify the accused as person who had taken him to Forest Office and then received Rs.5,000/- from him and who had contacted him by phone continuously and had demanded bribe prior to giving of complaint.
17. In the absence of evidence of complainant, only material available to prove the alleged demand of bribe by Accused prior to giving complaint is the alleged recording made by complainant and then transmitted to C.D. and produced while giving complaint. In the complaint-Ex.P26 it is not mentioned as to in which instrument the said recording has been made. The C.D. produced by complainant was seized as Article No.9 and produced in this case as per M.O.9 and its transcription is marked as Ex.P8. There is no 17 Spl.C.C.154/2010 Certificate under Section 65B of Indian Evidence Act obtained in respect of this C.D. and also transcription at Ex.P8. Voice in the recording is said to have been identified by P.W.2 who is Assistant Conservator of Forest and accused was working under him. P.W.2 has stated in his evidence that a recording was played before him and he has identified one voice as that of accused and gave report as per Ex.P20. In his cross- examination he has admitted that Ex.P20 is typed by Lokayukta Police and he has signed the same as instructed by them. Moreover, P.W.2 is not an expert in voice identification. Therefore, only on the basis of evidence of P.W.2, it cannot be held that one voice heard in M.O.9-C.D. produced by complainant is that of accused.
18. Even in the course of pre-trap and attempted trap proceedings, several phone calls are said to have been made to accused and when complainant and P.W.1 have met accused near the office on 16-12-2009 and even on 17-12- 2009, recordings are said to have been made in button camera, voice recorder and spy camera. Recordings are said to have been transmitted to C.Ds. as per M.Os.3, 4, 5, 6, 7, 8, 10 and 11 and the transcriptions of the recordings have been made as per Exs.P9, P10, P11, P12, P13, P14, P15, P16, P17, P19, P18 and P7. In respect of these transmitted C.Ds. and transcriptions also, no Certificate under Section 65B of Indian Evidence Act is obtained. Original device, like button camera, voice recorder and spy camera are not seized in this case.
18 Spl.C.C.154/2010
19. Learned counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court reported in (2015) 1 SCC (Crl.) 24 (Anvar P.V. vs. P.K.Basheer and others). In this decision, Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records without certificate under Section 65-B of Indian Evidence Act and has held that, when secondary evidence of electronic records are produced before the Court, they cannot be admitted in evidence, unless secondary evidence is accompanied by certificate under Section 65-B of Indian Evidence Act. Therefore, all these C.Ds. and its transcriptions produced in this case, which are not supported by Certificate under Section 65B of Indian Evidence Act, are not admissible in evidence. As these CDs are not admissible, evidence of P.W.2 and his report-Ex.P.20 will not help the prosecution. Moreover, C.Ds. Are not sent for expert's opinion in the course of investigation.
20. When, case of the prosecution is considered in the absence of C.Ds. and transcriptions at M.O.9 and Ex.P8 and in the absence of evidence of Complainant, there is no material before the Court to show that accused had demanded bribe or that, he had received Rs.5,000/- on 31-10-2009, as alleged. Therefore, prosecution has failed to prove the alleged demand of bribe amount by accused before giving of complaint. The complaint itself states that complainant was not aware of the details of the person who demanded bribe. Though name of 19 Spl.C.C.154/2010 P.W.3 is mentioned in the FIR and complaint, no charge sheet is filed against him and he has been examined as P.W.3, wherein he has only stated about taking undertaking of complainant as per Ex.P21. Evidence of P.Ws.3 and 4 only say that on the instructions of P.W.3, Accused, along with P.W.4, had met complainant and brought him before P.W.3 and after enquiry, P.W.3 has taken undertaking as per Ex.P21. No case was registered against complainant. Moreover, accused was only a Forest Guard at the relevant time. As there was no case registered against complainant and he had no official work pending with accused or in Forest Department and accused had no capacity to do any official favour to complainant, Accused demanding bribe is doubtful.
21. Learned Counsel for accused has drawn my attention to a decision of the Hon'ble High Court reported in 2016 (1) KCCR 815 (R.Srinivasan and another Vs. State of Police Inspector Lokayuktha, Bangalore). In this decision, in para 15, Hon'ble High Court has held, "In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do some official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section-7 of the Act." In the present case, there was no official work of complainant was pending and accused had 20 Spl.C.C.154/2010 no capacity to do any official favour to complainant. Complainant was not definite about the person who has made alleged demand of bribe from him and complainant is not before the Court to give evidence. Therefore, pendency of any official work or capacity of accused to do any official favour to complainant and accused demanding bribe from complainant, are not established in this case.
