Bangalore District Court
State By Karnataka vs Mr.B.M.Nagabhushan on 21 October, 2021
1
Spl.C.C. No.306/2010
KABC010216862010
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS COURT AND SPECIAL
COURT UNDER PREVENTION OF CORRUPTION
ACT 1988, AT BENGALURU CITY (CCH-78)
DATED THIS THE 21 st DAY OF OCTOBER 2021
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE &SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No.306/2010
COMPLAINANT: State by Karnataka
Lokayuktha Police.
(Rep. by Mrs.Suneetha,
Public Prosecutor)
/VS/
ACCUSED: 1. Mr.B.M.Nagabhushan
S/o Late B.R. Mahadevaiah,
48 Years, First Division
Assistant, Special Land
2
Spl.C.C. No.306/2010
Acquisition Officer-2,
K.I.A.D.B., 3rd Floor,
Thimmaiah Towers,
Gandhinagar,Bengaluru.
R/at No.429, 2nd Cross,
Bhuvaneshwari Nagara,
Near Kamakya Talkies,
Bananshankari 3rd Stage,
Bengaluru -85.
2. Mr.N.R.Nagaraju,
S/o N.Revanasiddappa,
35 years, Special Land
Acquisition Officer, KIADB,
Gandhinagar, Bengaluru.
R/at E-807, Tavarekere Main
Presitge St.Johns Wood
Apartment, Chikka Audugodi,
Bengaluru -29.
(Rep by Sri.S.Balan, Adv.for
Accused No.1,
Sri.S.V. Vadavadagi, Adv.for
Accused No.2)
TABULATION OF EVENTS
01. Date of commission of offence : 28-06-2010
02. Date of report of offences to
the Police Station (FIR date) : 28-06-2010
03. Date of arrest of accused : 28-06-2010
3
Spl.C.C. No.306/2010
04. Date of release of accused
from JC : A1 on 15-07-2010
A2 on 12-07-2010
05. Name of the complainant : Lokayuktha
Police.
06. Nature of offence complained : U/S.Sec.7,
13(1)(d) R/w
Sec.13(2) of
Prevention of
Corruption Act
1988 coupled
with Sec.120B
of IPC.
07. Date of submission of
charge sheet : 29-09-2010
08. Date of commencement of
recording of evidence : 03-01-2018
09. Date of closing of evidence : 22-11-2019
10. Date of judgment : 21-10-2021
11. Opinion of the Judge in
respect of the offences. : Accused No.1
& 2 are acquitted.
*****
JU DG ME N T
1. The Police Inspector, Karnataka Lokayuktha, Bengaluru City Division has filed the charge 4 Spl.C.C. No.306/2010 sheet against the accused Nos.1 and 2 for the offences punishable under Secs. 7, 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 coupled with Sec.120B of the Indian Penal Code.
2. The brief facts of the prosecution case reads as under:
(a). The accused No.1 being a Public servant was working as the First Division Assistant in the office of the Spl.Land Acquisition Officer-2, K.I.A.D.B., Gandhinagar, Bengaluru and the 2nd accused being a public servant working as a Spl.Land Acquisition Officer, K.I.A..D.B., Gandhinagar, Bengaluru on 26-03-2010 demanded Rs. 1,00,000/- as illegal gratification from CW.1, Sri.A.Rukmangadha for issuance of TDS certificate in respect of the 5 Spl.C.C. No.306/2010 compensation amount awarded for having acquired the land of P.W.5 under the Scheme of Metro Rail project.
(b) These accused Nos.1 and 2 on 28-06-
2010 at about 1.40 PM in their office demanded and accepted the illegal gratification of said sum of Rs. 1,00,000/- from CW.1 to show an official favour to CW.1 which amounted to commission of offences whereby both accused hatched a criminal conspiracy and thereby they have committed the above said offices.
3. After securing the presence of the accused Nos.1 and 2 before this Court, initially they were arrested by the prosecution police then were duly enlarged on regular bail. As per mandatory compliance, prosecution papers 6 Spl.C.C. No.306/2010 were supplied to them and as there was a prima-facie material to frame charges against them, this Court framed charges against the accused Nos.1 and 2 which was read over to them in their known language. The accused Nos.1 and 2 having understood the same, pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused, the prosecution in all has examined PWs.1 to 12 and exhibits at Ex.P.1 to P.36 came to be marked. MOs. No.1 to 17 got identified. On the other hand, as there was incriminating evidence found against the accused Nos.1 and 2, statements and additional statements as contemplated under Sec.313 of Cr.P.C. came to be recorded, to which the accused Nos.1 and 2 denied the same. The 1st accused got himself 7 Spl.C.C. No.306/2010 examined as DW - 1, and exhibits at D1 and D2 came to be marked.
5. Heard the arguments.
6. During the course of arguments, the learned counsel appearing for the accused Nos.1 and 2 submitted their respective written arguments and list with citations. I have gone through them carefully in detail.
7. The fresh points that crop up for my consideration are as follows:
1) Whether the prosecution is able to convince and prove before this Court that they had obtained valid sanction to prosecute both accused Nos.1 and 2?
2). Whether the prosecution proves beyond all reasonable doubt that on 23-06-2010 at the Spl.Land 8 Spl.C.C. No.306/2010 Acquisition Office, KIADB, Gandhinagar, Bengaluru when the 1 st accused being a public servant working as a First Division Assistant in the said office, 2 nd accused who being a Spl.Land Acquisition Officer, demanded a sum of Rs. 1,00,000/- as an illegal gratification from CW.1, A.Rukmangadha for issuance of TDS certificate in respect of the compensation amount awarded for hving acquired the land of PW.5 under the Metro Rail Scheme.Further, both accused Nos.1 and 2
on 28-06-2010 at about 1.40 p.m. in their office demanded and accepted an illegal gratification of Rs. 1,00,000/- from CW.1 to show an official favour to him in the matter of issuance of TDS certificate, thereby have committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988 ?
3) Whether the prosecution proves beyond all reasonable doubt on the aforementioned date, time and place, accused Nos.1 and 2 being a 9 Spl.C.C. No.306/2010 public servant hatched a criminal conspiracy to commit an illegal act of obtaining a pecuniary advantage from CW.1 for issuing TDS certificate and in furtherance of the same, on 28-06-2010 at about 1.40 p.m. by adopting corruption or illegal means or by otherwise abusing their positions as public servants received to themselves pecuniary advantage of Rs.
1,00,000/- when there being no public interest from CW.1 which amounted to criminal misconduct and therefore, alleged to have committed offences under Secs.13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 and Sec.120B of IPC?
4). What order?
8. After carefully going through the materials available on record and also considering the facts and circumstances of the case, my findings to the above points are as under:
POINT NO.1 : In the affirmative.10
Spl.C.C. No.306/2010 POINT Nos.2 & 3: In the negative.
POINT NO.4 : As per my final order for the following:
REASONS
9. POINT NO.1: As the prosecution, the Karnataka Lokayuktha, have invoked Sec.7 with other connected sections of the said Act coupled with the provisions of IPC, the foremost consideration which shall have to be convinced by the prosecution is in respect of obtaining prior sanction to prosecute both the accused. The undisputed facts of the case are being that, both the accused persons were public servants when the Investigating Officer registered this case/FIR and filed the charge sheet against them. The 1st accused was the First Division Assistant attached to the Land Acquisition Office, KIADB, Gandhinagar, 11 Spl.C.C. No.306/2010 Bengaluru and the 2nd accused being the Spl.Land Acquisition Officer of the same office. The facts which forms the allegations of this case is to show before the Court that this accused No.1 was the FDA, case worker with KIADB and the 2nd accused was the Spl.LAO, to whom this CW.1 Rukmangadha approached. This CW.1 claims to be the GPA holder of his own younger sister by name Smt.Kamala who is the beneficiary, whose land was acquired by the said authority for the purpose of Metro Rail Project. So far as these aspects are concerned, they are not in dispute. But, according to the complainant, the accused No.2 ought to have issued a cheque of the compensation amount and the 1st accused was to put up concerned file by preparing the said cheques and TDS certificate in that process, both of them 12 Spl.C.C. No.306/2010 committed the above said offences. The documents available in this case make out that when both accused had filed an application seeking for discharge them from this case, this Court vide its order dtd.03-10-2012 allowed the application of the 1st accused by holding that sanction order passed by the authority is not in accordance with law. Hence, went on to hold that it was an invalid sanction, thereby directed the Karnataka Lokayuktha to present the prosecution papers regarding the approval of sanction afresh and then to file the same before this Court in this case. So far as the application of the 2nd accused came to be rejected by holding that sanction obtained by the said authority was valid and proper. So keeping in mind these aspects, this Court will have to analyze the evidence available on 13 Spl.C.C. No.306/2010 record touching the present point for consideration.
