Bangalore District Court
By Police Inspector vs Rajagopal on 13 March, 2018
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
Dated: This the 13th day of March 2018
Spl. C.C.No.107/2012
The State of Karnataka,
COMPLAINANT By Police Inspector, Karnataka
Lokayuktha Police Wing, City
Division, Bengaluru.
(Rep. by Spl.Public Prosecutor)
-vs-
ACCUSED 1. Rajagopal
Revenue Inspector-BBMP
Ward No.5,
Byatarayanapura
Sub-Division, Thanisandra,
Bengaluru.
(By Sri P.N.Hegde, Advocate)
2. Peersab,
Security Guard, Excel
Security Agency, BBMP
Office, Byatarayanapura Sub
Division, Thanisandra,
Bengaluru.
(By Sri K.B.K.Swamy-Advocate)
2 Spl.C.C.No.107/2012
1. Nature of Offence Offence punishable under Sections
7, 8, 13(1) (d) r/w 13 (2) of the
Prevention of Corruption Act,
1988.
2. Date of
Commission 28.09.2011
of offence
3. Date of First
Information Report 28.09.2011
4. Date of arrest 28.09.2011
5.Date of
commencement of 24.06.2017
recording of
evidence
6. Date of 03.08.2017
closing of evidence
7. Date of
pronouncement of 13.03.2018
Judgment
The accused No.1 & 2 are
8. Result of the case acquitted under Section 235(1) of
Cr.P.C. of the offence punishable
under section 7, 8 13(1) (d) r/w
13(2) of Prevention of Corruption
Act, 1988.
3 Spl.C.C.No.107/2012
JUDGMENT
The accused No.1 & 2 are charge sheeted for the alleged offence punishable under Sections 7, 8, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988.
2. The prosecution case is that, CW1-Gopal Rao, in order to get B-Khata in respect of site No.18 & 19 of Agrahara Layout, Yelahanka, Bangalore, had filed an application on 20.09.2011, in the BBMP Office, Byatarayanapura Sub-Division, Thanisandra. After some days, when CW1 met Rajgopal Rao- Revenue Inspector(accused No.1) in connection with getting B-khata in respect of the sites, he demanded illegal gratification of Rs.4,000/-. Since CW1 was not willing to pay the bribe amount, he sought for some time and came back. On 26.9.2011, CW1 along with his friend-Rajanna(CW2), approached the Lokayuktha Police and informed the matter, who in turn gave Voice Recorder to record the conversation. On the same day, CW1 & CW2 met the accused No.1 and spoke to him about the work. Accused No.1 has insisted to pay Rs.4,000/- as illegal gratification. CW1 has pleaded difficulty. Accused No.1 told him that if the bribe amount is not paid, his file will not be moved. After bargain, the bribe amount was scaled down to Rs.3,000/-. CW1 recorded the conversation. On 28.9.2011, at about 12.30 PM, CW1 presented written information as per Ex.P1 before CW22-Puttaswami H.P., Police Inspector, Karnataka Lokayuktha, Bangalore, who arranged for 4 Spl.C.C.No.107/2012 the trap. CW1 produced Voice Recorder along with the complaint.
3. CW3-D.Kalaiah, CW4-Ananthanarayana, the employees of Director of Industries & Commerce, were secured as witnesses to the trap. The complainant produced Rs.3000/- (6 currency notes denomination of Rs.500/-). The serial number of the currency notes was recorded as per Ex.P4. The said currency notes were smeared with phenolphthalein powder. CW4-G.S.Ananthanarayana after verifying and counting the tainted currency notes placed it in the shirt pocket of the complainant. Both hand fingers of CW4 were washed in sodium carbonate solution. The said solution becomes pink colour. The Digital Voice Recorder produced along with the complaint was played in the presence of the witnesses. The contents of the Digital Voice Recorder were converted into CD and transcript into writing. The complainant was instructed to approach the accused, speak about the work and to give the amount only on demand. He was further instructed to give signal by giving a miss call if the accused received the amount. Voice Recorder and Button Camera were given to the complainant with an instruction to switch it on when he is going to meet the accused to give money and to record the conversation/scene. At the request of the complainant, CW2- Rajanna was asked to act as shadow witness and to observe what transpires between the complainant & the accused. The 5 Spl.C.C.No.107/2012 entire pre-trap proceedings were covered with video. Entrustment Mahazar-Ex.P2 was prepared and obtained the signature of the witness.