22. Even according to the prosecution, trap attempt was made on 16-12-2009 and 17-12-2009 and it has failed. On 16-12-2009, though complainant and P.W.1 are stated to have met the accused, accused had not received the tainted notes and stated that he is in hurry and asked them to give amount in the hands of P.W.4. But, complainant has not given amount to him and on 17-12-2009 again when complainant was asked to give tainted notes to P.W.4, complainant has refused and thereafter, accused is said to have agreed to send P.W.4 to Hotel and later, accused himself came and talked to complainant and then left the place after seeing button camera. To establish that accused had come to the Hotel on 17-12-2009 and that it was accused, who has met complainant on 16-12-2009, the recordings are stated to have been found in button camera, spy camera and voice recorder, those recordings which are transmitted to C.D. are not admissible in evidence as discussed above. Therefore, only evidence available is that of P.W.1 who is a shadow witness. P.W.1 in his evidence has stated that complaint was against 21 Spl.C.C.154/2010 P.W.3-Govindaraju. He has stated that complainant made phone call to P.W.3. Except stating that on 17-12-2009 it was the accused who had come to Hotel of complainant, in respect of all other events P.W.1 has not stated against accused, but has stated against P.W.3-Govindaraju. He has stated that the person whom they met on 16-12-2009 is one Reddy and that on 17-12-2009 person whom they met is Reddy, i.e., accused. By considering this evidence of P.W.1, even if it is considered that, on 16-12-2009 and 17-12-2009 complainant had met accused, there is no demand for bribe when they so met and even tainted notes were not given to accused during both these meetings. As admitted by P.W.1, case was against P.W.3 and entire conversation which complainant had, was with P.W.3 by phone. Therefore, on the basis of evidence of P.W.1, it cannot be held that accused had, in furtherance of his demand for bribe, met complainant on 16-12-2009 and 17-12- 2009 to receive bribe amount. Regarding accused receiving Rs.5,000/- on 31-10-2009, P.W.1 is not a witness. Therefore, acceptance of bribe amount on 31-10-2009 is not established by any evidence. On 17-12-2009 or on 16-12-2009 trap attempt has failed and accused has not received the amount. Attempt of accused to receive bribe on 17-12-2009 is also not established in this case.
23. In 2014 Crl.L.J., 4399 (Satvir Singh vs. State of Delhi through C.B.I.) the Hon'ble Supreme Court has held that, "The demand and acceptance of the amount 22 Spl.C.C.154/2010 of illegal gratification by the accused is a condition precedent to constitute an offence." In the present case, neither the demand, nor attempt to receive the bribe amount by accused is established. Even receipt of Rs.5,000/- by accused from 31-10-2009 is not established. Out of five witnesses examined for the prosecution, only P.W.1 is material to prove the prosecution case regarding accused meeting complainant during these trap attempts on 16-12-2009 and 17-12-2009. P.W.2 is Officer who has submitted report as per Ex.P20 by identifying voice. P.W.3 is Officer, who is said to have taken undertaking from complainant as per Ex.P21. P.W.4 is Forester, who accompanied accused while he meeting complainant to enquire about keeping worm snake in the house. Therefore, evidence of P.Ws.2, 3 and 4 would not help prosecution to prove alleged demand or attempt of the accused to receive bribe amount from complainant. As complainant is not examined and P.W.1 has also stated about the phone talks between complainant and P.W.3 and not with the accused and P.W.1 has seen the accused only on 16-12- 2009 and 17-12-2009 during which the tainted notes were not received by accused and as there was no work of complainant pending with accused and accused had no capacity to do any favour to complainant, prosecution has failed to prove the demand of illegal gratification by accused and acceptance of Rs.5,000/- on 31-10-2009 and attempts of Accused to receive bribe on 17-12-2009, as contended.
23 Spl.C.C.154/2010
24. Learned counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court reported in 1995 Crl.L.J. 3978 (M.K.Harshan vs. State of Kerala), in which in para 8 Hon'ble Supreme Court has held, "In all these types of cases of bribery, two aspects are important. Firstly there must be a demand and secondly there must be an acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be a clinching evidence to show that it was with the tacit approval of the accused the money had been put in the drawer as an illegal gratification." In the present case, admittedly there is no acceptance of bribe by the accused. The demand of bribe by accused is also not established. Therefore, prosecution has failed to prove the guilt of accused of demand, acceptance or attempt to accept illegal gratification and attempt to commit offence of criminal misconduct. Commission of offences by accused under Section 7, 15, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act is not proved in this case. Hence, Points Nos.1, 2 and 3 are answered in the Negative.