10. In this regard, at the cost of repetition it is stated that, as the initial sanction order granted was not by the Board/appointing authority so it was held to be invalid in respect of the 1st accused. Nevertheless, that aspect has to be scrutinized again. Coming to the evidence of PW. 7, by name T.Shyam Bhat, S/o T.Narayana Bhat who acted as the Chairman of KPSC, Bengaluru. He deposed that on 6th August 2010, he receives a letter from ADGP, Bengaluru with documents such as FIR, Trap Mahazar, endorsement mahazar, etc. At that time, this 1st accused was working in their office as FDA. He also gives the evidence that the file which was sent for consideration was in 14 Spl.C.C. No.306/2010 respect of payment of compensation amount to the beneficiary. According to this witness, he receives the statement of the 1st accused along with the report of the Investigating Officer. On scrutinizing everything, he issued Ex.P. 15, which is the sanctioned order which is issued by him at the first instance. On a close look at Ex.P. 15, this document reproduces what are all the documents perused by him prior to Ex.P. 15. This Ex.P. 15 was issued by this PW. 7 in his official capacity and there is also reference as to the witnesses cited in the said criminal case filed against the 1 st and 2nd accused herein.
11. In the cross-examination of this witness, matters pertaining to the allegations that were leveled against accused Nos.1 and 2 herein 15 Spl.C.C. No.306/2010 were posed to this witness. This witness in his cross-examination answers some of them on the ground that Ex.P. 15 was not placed before their board. The material admission given by this PW. 7 reads as under:
" I have not obtained prior approval of board, prior to sanction of Ex.P. 15".
12. This admission given by PW. 7 was made as a platform for the 1st accused to file an application seeking for discharge, which came to be allowed by this Court, which is referred supra. In view of the directions contained in that order, again the Investigating Officer of the Karnataka Lokayuktha approached the competent Board and obtained Ex.P. 33, which was the fresh sanction order in respect of the 1st accused to proceed against him in this case. 16
Spl.C.C. No.306/2010 This Ex.P.33 came to be issued by the said KIADB and the lapses which were highlighted by this Court after going through Ex.P.15 have been fully met and complied by the K.L.A. In order to support Ex.P. 33, the prosecution examines its author PW. 11 by name Mallikarjuna, S/o Bhimappa Dyaberi, who was the Secretary, Labour Department, who issued this Ex.P. 33. In fact, in his examination-in- chief, this PW. 11 makes it very clear that as the ADGP has sent another requisition after this Court held that sanction obtained earlier was invalid so far as the 1st accused is concerned. So, again, he went through all the sent annexures/enclosures with the said requisition then applied his mind and accorded sanction as per Ex.P. 33. In the cross- examination of PW. 11, even though there was 17 Spl.C.C. No.306/2010 an attempt to show before this Court that this PW. 11 has also committed similar mistake as one committed by PW. 7 earlier, but the concerned defence counsel was not successful in establishing this aspect. Nevertheless, when Ex.P. 33 and P.35 are gone through those resolution and minutes of the meeting which culminated in Ex.P. 33 did show before this Court that this prosecution has obtained valid sanction against accused No.1 to proceed against accused No.1 so far as this case is concerned.
13. Coming to the role of 2nd accused is concerned, as I have stated he being a Spl.Land Acquisition Officer, even though he has earlier filed an application seeking for his discharge that came to be negatived by this 18 Spl.C.C. No.306/2010 Court. In fact, when the oral testimony of one PW.6 by name Dr.M.T.Reju who was the Deputy Secretary in DPAR is gone through, has spoken to the fact that their office received a requisition from the Lokayuktha on 28-06- 2010 seeking for prior permission to prosecute the 2nd accused. This witness makes it very clear that the concerned file was put up before the then Hon'ble Chief Minister Sri.Yediyurappa as the 2nd accused was of the rank of the KAS Officer and that Chief Minister accorded the sanction as per Ex.P. 14 on 31- 08-2010.
14. In the cross-examination, the pith and substance of it was to highlight before the Court that there was no proper application of mind and this witness mechanically had put 19 Spl.C.C. No.306/2010 up note in the file which was placed before the then Chief Minister who also mechanically signed the same. Now the question before the Court is that, having gone through Ex.P. 14 and the oral testimony of PW. 6 does it show that entire approach adopted by this witness and the said authority are mechanical in nature? According to me, it is not so. Because, when the 2nd accused is the KAS Officer, he becomes also the Drawing and Disbursing Officer who was empowered to issue cheque. So, considering these aspects that authority had accorded sanction as per Ex.P. 14 by applying its mind to the facts and circumstances. The only available defence which could have been taken by the 2 nd accused was that the authority which issued Ex.P. 14 was not competent to remove the said 20 Spl.C.C. No.306/2010 KAS officer. So, it is not the case of the 2 nd accused that Chief Minister or his Secretaries of the IAS officer rank attached to the CM's office were not having any power to remove the 2nd accused from his office. Under such circumstances, that office acted both as appointing as well as removal authority hence, Ex.P. 14 cannot be found fault with.
15. On a cursory glance at Ex.P. 14, the covenants of this this order is subtle, clear and terse. In fact, in Ex.P. 14, there is a reference to the documents which have been looked into by the said PW. 6 and also he has summed up the entire proceedings by putting a note in the file which was placed before the then Chief Minister for his necessary orders. It does not show or indicate that Ex.P. 14 is the out come 21 Spl.C.C. No.306/2010 of non-application of mind or a mechanical approach adopted by PW. 6. In spite of cross- examining PW. 6, the learned Counsel appearing for the 2nd accused did not show that there is no proper and valid sanction obtained by the Investigating Officer to prosecute them. Hence, this ocular and documentary evidence show that there is a valid sanction obtained by the Investigating Officer to prosecute accused Nos.1 and 2. So he filed the charge-sheet against them after completing his investigation.
16. So far as prosecution placing sanction orders in respect of prosecuting accused Nos. 1 and 2 are concerned, they were found fault with by both the accused. To begin with, counsel for the 1st accused by relying upon the decisions reported in 1979 AIR 677 between 22 Spl.C.C. No.306/2010 Mohd. Iqbal Vs. State of Andra Pradesh, wherein the Hon'ble Apex Court has held as under:
" 2(a). The grant of sanction is not an idle formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution could be launched against public servants."
17. Another decision reported in 1997 SCC (LS) 1784 in the matter between Mansuklal Vithaldas Chauhan Vs. State of Gujarat, wherein the Hon'ble Apex Court has held as under:
Criminal -sanction to prosecute- Section 197 of Criminal Procedure Code, 1973 - validity of sanction depends on applicability of mind by sanctioning authority to facts of case and 23 Spl.C.C. No.306/2010 also material and evidence collected during investigation
- sanctioning authority to apply its own independent mind for generation of genuine satisfaction whether prosecution to be sanctioned or not - sanctioning authority unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant sanction - order to be bad for reason that discretion of authority 'not to sanction' taken away and compelled to act mechanically to sanction prosecution."