4. On the same day, at about 2.40 PM, CW22 along with the Trap Team Members, complainant, CW2-Rajanna & two Pancha-witnesses left for Office of the Assistant Revenue Officer, BBMP, Byataratanapura, Thanisandra. While proceeding towards Thanisandra, the complainant made a phone call to the accused by switching on the loud speaker. The accused told the complainant to come to Thanisandra. The said conversation was recorded in the Voice Recorder. The vehicle was parked at the distance of 100 meters. The complainant & his friend-Rajanna went inside the BBMP Office. The remaining Trap Team Members were standing outside the BBMP office waiting for the signal from the complainant. At about 3.40 PM, CW2-Rajanna gave pre-instructed signal. He led the Trap Team Members to BBMP office. The complainant pointed out accused No.1 & 2. CW22 disclosed his identity and informed the purpose of visit. On being questioned, accused No.1 & 1 have disclosed their identity. The complainant informed the Investigating Officer that, as per the instructions of accused No.1, he gave the money to accused No.2, who received and kept it in his right side hip pocket. Both the hand fingers of accused No.2 were washed separately in sodium carbonate solution. The said solution becomes pink colour. The 6 Spl.C.C.No.107/2012 tainted currency notes of Rs.3000/- (MO12) was recovered from accused No.2. The said currency notes were got verified and tallied with the currency notes sheet. The pant of the accused No.2 was seized. The file pertaining to the complainant-Ex.P7 was secured through CW10-Puttarajanna, ARO. The Attendance Register was seized. The accused persons were brought to Lokayuktha Police Station and continued the trap proceedings. The Spy Camera & Voice Recorder given to the complainant at the time of trap was played in the presence of the witnesses and contents of it were converted into CD & transcript into writing. Entire trap proceedings were covered with video. The contents of the video were converted into CD. All the seized articles were sealed with Metal Seal by using English letter 'D'. The Metal Seal was handed over to CW3-Kalaiah and obtained an acknowledgment. Trap Mahazar was prepared as per Ex.P3 and obtained the signature of the witnesses. The Investigating Officer recorded the statement of the complainant & his friend Rajanna. The accused No.1 & 2 gave their statement in writing as per Ex.P13 & P14. The Investigating Officer has arrested accused No.1 & 2 by following the due procedure and produced them before the Court. The Investigating Officer has recorded the statement of the witnesses. The Investigating Officer prepared Rough sketch as per Ex.P.17. He received the Chemical Examination Report as per Ex.P15, Spot Sketch as per Ex.P16, service particulars of accused No.1 as per Ex.P18 and mobile call details of accused No.1 as per Ex.P19. After 7 Spl.C.C.No.107/2012 completion of investigation, the Investigating Officer sent the Final Report to the Competent Authority seeking sanction to prosecute the accused No.1. After receiving Sanction Order (Ex.P5) from the Competent Authority, CW22 has filed the charge sheet against the accused No.1 & 2 before the court on 12.03.2012 for the offence punishable under Sections 7, 8, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988.
5. My Predecessor-in-Office took cognizance of the offence and issued process against the accused No.1 & 2. In pursuance of the summons, accused No.1 & 2 appeared before the Court. Accused No.1 & 2 were enlarged on bail.
6. After hearing, the charge was framed against the accused No.1 & 2 for the offence punishable under Sections 7, 8, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988. The charge was read over and explained to the accused No.1 &
2. The accused No.1 & 2 pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution has examined in all 4 witnesses as PWs-1 to 4 and got marked 19 documents as Ex- P1 to Ex.P-19 and 12 Material Objects as MO-1 to 12. The accused No.1 & 2 were examined under section 313 of Cr.P.C. for the purpose of enabling them to explain the circumstances existing against them. The accused No.1 & 2 denied all the incriminating evidence available against them. The accused 8 Spl.C.C.No.107/2012 No.1 & 2 have not chosen to lead any defense evidence. However, during the course of cross-examination of prosecution witnesses, certified copy of the deposition of PW1 in D.E.401/2013 was got marked as Ex.D1 on defense side. I have heard the arguments and perused the records.
8. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 being a public servant working as Revenue Inspector, BBMP Ward No.5, Byatarayanapura Sub-Division, Thanisdandra, Bangalore, on 28.09.2011 at about 3.40 PM, demanded and accepted illegal gratification of Rs.3,000/-
through accused No.2 a private person, from CW1-Gopal Rao(complainant), as a motive or reward for showing an official favour in the matter of getting 'B' Khata in respect of site No.18 & 19 of Agrahara Layout, Yelahanka, Bangalore, and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 being a public servant, working as Revenue Inspector, BBMP Ward No.5, Byatarayanapura Sub-Division, Thanisdandra, Bangalore, on 28.09.2011 at about 3.40 PM, in his office by abusing his position as public servant and by corrupt or illegal means and without public interest, obtained Rs.3,000/- through accused No.2 a private person, from the complainant as pecuniary advantage and thereby committed 9 Spl.C.C.No.107/2012 criminal mis-conduct punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 being a private person, on 28.09.2011 at about 3.40 PM, obtained illegal gratification of Rs.3,000/-on behalf of accused No.1 from the complainant as motive or reward for inducing the accused No.1 who being a public servant by corrupt or illegal means to do an official act or in the exercise of the official functions of the public servant to show an official favour to CW1-Gopal Rao in the matter of getting 'B' Khata in respect of the site No.18 & 19 of Agrahara Layout, Yelahanka, Bangalore, and thereby committed an offence punishable under Sec.8 of the Prevention of Corruption Act,1988?