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25. Point No.4:- For the discussion made on Point Nos.1 to 3, Accused is to be acquitted and hence, following Order is passed:
ORDER Accused is found not guilty.
Acting under Section 235(1) of Cr.P.C. Accused is acquitted from the charges levelled against him for the offences under Sections 7, 15, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. The bail bond executed by Accused and his surety stands cancelled.
M.Os.1 to 11 are ordered to be destroyed, after expiry of appeal period, as they are worthless.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the 27 th day of October, 2018).
(Ravindra Hegde), LXXVIII Addl.City Civil & Sessions Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - Srinivas.P.
P.W.2 - Puttaswamy
P.W.3 - V.Govindaraju
P.W.4 - Ravi.C.
PW.5 - Mohammed Irshad
25 Spl.C.C.154/2010
List of documents exhibited for the prosecution:
Ex.P1 - Sheet containing number of currency notes.
P1(a) - Signature of P.W.1 P1(b) - Signature of P.W.5 Ex.P2 - Pre-Trap Mahazar P2(a) - Signature of P.W.2 P2(b) - Signature of P.W.5 Ex.P3 - Mahazar P3(a) - Signature of P.W.1 P3(b) - Signature of P.W.5 Ex.P4 - Mahazar P4(a) - Signature of P.W.1 P4(b) - Signature of P.W.5 Ex.P5 - Seizer Mahazar P5(a) - Signature of P.W.1 P5(b) - Signature of P.W.5 Ex.P6 - Seized Mahazar P6(a) - Signature of P.W.1 P6(b) - Signature of P.W.5 Ex.P7 - Transcription of conversation dtd.17-12-2009 P7(a) - Signature of P.W.1 Ex.P8 - Transcription of conversation P8(a) - Signature of P.W.1 P8(b) - Signature of P.W.5 Ex.P9 - Pre-trap mahazar P9(a) - Signature of P.W.1 P9(b) - Signature of P.W.5 Exs.P10 to P14 - Transcriptions recorded in mobile and transcription recorded when complainant met accused P10(a) to P14(a) - Signatures of P.W.1 Ex.P15 - Transcription of recordings in pen camera and button camera P15(a) - Signature of P.W.1 Ex.P16 to P19 - Transcriptions of conversation recorded in mobile and voice recorder on 17-12-2009 P16(a) to P19(a) - Signatures of P.W.1
26 Spl.C.C.154/2010 P16(b) - Signature of P.W.5 Ex.P20 - Report given by P.W.2 P20(a) -Signature of P.W.2 P20(b) -Signature of P.W.5 Ex.P21 - Attested copy of statement given by Gopinath P21(a) -Signature of P.W.2 P21(b) -Signature of P.W.5 Ex.P22 - Letter to Lokayukta Police stating the mobile number used by accused P22(a) - Signature of P.W.3 P22(b) - Signature of P.W.5 Ex.P23 - Statement u/s.164 of Cr.P.C.
P23(a) -Signature of P.W.3 Ex.P24 - Prosecution Sanction Order Ex.P25 - Statement u/s.164 of Cr.P.C. dtd.20-10-2010 P25(a) -Signature of P.W.4 Ex.P26 - Complaint received by P.W.5 P26(a) -Signature of P.W.5 Ex.P27- F.I.R.
P27(a) -Signature of P.W.5 Ex.P28 - Explanation given by Accused P28(a) -Signature of P.W.5 Ex.P29 - Report given by Govindaraju P29(a) -Signature of P.W.5 Ex.P30 - Acknowledgment received from Jagadish Ex.P31 - Report of Ravi.C P31(a) -Signature of P.W.5 Ex.P32 - Service particulars of Accused Ex.P33 - Call details Ex.P34 - Report of RFO regarding work distribution of Accused along with covering letter Exs.P35 & P36-Spot sketches prepared by P.W.D. Engineer Evidence adduced and documents marked on behalf of the defence:
Nil
27 Spl.C.C.154/2010 Material Objects marked by Prosecution:
M.O.1 & M.O. 2 - Bottles labelled as Article Nos.1 and 2 containing solutions seized during pre-trap proceedings M.O.3 to M.O.11- Nine C.Ds. found in nine sealed covers labelled as Article Nos.3 to 11 M.O.3A to MO.11A - Covers (Ravindra Hegde), LXXVIII Addl.City Civil & Sessions Judge (PCA), Bengaluru. ***