18. Likewise, another decision reported in AIR 1954 SC 637 in the case of Madan Mohan Singh Vs. State of Uttar Pradesh, wherein the Hon'ble Apex Court has held as under:
Criminal - Validity of Sanction
- obtained for prosecution - Section 6(1) of the Prevention of Corruption Act, 1947 24 Spl.C.C. No.306/2010
-Section 161 Indian Penal Code, 1860 - whether the sanction obtained for prosecution of the accused was valid - whether the Court has jurisdiction - Held, the letter of sanction not signed by Commissioner of Excise but purports to have been signed by Personal Assistant -
Further there was nothing in the letter which purports to be a reply of wireless message received by Collector to show that sanction was given in respect of the facts constituting the offence - Prosecution did not prove any extraneous evidence, that the material facts were placed before the sanctioning authority - Moreover burden of proving the requisite sanction has been obtained rests on the prosecution - Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based - and these facts might appear on the face of the sanction or might be proved by extraneous evidence
- In the present case, the facts 25 Spl.C.C. No.306/2010 constituting the offence do not appear on the face of the letter Ex.P.10 - It was consequently incumbent upont he prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority - Hence, sanction therefore be held to be defective and invalid sanction could not confer jurisdiction upon the court to try the case - Appeal allowed criminal - conviction -
challenged thereto - Section 161 of Indian Penal Code, 1860- Appellant - accused was convicted by the High Court -
Aggrieved by the decision of the High Court the present appeal- Whether High Court erred in convicting the Appellant - accused - Held, the High Court in hearing an appeal against an order of acquittal has full powers to review and reassess the evidence on ecord and reach its own conclusions upon its estimate of the evidence. In exercising these powers the High Court should and will always give proper weight and consideration to such matters 26 Spl.C.C. No.306/2010 as (1) the views of the trial court as to the credibility of witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of the appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses. The Judges of the High Court did not keep these rules and principles of administration of criminal justice and that judgment was vitiated by non advertence to and misappropriation of various facts transpiring in evidence and consequent failure to give due weight and consideration to the findings upon which the trial court based its decision. - The findings of the Magistrate was quite reasonable and was supported by facts - no justification for the High Court's interfering with the findings of trial Court Criminal - illegal gratification
- motive- Section 161 of 27 Spl.C.C. No.306/2010 Indian Penal Code, 1860 -
Held, the essence of an offence under Section 161A of the Indian Penal Code is obtaining or acceptance, by a public servant, of a gratification other than legal remuneration as a motive or reward for doing or for bearing to do an official act or for showing or forbearing to show any favour or disfavour to any person or for rendering any service or disservice to him- complainant made three statements in three occasion were in contradiction to each other -
The High Court's remark on this point by saying that whatever discrepancies there might be in this respect they have no bearing on the question in issue - The approach taken by High Court was entirely wrong- These were material and relevant facts for arriving at a conclusion as to whether complainant was truthful man and reliance could be placed upon his evidence - The trial Court came to definite conclusion that he was speaking untruth from the beginning to end and from the 28 Spl.C.C. No.306/2010 material on the record the Court was unable to say that this estimate of the trial Court was in any way improper.
19. And contended that so far as obtaining sanction to prosecute is concerned, sanctioning authority has to apply its own independent mind for generation of genuine satisfaction whether prosecution to be sanctioned or not. No doubt, in the present case, initially the sanction order which was obtained in respect of the 1st accused was held to be defective, but subsequently, the prosecution was able to over come this infirmity. Under such circumstances, so far as the principles enunciated in the above said decisions, definitely are not in dispute. But, with high respect, it is stated that the facts of the present case is different from those cases 29 Spl.C.C. No.306/2010 referred therein. So far as the 1 st accused is concerned, the prosecution is able to prove that they had obtained valid sanction subsequently.
20. So far as the 2nd accused is concerned, it was also his trumph-card that the sanction obtained was with error, omission and irregularity, which has resulted in failure of justice. In this regard, he relies upon the decision reported in AIR 2008 SC 108 in the matter between State of Karnataka Vs. Ameer Jaan, wherein the Hon'ble Apex Court has held as under:
Criminal - Sanction - Sec.19 of the Prevention of Corruption Act, 1988 - Respondent worked as second division assistant in the office of registrar of firms demanded a bribe of certain amount for grant of certificate - Order of 30 Spl.C.C. No.306/2010 sanction was issued by Commissioner - Trial Judge held that respondent was guilty of offence - High Court set aside conviction on the ground that sanction was issued by Commissioner -
Trial Judge held that respondent was guilty of
offence - High Court set aside conviction on ground that sanction was illegal - Hence, present appeal - Held, sanctioning authority is the best person to judge whether a person should receive the protection under the Act by refusing to accord sanction for his prosecution or not - Before passing order of sanction, the entire records containing the materials connected against accused should be placed before the sanctioning authority - If the order of sanction does not indicate application of mind, the same may be produced before the Court to show that such materials had been in fact produced - Facts revealed that except report no other record was made available before sanctioning authority - Thus order of High Court does nto 31 Spl.C.C. No.306/2010 suffer from any infirmity - Appeal dismissed.
21. He also relies upon the decision reported in AIR 2014 SC 827 in the matter between C.B.I. Vs. Ashok Kumar Aggarwal, wherein the Hon'ble Apex Court has held as under:
(1) Prevention of Corruption Act, 1988-Sec.19 - Sanction for prosecution -Relevant issued involved in instant case is at what stage validity of sanction order can be raised-Held-
Undoubtedly, stage of examining validity of sanction is during trial-Validity of sanction order should not be examined during stage of inquiry or at pre-trial stage. (2) Prevention of Corruption Act, 1988 - Section 19-Sanction for prosecution-Legal propositions-Summarized. The legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, 32 Spl.C.C. No.306/2010 statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading 33 Spl.C.C. No.306/2010 evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
(3) Prevention of Corruption Act, 1988 -Section 19- Sanction for prosecution-Grant of sanction-Is not mere formality-
Provisions in regard to sanction must be observed with complete strictness-keeping in mind public interest and protection available to accused against whom sanction is sought-Grant of sanction is not acrimonious exercise but solemn and sacrosanct act which affords protection to Government servant against frivolous prosecution. The prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the 34 Spl.C.C. No.306/2010 sanction order. However, in every individual case, the Court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case.
Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It is to be kept in mind that sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the Government Servant against frivolous prosecution. Further, it is a weapon t discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the 35 Spl.C.C. No.306/2010 guilty. Consideration of the material, implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it in every individual case, the prosecution has to establish and satisfy the Court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the Court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind.
36
Spl.C.C. No.306/2010 (4) Prevention of corruption Act, 1988-Section 19-Sanction for prosecution-Power to grant sanction-Statutory authority has to apply its mind and take decision whether to grant sanction or not-No force in submission that competent authority can delegate its power to some other officer or authority, or Hon'ble Minister could grant sanction even on basis of report of S.P.
22. Relying upon the above said decisions the counsel for the 2nd accused contended before this Court that as the appointing authority failed to bestow its attention and applied its mind while granting the sanction order, they are invalid, further according to him there is an error apparent on the face of the record which has rendered the sanction order bad. So far as the principles enunciated in the above cases are concerned, they are unquestionable 37 Spl.C.C. No.306/2010 but with great respect it is stated that they are not applicable to the case on hand because facts of the case are distinguishable. When the sanctioned order which are cited supra are gone through, it has convinced this Court that as the IO has sent his requisition with the entire annexures which includes copies of complaint, FIR, entrustment mahazar, trap mahazar etc. that clearly go to show that the concerned authority has properly applied its mind. Under such circumstances, this Court has not come across any such legal infirmity which has rendered the sanctions invalid. Accordingly, I have answered this point No.1 in the affirmative.
23. POINT NO.2: The entire case of the prosecution rests upon Ex.P. 18. It is the 38 Spl.C.C. No.306/2010 complaint given by the C.W.- 1, A.Rukmangadha and he alleges that PW. 5 by name Smt.Kamala who being the beneficiary, his sister, as her property i.e., land bearing Sy.No. 42/2 and 34/2 out of which Corporation property bearing No.28 situated at 2nd Main Road, KIADB, Chord Road, I Stage, Peenya, Bengaluru was acquired for Metro Rail Project. Initially some compensation was awarded. Being dissatisfied with this award and that compensation amount, she knocked the doors of the Hon'ble High Court of Karnataka, by filing a writ petition wherein the compensation amount was enhanced to Rs. 63,00,000/-, which also included solatium. There was a direction to the 2nd accused office to prepare the award and in turn to complete all the legal formalities to disburse the 39 Spl.C.C. No.306/2010 compensation through cheque in favour of the beneficiary. This complainant alleges that as Smt.Kamala had executed a GPA in his favour, he visited the KIADB office situated at Gandhi Nagar, Bengaluru and met the 2nd accused. He has further stated that he was asked to come twice, then the 2nd accused said to have demanded this complainant an illegal gratification of Rs. 1,00,000/- which shall have to be paid by the complainant and that said amount should be paid to the 1st accused who is the case worker. In this regard, he approached the Lokayuktha, meets PW. 8 and then that trap takes place. In the instant case, the counsel appearing for the 1 st accused put up their brave contention that as the person at whose behest this criminal law was set in motion, he has not been examined, so the 40 Spl.C.C. No.306/2010 entire allegation contained in Ex.P. 16 falls to ground. But, in this regard, when this Court minutely gone through the oral testimonies of two witnesses, they are PW. 5 and PW. 8, they have deposed that the prosecution was unable to examine CW1, A.Rukmangadha as he died during the course of this proceedings. The evidence given by PW. 5 in her examination-in- chief is extracted as under:
" CW.1 Rukmangadha is my elder brother. My elder brother, said Rukmangada expired on 07-01-2018."
24. So, finding fault with the prosecution that prosecution intentionally has not examined CW.1 will not enure to the benefit of both the accused. Likewise, PW. 8 Sri.K.C. Lakshminarayana, who was the Dy.S.P., ACB, Bengaluru also in his examination-in-chief 41 Spl.C.C. No.306/2010 given this evidence and strangely none of the accused have disputed the fact of death of Rukmangadha. In fact, the 1st accused tried to take millage out of this alleged lapse which is said to have been committed by the prosecution. But, in reality as CW.1 is no more, so question of finding corroboration to Ex.P. 18 does not arise at all. With this grey area, the Court will have to find answers to the allegations leveled by the prosecution against both the accused in respect of Sec.7 of the Prevention of Corruption Act, 1988.
25. Even though, it is the common allegation made by the prosecution against both the accused that both of them demanded bribe of Rs. 1,00,000/- from the C.W. -1, A.Rukmangadha. So initially Sec.7 is attracted. 42
Spl.C.C. No.306/2010 As a consequemce quite naturally as the MO.1 is found in the pant pocket of accused No.1, it was contended by the prosecution that this Court will have to draw inference that the said amount found was a tainted currency notes paid towards illegal gratification. Considering the trap, subsequent events i.e. seizure of MO.1, contents of Ex.P. 1 to P.3 which are the note sheets, entrustment mahazar and the trap mahazar, will assume all the importance only when demand for bride by both accused persons is proved by the prosecution, in this regard the learned counsel for the 1 st accused went on to rely upon the decisions reported in AIR 1979 SC 1408 in the matter between Suraj Mal Vs. State (Delhi Administration), wherein the Hon'ble Apex Court held as under:
Criminal -Bribe- Section 342 of 43 Spl.C.C. No.306/2010 Criminal Procedure Code, 1973, Section 5 (2) of Prevention of Corruption Act, 1947 and Sections 34 and 161 of Indian Penal Code, 1860 -Appeal against conviction for offence under Section 5(2) of Act of 1947 and Section 161/34 of IPC - Appellant who was in charge of investigation of case against X and his companions demanded bribe to get them acquitted -
Money paid as bribe was recovered from shirt of appellant - Appellant denied accepting any money from X and his companions in statement made Section 342 -
mere recovery of money from appellant not sufficient to prove the charge of prosecution against appellant in absence of any evidence to prove payment of bribe or to show that appellant had voluntarily accepted money - held, conviction of appellant liable to be set aside -Appeal allowed.
26. On similar principles, another decision reported in 2018(3) Kar.L.J.637 in the matter between N.Raghumurthy Vs. The State, wherein the Hon'ble Court held as 44 Spl.C.C. No.306/2010 under:
Criminal -Corruption - Conviction
- sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (PC Act) - present appeal is filed to challenge judgment of conviction and order of sentence passed against appellant for commission of offence punishable under Sections 7 and 1392) of PC Act - Whether judgment of conviction and order of sentence under challenge deserve interference - Held, demand of illegal gratification is a sine qua non for constitution of an offence under provisions of PC Act - Prosecution is bound to prove by substantive evidence regarding the demand and acceptance of money beyond reasonable doubt - In present case, prosecution failed to prove that money was received by accused as an illegal gratification - Demand and acceptance of illegal gratification was not proved by prosecution beyond reasonable doubt
-Conviction and sentence is set aside -Appeal allowed.
27. This decision was also supplied by the 2nd 45 Spl.C.C. No.306/2010 accused counsel. Another unreported judgment of the Hon'ble High Court of Karnataka rendered in Crl.A.Nos.366 c/w 327 of 2007 in the case of R.malini Vs. State of Karnataka was also relied by them. One more reported decision in ILR 2017 Karnataka 5591 in the matter between N.A.Suryanarayana Vs. State, wherein the Hon'ble High Court of Karnataka held as under:
The Court is expected to look into closely as to whether the accused has the official role to play in order to do an official favour. - 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 official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Sec.7 of the Act. - Prosecution is 46 Spl.C.C. No.306/2010 expected to prove that the acceptance of bait money by the accused was preceded by demand. Hence, heavy burden is on the prosecution to prove both demand as well as acceptance in a trap case. - Acceptance of bribe amount or possession of tainted money by the public servant must be preceded by demand and evidence has to be appreciated properly giving the benefit to the accused. - The explanation offered by the accused for possession of the alleged amount must be considered. 915), (53) and (61)
28. And lastly, this decision reported in 2010(3) KCCR 1851 State of Karnataka Vs. M.Gopalakrishnaiah & Ors., wherein the Hon'ble High Court of Karnataka held as under:
Criminal -Acquittal from bribery charges - Challenge thereto - Sections 7, 13 and 20, Prevention of Corruption Act, 1988 -Accused were charged for taking bribe - Trial Court acquitted - Hence, present appeal - Whether trial 47 Spl.C.C. No.306/2010 Court rightly acquitted accused - Held, merely because amounts found in pocket of accused, that will not prove offence unless it is shown that accused abusing their position as public servant have done something in lieu collection of bribe - Even to draw a presumption under Section 20, prosecution is required to prove that there was demand and acceptance - If demand and acceptance for purpose of official favour is proved by prosecution beyond reasonable doubt, burden may shift on accused to rebut the same, however, when initial burden of proving demand and acceptance is not proved, presumption under Section 20 does not arise - Evidence of complainant did not state that accused X and Y had demanded money for purpose of showing official favour nor does it show that they were acting on behalf of accused Z - Impugned acquittal upheld - Appeal dismissed.
29. The learned Counsel relying on the above decisions contended that it is a tirate of law that if Section 7 has to be attracted, there 48 Spl.C.C. No.306/2010 must be a specific demand for bribe. Likewise, on a similar footing he contended that even if a tainted money is found in the pocket of the public servant, it cannot amount to an acceptance of bribe. Under such circumstances, he submitted that even for the argument sake, MO.1 is considered to be the seized amount from the Trouser pocket of the accused No.1, but it cannot be considered as a bribe amount. Now having taken up this contention, quite naturally, the burden of proof which is virtually an oscillating pendulum shifts to the accused. In this case, 1 st accused has given his evidence by examining himself as DW.1. The question before this Court is, the 1st accused by controverting the allegations made against him has given his oral evidence on solemn affirmation denying the imputation 49 Spl.C.C. No.306/2010 made against him by the prosecution. In the instant case, his ocular evidence is nothing but denying all allegations made against him by prosecution witnesses. In this case, he denies the material evidence of PWs. 1, 2 and 8.
Admittedly, PW. 1 is a shadow witness. PW.2 is a co-mahazar witness and lastly PW. 8 is an Investigating Officer. In the examination-in- chief, this DW.1 instead of coming out with his version as to how did a sum of Rs. 1,00,000/- finds a place in his Trouser pocket, he alleges against prosecution that he was forced to write Exs. P 10 and 11. He says that his statements are not voluntarily taken. He was forced to write in a particular way by the PW NO.8. Hence, those writings have taken place. In his examination-in-chief, he says that he was at his office on 28-06-2010 between 10.30 A.M. 50 Spl.C.C. No.306/2010 and 1.30 P.M., where PW. 8 and his team visits them. According to him, PW. 8 on that day instructed him to write the statements. So as per PW.8's instructions, he has written those statements at Ex.P. 10 and P.11 under threat. So, he says that out of his own volition he has not done anything. In the cross-examination conducted by the Public Prosecutor, all the material suggestions have been denied by this witness.
30. So far as this special statute is concerned, initially it places burden on the prosecution to prove and it must discharge as to what was the demand and what was the acceptance. Likewise, another important aspect is that there must be a pending work of the complainant or his family members. Of course, 51 Spl.C.C. No.306/2010 there is no doubt and it is an undisputed fact that when the alleged trap took place, both accused Nos.1 and 2 were public servants. So far as the pending work of CW.1 was concerned, there seems to be some confusion. It is because, when the evidence of PW. 5 is gone through, this lady did not support Ex.P- 16 of the CW.1 to its fullest extent. According to this lady, she deposed that CW.1 is her brother, she has received the compensation amount in respect of the acquired land by the KIADB. She had given power of attorney to her brother. The said document was also got identified by this lady. But, in the cross- examination, she admits that when she received the compensation cheque, neither the accused No.1 nor accused No.2 demanded any money, which admission is extracted as under: 52
Spl.C.C. No.306/2010 "It is true that while giving cheque on that day, no money was demanded or given by me. Witness volunteers that, after that, for the papers, the accused had demanded money and this was said to me by CW.1."
31. So, if at all PW. 5 has come to this Court, it is only on the basis of some of the aspects told by CW.1 to her. It is rather surprising that during the course of arguments, neither the 1 st accused counsel nor the 2nd accused counsel took up the contention that the evidence of PW.
5 cannot be relied upon, because, she is a hearsay witness. Because, admittedly, this lady's version is that the moment she gave GPA to her brother, CW.1, she is unaware of what transpired in the Gandhi Nagar KIADB office on the alleged trap day which took place on 20-
08-2006. Even if this Court were to rely on the 53 Spl.C.C. No.306/2010 version of PW. 5, it cannot help the prosecution because, CW.1 has not tendered his oral evidence. In the absence of supporting Ex.P. 16, it is doubtful as to how that document can be proved. So, under such circumstances, as admitted by PW. 5 herself that there was no demand for any bribe and she has collected her cheque which is issued towards the compensation personally by attending the said office.
32. Now coming to the evidence of material witness PW. 1 by name Vishwanath S/o Late C.Chandrashekar, who was the FDA attached to the Department of Rural Development and Panchayath Raj, Bengaluru, he is a shadow witness and his evidence assumes all the importance because CW.1 has not given any 54 Spl.C.C. No.306/2010 evidence. The legal position so far as the Prevention of Corruption Act, 1988 is concerned, the complainant indirectly becomes the accomplice with two accused so even if he were to give evidence that cannot be equated to the evidence of a shadow witness. But, the law is very clear that, giving and accepting bribe are equally amounts to commission of offences. This evidence of PW. 1 shall have to be analyzed carefully in isolation knowing that CW.1 has not given any evidence.
33. In his examination-in-chief, there are materials by way of evidence that he was called to the Lokayuktha office by the PW. 8. Ex.P.1 is the currency note sheets i.e. Rs. 1,00,000/- containing hundred notes of Rs.1000/-. There, serial numbers were recorded and this witness 55 Spl.C.C. No.306/2010 and PW. 2 were told the brief summary of the intended raid. The Lokayuktha police also demonstrated how the chemical reaction takes place when phenolphthalein powder comes into contact with Sodium Carbonate Solution after applying that chemical powder, the currency notes were placed in a cover and the said cover was also smeared with chemical powder and was handed over to the complainant. He kept the cover containing the tainted currency notes in his back side pant pocket, thereafter, his both hand fingers were washed in the solution. The said solution turned to pink colour and according to this witness, then he washed his hands. Lastly, he was instructed to follow the complainant at some distance. As this witness is a shadow witness will have to over hear what is the conversation which takes 56 Spl.C.C. No.306/2010 place between complainant and the 1st accused. Entrustment mahazar was marked at Ex.P. 2. Further, in examination-in-chief he comes out with an evasive evidence that he cannot remember as to what was the instructions passed on to the complainant by the Police Inspector of the Karnataka Lokayuktha. When they went to the office of KIADB, Gandhinagar at about 1.45 P.M. he saw the 1st accused receiving the cover from the complainant. Then the complainant wipes his head, then the said trap takes place. But, this witness was treated as a partly hostile witness in respect of the alleged conversation that took place which was also enscripted in a CD. In fact, this aspect becomes very important. Likewise, in the cross-examination, the 1st accused counsel was successful in 57 Spl.C.C. No.306/2010 highlighting before this Court that there was no specific demand put forth by the 1st accused. The purpose for which the shadow witness was examined, is only to show before the Court that allegations made by the complainant at Ex.P. 18 are not false. The moment shadow witness gives evidence, that he does not know what was the instructions passed on to the complainant by the Police Inspector, P.W.No.8, the entire case set up by the prosecution falls to the ground like heap of cards. The first accused counsel relevantly elicited the admissions which are extracted below, which clearly goes to show that this PW. 1 who was entrusted with the work of over hearing the conversation that takes place between the complainant and the 1st accused is not successful in that direction. That 58 Spl.C.C. No.306/2010 admission given by the said witness is extracted hereunder:
" It is true to suggest that neither I read the contents of Ex.P. 1 to P.5 nor the Lokayuktha police read over to me. It is true to suggest that I do not know the contents of Ex.P. 1 to P.5.....It is true to suggest that since, I did not go inside the chamber of accused No.1, I do not know what conversation took place between the accused No.1 and the complainant."
34. So, the entire exercise undertaken by the complainant in writing Ex.P. 16, has turned out to be a futile exercise. Now, another question that may crop up is how can PW. 5 claim that she is unaware of certain developments that took place in the office of the 1st accused. In this regard, the counsel for the 1st accused drew the attention of this Court to Ex.P. 7, which is the copy of the cheque 59 Spl.C.C. No.306/2010 prepared by the 2nd accused, so also another cheque for Rs. 55,92,869/-. According to the complainant, the 1st accused is supposed to have conveyed to him that if the demanded bribe is not given to them, then they would only issue the awarded compensation amount by way of crossed cheque, but they would withhold the TDS amount and certificate. But, when these two documents which I have referred just now are looked into, which was also subscribed to PW. 5 that she received both the cheques so it nullifies the stand of the complainant in this regard. Another contention which was tried to be highlighted by the 1st accused counsel was that, when the cheque was ready on 17-10-2010, where is the question of putting forth the demand for bribe on the next day i.e. on 18-10-2010. Of course, 60 Spl.C.C. No.306/2010 here the slight change seems to be that even though as per the directions of the 2 nd accused, 1st accused prepared both the documents i.e. the cheque and the TDS certificate, which was withheld by the 2nd accused which was not handed over to PW. 1 till that bribe amount paid. As I have said earlier, this version of the prosecution can be accepted if they prove that there was an unequivocal demand put forth by the accused Nos. 1 and 2 for illegal gratification. Under such circumstances, the evidence of PW. 1, shadow witness has failed to corroborate the contents of Ex.P. 16 and contents of Exs P2 and 3.
35. Coming to the evidence of PW. 2 Mallikarjunappa, who was also the Asst. Statistical Officer in Zilla Panchayath, 61 Spl.C.C. No.306/2010 Bengaluru, in his examination-in-chief, all the material documents got marked including the identification of material objects. But, in the cross-examination, again this witness gives admissions which only have shown that the purpose for which their assistance was sought was not rendered voluntarily by them. Initially, this witness disowns about conducting entire trap but towards the end, there is some admission in respect of seizing of MO No.1. in the backside pant pocket of the said accused. As I have said earlier, the entire assistance rendered by PW. 2 cannot be considered helpful to the prosecution as there was no evidence or admission in his evidence to show that there was a demand from the side of the accused No.s 1 and 2 for an illegal gratification to show favour and that in reality 62 Spl.C.C. No.306/2010 that amount was found with the 1 st accused. No where in the entire evidence of PW. 3, there is any evidence which show that there was a demand from the side of the accused Nos. 1 and 2. Of course, this PW. 2 is not a shadow witness. This Court cannot expect such evidence. It can be summed up by saying that this evidence tendered by PW. 2 failed to instill the confidence in the mind of this Court that as there was a demand, so CW.1 handed over Rs. 1,00,000/- which was found in the pant pocket of 1st accused subsequently got identified as MO.1.
36. Coming to the evidence of PW. 8, who is the Dy.S.P. and also the Investigating Officer, who conducted the investigation and focused and attached much importance to the 63 Spl.C.C. No.306/2010 conversation that took place between complainant and the 1st accused. This PW. 8 heavily banks upon those enscripted CDs. which are said to have contained those conversations. When those documents which are found on Ex.P. 4 to P.6 are gone through, the total cumulative effect of them show that virtually there was no demand for bribe at all.
37. Apart from going into these conversations, when we refer the whole evidence given by PW. 1, he disowns these documents. This was also highlighted by the 2nd accused counsel that these documents cannot be relied upon including the CDs. placed before this Court as the Investigating Officer has not properly followed the procedure and no certificate as required under Sec.65B of the Indian Evidence 64 Spl.C.C. No.306/2010 Act is not placed before this court by the Investigating Officer. In this regard, the counsel for the 2nd accused relies upon the decision reported in AIR 2015 SC 180 in the case of Anvar P.V. Vs. P.K.Basheer, wherein the Hon'ble Apex Court held as under:
Election - Corrupt practice - Validity of election - Sections 65B and 100(1) (b) of Representation of People Act, 1951 - Present appeal filed against order whereby High Court dismissed election petition holding that corrupt practices pleaded in petition were not proved and, hence, election could not be set aside under Sec.100(1)(b) of Act - Whether Appellant had proved any corrupt practice against respondent for setting aside his election - Held, in case of CD, VCD, ship, etc., same shall be accompanied by certificate in terms of Section 65B of Evidence Act obtained at the time of taking document, without which, secondary evidence pertaining to electronic 65 Spl.C.C. No.306/2010 record, is inadmissible - It was evident that speeches, songs and announcements were recorded using otherj instruments and by feeding them into computer, CDs were made therefrom which were produced in Court, without due certification - Appellant admittedly had not produced any certificate in terms of Section 65B in respect of CDs, therefore, same could not be admitted in evidence - Thus, whole case set up regarding corrupt practice using songs, announcements and speeches fall to ground - No evidence to prove that printing and publication of leaflet was made with consent of Respondent or his election agent - In such circumstances, it could not be said that there was complete chain of circumstances which would lead to reasonable inference on consent by respondent with regard to printing of leaflet - Appeared that that there was missing links, evidence available was also not cogent and credible on consent aspect of Respondent - No case for Appellant that any corrupt practice had been 66 Spl.C.C. No.306/2010 committed in interest of returned candidate by agent other than his election agent - Therefore, appellant had not proved corrupt practice against Respondent -Appeal dismissed.
38. On similar principles, one more decision was relied on by the 2nd accused counsel reported in AIR 2010 SC 965 in the matter between Tukaram S.Dighole Vs. Manikrao Shivaji Kokate, wherein the Hon'ble Apex Court held as under:
" It is well settled that tape-
records of speeches are
"documents" as defined in
Section 3 of the Evidence Act and stand on no different footing than photographs. See: Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.4. MANU/SC/ 0277/1975 : (1976) 2 SCC 17. There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand 67 Spl.C.C. No.306/2010 information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasized that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence".
39. And contends that when the Investigating Officer has failed to produce certificate as contemplated under Sec.65B of the Evidence Act, no sanctity can be attached to either CD 68 Spl.C.C. No.306/2010 or any electronic evidence. So, he relegates these electronic documents/evidence to a secondary position branding them as not worthy of appreciation. According to me, the counsel for the 2nd accused was right in highlighting before the Court that when it was the direction of PW. 8 to produce Ex.P. 16 with recorded voice, he ought to have taken all care to see that any electronic evidence produced before this Court is enclosed with Sec.65B of the Indian Evidence Act, certificate issued by the competent authority or a person. In the instant case, no such thing has been done. So according to me even if we consider the entire evidence of PW. 8 in respect of the alleged demand made by the accused No.1 and 2, there is no such material which is forth coming which show that indeed there was a demand. 69
Spl.C.C. No.306/2010 Now, when we consider the oral testimony of DW.1 and the cross-examination of PW. 4 by name one Shankarappa, according to them, so far as 1st accused is concerned, he is only the case worker. He puts up the file, prepares the cheque and he is not the disbursing authority. This aspect is not disputed by anybody. When such being the case, question arises that how can the 1st accused demand for a bribe. 2nd aspect of the matter is as per PWs. 1 and 2, the entire team constituted to lay trap did not visit the chamber of the 2nd accused on that day. When we go through the material evidence, it is their consistent say that PWs.1 and 2 entered the chamber of the 1st accused. So, the role of the 2nd accused in demanding the bribe is not seen at all. Likewise, most important aspect is, but for claiming that when for the 1 st time, 70 Spl.C.C. No.306/2010 CW.1 met 2nd accused who demanded the bribe and said to have directed him to approach the 1st accused to settle the bribe amount, so in this regard there is no piece of material which show that more than once CW.1 established contact with the 2nd accused directly or through any other mode. Of course, in the evidence of PWs.1 and 2, one can gather that for more than once CW.1 has come in contact with the 1st accused. In this case, the evidence of PWs.3 and 4 becomes more important, because, they clarified the role of the 1 st accused. The evidence of PW. 4 is so clear that this 1st accused has not been vested with any power either to handover the compensation cheque or TDS certificate to any beneficiary muchless CW-1 or PW5.
71
Spl.C.C. No.306/2010
40. In the instant case, another doubt raising circumstance is that, when it is a definite stand that of PW5, she has executed the power of attorney in favour of A.Rukmangadha, whereas the question of either she or with her husband approaching the KIADB authorities to claim a cheque. Because, it is not th case of the prosecution that GPA furnished by CW.1 before that authority was not accepted. So, here, the inconsistent approach on the part of the prosecution in not answering the query as to in spite of executing GPA, why they handed over the cheque to that lady,PW-5. to which no explanation is forth coming at all. Under such circumstances, these were the untouched areas/aspects which were not considered by both the prosecution as well as accused persons. The prosecution shall have to place 72 Spl.C.C. No.306/2010 the material to show that to what extent they relied upon the GPA executed by Smt.Kamala in favour of A.Rukmangadha and why did PW. 5 approached KIADB for collecting her cheque directly. So these events narrated by the prosecution has raised questions as to the claim of CW.1 in respect of his allegations made against both the accused. In fact, when PW. 5 and 8 were cross-examined, it was suggested to them that this CW.1 is a tout and a name lender so the Karnataka Lokayuktha for laying trap like the present one takes his help. Even though this suggestion was denied by PW. 5 and 8, but the role played by CW. 1 in giving Ex.P. 16 cannot be said that it is free from any suspicion. Apart from executing GPA, what was the need for PW. 5 to approach the KIADB office at the fag end only to collect the 73 Spl.C.C. No.306/2010 cheque amount is also not spoken to by that lady. Under such circumstances, I have no hesitation in coming to the conclusion that when there was no demand for bribe attaching importance to the alleged trap or seizing of MO.1 from the custody of 1st accused cannot by themselves show that both accused persons have committed an offence punishable under Sec.7 of the the Prevention of Corruption Act, 1988. Accordingly, I have answered this point No.2 in the negative.
41. POINT NO.3:- The main allegation made by PW. 8 against accused Nos.1 and 2 are under Sec.13(1)(d) and Sec.13(2) of the Prevention of Corruption Act, 1988 that means by demanding and accepting the bribe amount that has amounted to criminal misconduct on 74 Spl.C.C. No.306/2010 the part of the public servant. Apart from this there was a criminal conspiracy hatched by both accused persons. So, according to the IO, this has to be viewed very seriously. This Court has already come to the conclusion that as the demand for bribe both from the point of view of Accused Nos.1 and 2 was not proved so the question of considering MO.1 found in the pant pocket of accused No.1 as illgotten money does not arise at all.
42. Both the 1st and 2nd accused took up contention that so far as MOs. No.4, 12 to 14 are concerned, they cannot be considered in the eye of law because as admitted by P.W. 8 himself, there is no separate certificate either issued or obtained under Sec.65B of the Indian Evidence Act. Likewise, the counsel for the 1 st 75 Spl.C.C. No.306/2010 accused took serious objections to Ex.P. 4 to P.6 contending that they also have no evidentiary value, because, both CW.1 A.Rukmangadha and PW.8 have not followed the proper procedure. In fact, in this regard, the counsel appearing for the 2nd accused vehemently put forth his argument stressing hard the fact that, that part of electronic evidence cannot be considered, because the IO has failed to place a separate certificate under Sec.65B of the Indian Evidence Act. In this regard, he relied upon the decision reported in AIR 2015 SC 180 in the case of Anvar P.V. Vs. P.K.Basheer. On similar set of principles as referred earlier, one more decision relied upon by him was AIR 2010 SC 965 in the matter between Tukaram S.Dighole Vs. Manikrao Shivaji Kokate. According to him, 76 Spl.C.C. No.306/2010 the very purpose of permitting the IO or party to place electronic evidence/record is to help the Court in elucidating or analyzing the evidence so as to arrive at a just conclusion. In the instant case, according to the 2 nd accused, when CW.1 is no more, the prosecution has failed to place his evidence. In the absence of proving Ex.P. 16 by him, that document is without any corroboration. Likewise, when we go through the evidence of PW. 5, Smt.Kamala, who is the beneficiary of the compensation amount, virtually, she displayed her ignorance in respect of the alleged demand and acceptance of the bribe by accused Nos. 1 and 2. More over, when Ex.P. 16 states that CW.1 was demanded bribe both by accused Nos. 1 and 2 for the purpose of issuance of compensation cheque and TDS 77 Spl.C.C. No.306/2010 certificate, this was not supported by PW. 5 herself, because it is her case that she along with her husband visited the office of accused No.1 and 2 situated at the Gandhi Nagar, III Floor, and collected the cheque as well as the TDS certificate. So, there is a complete contradiction in the contents of Ex.P. 16 and the evidence of PW. 5.
43. So far as the contents of Ex.P. 3, which is the trap mahazar is concerned, if the entire document is gone through, this Court is unable to find a sentence in that document as to who out of accused Nos.1 and 2 demanded bribe first. No doubt, Ex.P. 3 is subsequent to the trap. But, when the contents of Ex.P. 4 to 6 are gone through, these conversations directly did not disclose as to there was a 78 Spl.C.C. No.306/2010 demand for bribe. During the course of arguments, the learned Public Prosecutor submitted that the conversations which are enlisted in Ex.P. 4 to 6 will have to be read as a one whole document, then only question of coming to a fair assessment as to whether both the accused demanded bribe or not, will be known. Even if Ex.P. 4 to 6 are concerned, they failed to get proper support from the right persons i.e. PW. 8, the Investigating Officer. In fact, in his cross-examination, there are admissions which say that there was no direct demand for bribe from both accused Nos.1 and
2. Some of the admissions are extracted as under:
" CW.1 has not stated in complainant, Ex.P.16 the exact dates of approaching accused No.2. I have not ascertained the said dates. The date of having met 79 Spl.C.C. No.306/2010 after 15 days shown in Ex.P. 16 is also not ascertained by me. So also, in my investigation, the dates of having met 10 to 12 tims, shown in last paragraph of page No.2 of Ex.P. 16 has not been ascertained by me. ... I have not shown PW. 4, Sri.Shankarappa, as accused in this case as in Ex.P. 16, it was mentioned that accused No.1 said that said Shankarappa was demanding amount for himself i.e. accused No.1 and Shankarappa.
44. The sum and substance of this evidence clearly show before this Court that when CW.1 tendered Ex.P. 16 along with the recorded conversations said to have taken place between him and the 1st accused without verifying the same, Ex.P. 16 came to be mechanically registered which was followed by registering of FIR at Ex.P. 17. In fact, in the cross-
examination of PW. 8, when it was suggested to this witness that before registering the case, 80 Spl.C.C. No.306/2010 the IO shall have to hold a preliminary enquiry, this suggestion has been denied by PW. 8. I am unable accept this aspect, because, if according to PW. 8 as per Ex.P. 16 both accused have put forth their demand for bribe that ought to have been supported by PW. 5.
In this regard, when the evidence of PWs.3 and 4 are gone through, they turned hostile and partially have been treated as hostile witnesses. Especially PW. 4, who is an eye witness to the trap has fully failed to support the case of the prosecution. The evidence of PW. 3 is in no way helpful to the case of the prosecution, instead of helping the prosecution, both these witnesses have come out with a new aspect that they were forced to give their statement by the Lokayuktha police.
This stand was also supported by the 1 st 81 Spl.C.C. No.306/2010 accused, when he was examined as DW.1. In fact, in the cross-examination of DW.1, the learned Public Prosecutor failed to show before the Court that the statements recorded by the 1st accused at Ex.P. 10 and P.11 were the voluntary statements of that accused. In this regard, when the prosecution examined the learned Judicial Officer at PW. 10, in her examination-in-chief, she spoke about recording of the statement under Sec.164(5) of the Cr.P.C. But, in the cross-examination, an effort was made by both 1st and 2nd accused counsel that those statements were made to be given before the Court against their Will by the Lokayuktha police. In this regard also, the learned counsel for the 2nd accused submitted that when this Court considers the Sec.164 Cr.P.C. statement for its appreciation, they 82 Spl.C.C. No.306/2010 cannot be done independently because, they can be considered for appreciation of evidence, only when they are further corroborated. In this regard, the 2nd accused counsel relies upon decisions which were reported in 2003 Cri.LJ 3253 in the matter between Guruvindapalli Anna Rao & three Ors. Vs. State of Andhra Pradesh, wherein the Hon'ble High Court has held as under:
" Criminal - unlawful assembly- Sections 148, 149 and 302 of Indian Penal Code, Section 145 of Evidence Act and Section 164 of Criminal Procedure Code
-appeal made by four accused against conviction for charges framed under Sec.302 in combination with Section 149 by Sessions Judge - offence is of unlawful assembly with common object of murdering deceased - Public Prosecutor did not elicit injuries found on body of deceased from - mouth of doctor acting as prosecution witness (PW).11 - mere signing 83 Spl.C.C. No.306/2010 of postmortem certificate by PW. 11 is not enough evidence - Under Section 145 statements of witnesses recorded by Magistrate under Sec.164 cannot act as substantive piece of evidence but only for corroboration - also charges should have been framed under Section 148 initially-held, prosecution failed to connect charges against accused and thereby appeal is allowed."
45. On similar analogy another decision reported in 2006 Crl.LJ 4813 in the case of T.Diwakara & Others Vs.State of Karnataka, wherein the Hon'ble High Court of Karnataka has held as under:
" Criminal Procedure Code, 1973 (Act No.2 of 1974) -Section 164 -
Statement recorded under Legality of conviction - Appeal against - Held, statement recorded under Sec.164 of Criminal Procedure Code does not have any better legal status than the one recorded under Section 161(3) of Criminal Procedure Code - Conviction set 84 Spl.C.C. No.306/2010 aside. Appeal allowed."
46. And lastly, AIR 1960 SC 490 in the matter between State of Delhi Vs. Ram Lohia, wherein the Hon'ble Apex Court held as under:
Criminal - Evidence of witness es
- Section 5(4) of the Indian Official Secrets Act -Respondent was proprietor of a firm - He was charged for obtaining a secret file of the Government containing noting relating to illegal import of certain goods and the penalties which it was proposed to award to offenders - Respondent was interested in the secret file in question as there were at the time proceedings pending against his firm for illegal imports of certain goods - He was convicted by Trial Court for offence under Sec.5(4) and a fine of Rs. 1000/- was imposed - Appeal dismissed by Addl.Sessions Judge - On appeal High Court set aside conviction on the ground of absence of material particulars connecting accomplice to 85 Spl.C.C. No.306/2010 connect respondent with crime -
Hence, present appeal
-witnesses found unreliable on examination - The various statements made by witness es in cross-examination before and after the framing of the charge clearly demonstrate him to be an utterly untrustworthy witness
-held dangerous to convict respondent on basis of evidence of witness -Appeal dismissed.
47. The counsel for the 2nd accused by relying upon the above decisions contended that Sec. 164 Cr.P.C. statements cannot be on its own considered for its evidentiary value. On the other hand, they requires further corroboration. So far as the principles enunciated by the Hon'ble Apex Court and the Hon'ble High Court of Karnataka in the above said decisions are aptly applicable to the case on hand. No doubt, in the instant case, some of the statements recorded by the Judicial Officer 86 Spl.C.C. No.306/2010 under Sec.164(5) of Cr.P.C. are available and placed by the IO but they are not corroborated. In spite of considering them, as I have said that there are primary defects on the part of the prosecution in proving the fact that there was a demand for bribe from the side of the accused persons. Some of the witnesses who have given their statements have partly turned hostile and their statements have not been corroborated.
48. So far as the evidence of other official witnesses who have spoken about issuing sanction order have been discussed by me in my preceding paras. Having gone through the materials in spite of MO.1 coupled with the chemical solutions prepared by the IO while laying the trap have shown that MO.1 was 87 Spl.C.C. No.306/2010 found in his pant right side rear pocket. But, mere possession cannot show that it was a bribe amount on account of demand from his side. The second aspect of the matter is that the role of PW. 4 is not seen at all. Another important aspect which was highlighted by the 2nd accused counsel was that IO has not seized the mobile phone of CW.1 through which, he claims to have recorded the voice of both the accused. In fact, it was one of the main source on which Ex.P. 16 came to be registered. This PW. 8 in his evidence also admits that he has not either secured or produced Sec.65B certificate as contemplated under the Indian Evidence Act. Some of his admissions are extracted hereunder:
" It is false to suggest that, I have planted C.D., MO.12, for the purpose of this case.88
Spl.C.C. No.306/2010 I got MO.12 burnt during trap i.e. 28-06-2010 between 2.30 PM To 9.45 PM. I have not given the source of recording MO.12 to the Court. I have not produced certificate under Sec.65B of Indian Evidence Act. ... The conversation recording was done on 23-06-2010 as shown in complaint. I have not verified the date of creation of audio file. I have put the said C.D. given by complainant into our computer system, while getting the transcription.... I have not taken the print of the same and not mentioned in entrustment mahazar. I have not obtained any certificate u/s.65B of Indian Evidence Act from complainant and I too have not given any certificate.
49. These were the areas where the IO should have concentrated at the time of investigation. But, for the reasons best known, it was not done. In fact, the ocular evidence, which was 89 Spl.C.C. No.306/2010 available of him only speak about the trap, but not the pre complaint time, when the prosecution is able to convince this Court that both accused demanded CW.1 for a bribe amount to show any favour, then only considering subsequent event will arise. The entire focus and thrust seems to be on trap rather than Ex.P. 2, which is the entrustment mahazar or pre-trap events. Under such circumstances, when the prosecution has failed to prove that there was any misconduct muchless criminal misconduct, question of finding fault with both the accused persons does not arise at all.
50. It was also another attack on the part of the prosecution that both accused Nos.1 and 2 hatched a criminal conspiracy. But in this 90 Spl.C.C. No.306/2010 direction, neither the I.O. nor the complainant have led any evidence. When there is nil material to show that this complainant for more than once came in direct contact with the 2nd accused so this question will not arise at all. Moreover, when PW-5 deposed that at the time of receiving the compensation cheque/s nobody muchless accused Nos.1 and 2 demanded any bribe this virtually settled the score on hand. So the question of hatching any criminal conspiracy by both accused in this case cannot arise at all. Accordingly, I answer this point No.3 in the negative.
51. POINT NO.4:- Having gone the entire material, the prosecution failed to place befitting materials to draw the conviction of the accused persons for the alleged offences. In 91 Spl.C.C. No.306/2010 fact some of the available materials have shown that important elements which are expected that are to be followed by the IO have not been done and the investigation seems to have been undertaken rather in a casual manner and it looked more mechanical in nature. Hence, having found demerit in this case, I proceed to pass the following:
O R DE R The accused Nos.1 and 2 are found not guilty of the offences alleged against them.
Acting under Sec.235 (1) of Cr.P.C., the accused Nos.1 and 2 are hereby acquitted of the offences punishable under Secs.7, 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988 r/w Sec.120B of the Indian Penal Code.
In view of Sec.437A of Cr.P.C., the bail and surety bonds of the accused 92 Spl.C.C. No.306/2010 Nos.1 and 2 shall stand extended for a further period of 6 months by obtaining fresh P.B. and S.B. from them.
M.O. No.1 is ordered to be confiscated to the State after completion of the appeal period. M.Os.No.2, 3, 5, 6 to 11, 16 and 17 are to be destroyed after completion of the appeal period. M.Os. No.4 and 12 to 14 shall be preserved in this file alongwith other exhibits. M.O. No.15 shall be returned to the Karnataka Lokayuktha after completion of the appeal period.
(Dictated to the judgment-writer, transcripted/typed by her and then corrected and pronounced by me in the open Court on this the 21 st DAY OF OCTOBER 2021).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
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Spl.C.C. No.306/2010 A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Vishwanath.
PW.2: Mallikarjunappa S. PW.3: Smt.N.Lakshmi.
PW.4: T.Shankarappa.
PW.5: Smt.Kamala.
PW.6: Dr.Reju M.T. PW.7: T.Shyam Bhat.
PW.8: K.C.Lakshminarayana. PW.9: Basavaraj Govingidad. PW.10: S.Nagashree.
PW.11: Mallikarjun.
PW.12: Narasimhamurthy P. LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Currency notes sheet. Ex.P.1(a): Signature of PW.1 Ex.P.1(b): Signature of PW.2 Ex.P.2: Entrustment mahazar of PW. 1. Ex.P.2(a): Signature of PW.1 94 Spl.C.C. No.306/2010 Ex.P.2(b): Signature of PW.2 Ex.P.2(c): Signature of PW.8 Ex.P.3: Trap mahazar Ex.P.3(a to c): Signatures of Pws.1, 2, & 8. Ex.P.4: Transcription of conversation. Ex.P.4(a to c): Signatures of PWs.1, 2 & 8 Ex.P.5: Transcription of conversation. Ex.P.5(a & b): Signatures of Pws.1 & 8.
Ex.P.6: Transcription of conversation. Ex.P.6(a & b): Signatures of Pws.2 & 8. Ex.P.7: Certified copy of cheque issued by LAO. Ex.P.8 & 9: Acknowledgements. Ex.P.10: Statement of accused No.1. Ex.P.10(a & b): Signatures of PWs.2 & 8. Ex.P.11: Statement of the accused. Ex.P.11(a & b): Signatures of PWs.2 and 8. Ex.P.12 : Statement of PW.3. Ex.P.13: Statement of witness u/s.164 of Cr.P.C. Ex.P.13(a & b): Signatures of PWs.9 & 10. Ex.P.14: Sanction order for A2. Ex.P.14(a): Signature of PW.6. Ex.P.15: Sanction order for A1. Ex.P.15(a): Signature of PW7.95
Spl.C.C. No.306/2010 Ex.P.16: complaint.
Ex.P.16(a): Signature of PW.8. Ex.P.17: Documents pertaining to acquisition of land for Metro Rail Project, notifications, preliminary and final notifications.
Ex.P.18: F.I.R.
Ex.P.18(a): Signature of PW. 8. Ex.P.19: Rough sketch.
Ex.P.19(a): Signature.
Ex.P.20: TDS Certificate. Ex.P.21: Transcription. Ex.P.21(a): Signature of PW8. Ex.P.22: Details of Accused No.2. Ex.P.22(a): Signature of PW8. Ex.P.23 : Written statement of PW.4. Ex.P.24: Service Particulars of A1 & A2. Ex.P.25: Statement and covering letter. Ex.P.26: Chemical examination report. Ex.P.26(a & b): Signatures of PWs.8 & 9 Ex.P.27: Call details of complainant & A1 and A2. Ex.P.28: Description of seized articles. Ex.P.28(a): Signature of PW. 9. Ex.P.29: Statement of Smt.Lakshmi u/s.164 of Cr.P.C.96
Spl.C.C. No.306/2010 Ex.P.29(a & b): Signatures of Lakshmi & PW.10. Ex.P.30: Statement of Sri.Balaraj u/s.164 of Cr.P.C. Ex.P.30(a & b):Signatures of Balaraj & PW. 10. Ex.P.31: Statement of Shashikumar u/s.164 of Cr.P.C.
Ex.P.31(a & b): Signature of Shashikumr & PW.10. Ex.P.32: Statement of Rukmangadha u/s.164 of Cr.P.C.
Ex.P.32(a & b): Signatures of Rukmangadha & PW. 10. Ex.P.33: Sanction order to A1. Ex.P.33(a): Signature of PW. 11. Ex.P.34: ADGP memo to PW. 12. Ex.P.34(a): Signature of PW. 12. Ex.P.35: Certified copy of Board resolution. Ex.P.36: Office notesheet. Ex.P.36(a): Signature of DW.1 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Currency Notes 1000 X 100 = 1,00,000/- MO.2: Sample solution.
MO.3: Pink colour turned solution. MO.4: CD MO.5: Sample Solution 97 Spl.C.C. No.306/2010 MO.6 & 7: Right and left hand finger dip sample solutions.
MO.8: Black Stripe pant.
MO.9 & 11: Sample solution and colour turned solution.
MO.10: Right side back portion wash of the pant. MO.12 CD. Trap panchanama. MO.13 : CD pertaining to conversation between complainant & A1.
MO.14: CD pertaining to recording of statement of A1. MO.15: 'D' Metal seal.
MO.16 & 17: Left hand finger wash of A1.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1: B.M.Nagabhushan.
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Statement of Shankarappa u/s.161 of Cr.P.C. Ex.D.2: Arrest intimation of A1.
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.