4. What order?
9. My answer to the above points is as under:
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 the following:
REASONS
10. Point No.1 TO 3: For the sake of convenience and to avoid repetition of facts, I have taken Points No.1 to 3 together for consideration.
10 Spl.C.C.No.107/201211. The prosecution has examined CW1-B.J.Gopal Rao, as PW1. PW1 is the complainant. PW1 has deposed that, in the year 2002, he purchased two sites bearing No.18 & 19 in Agrahara layout, Bangalore. In the month of September 2011, he had been to BBMP office, Thanisandra Ward, in connection with getting 'B' Khata in respect of the sites purchased by him and met the accused No.1, who in turn demanded to pay Rs.4,000/- towards charges. He pleaded difficulty. Since he was not inclined to pay the money to accused No.1, along with his friend-Rajanna (CW2) approached the Lokayuktha Police, who in turn gave the Voice Recorder to record the conversation. Once again he met accused No.1 and spoken about the work. After negotiation, the bribe amount was reduced to Rs.3,000/-. Lokayuktha Inspector conducted pre-trap proceedings and prepared Entrustment Mahazar as per Ex.P2. Entire proceedings were covered by videograph. CW2-Rajanna was instructed to follow the complainant and to observe what transpires there. CW2-Rajanna was instructed to give message through his mobile phone, if the accused received the money.
12. PW1 has further deposed that at about 3.00 PM, they left for Thanisandra Ward, BBMP, wherein the accused was working. On the way to the office of the accused, he made a phone call to the accused No.1 and confirmed himself about his presence in the office. The said conversation was recorded. CW2-Rajanna and he went inside the BBMP office. The 11 Spl.C.C.No.107/2012 remaining Trap Team Members were standing outside the office. Accused No.1 came outside the office and went nearby tea stall situated by the side of BBMP office. CW2-Rajanna & he followed the accused No.1. He spoke to the accused No.1 and asked him to receive the amount. The accused No.1 told him not to give in this place. Once again he told the accused No.1 that, he brought the money with very difficulty, if he does not receive it, it will be spent. While climbing the stairs, accused No.1 asked him to give money to accused No.2 and returned to office. He gave the amount to the accused No.2, who in turn kept it in his right side pant pocket. CW2-Rajanna gave pre- instructed signal. Immediately Lokayuktha Police rushed to the spot. Lokayuktha Inspector was told by him that, he paid the money to accused No.2 as per the instructions of accused No.1. Lokayuktha Police apprehended the accused No.1 & 2. The tainted currency notes were recovered from accused No.2 and got tallied with the currency notes sheet. Thereafter, both hand fingers of accused No.2 were washed in sodium carbonate solution. The documents relating to change of B-Khata in respect of his properties, was seized from BBMP office. The accused No.1 & 2 were brought to Lokayuktha Police Station. The statement in writing of accused No.1 & 2 was obtained. The Button Camera given to him at the time of trap was played. Trap Mahazar was prepared as per Ex.P3.
12 Spl.C.C.No.107/201213. PW-1 has turned hostile only on two aspects i.e. first washing of hands and thereafter recovery of tainted currency notes. Secondly, identifying the accused No.1 by the superior Officer.
14. During the course of cross-examination of PW1 on behalf of the accused No.1, it is elicited that, he filed an application for getting 'B' Khata in respect of site No.18 & 19 of Agrahara layout, on 20.09.2011. The said application was addressed to Asst.Revenue Officer, Byatarayanapura Sub- Division, Bangalore, and it bears the seal & signature of ARO, Byatarayanapura Sub-Division. Since, he does not know reading & writing Kannada, at his request, accused No.1 filled the blank form. Since site No.18 & 19 of Agrahara Layout, was Revenue site and without getting 'B' Khata in respect of Revenue site, it could not have been alienated. As such, he filed an application in the year 2011, for getting 'B' Khata though he purchased the property in the year 2002. He pressed urgency while submitting application for getting 'B' Khata. Within 15 days from date of giving complaint to the Lokayuktha Police, he got 'B' Khata extract. He sold site No.19 of Agrahara Layout to his friend-Fareed within two years after getting 'B' Khata extract.
15. It is further elicited from PW1 that, CW2-Rajanna being his friend, accompanied him to BBMP office, Byatarayanapura Sub-Division while submitting application to 13 Spl.C.C.No.107/2012 get 'B' Khata, to Lokayuktha Police Station to file written complaint and at the time of trap. After filing application for getting 'B' Khata, CW2-Rajanna & he had discussion and thereafter both of them went to Lokayuktha Police Station for filing written complaint. He did not meet accused No.1 in between 20.09.2011 & 28.09.2011. He was under the impression that accused No.1 was the Competent Authority for issue of 'B' Khata.
16. It is further elicited from PW1 that, nobody accompanied him when he was going to meet accused No.1 for giving money, except CW2-Rajanna. BBMP Office Thanisandra, is situated in the first floor of the building. When he had been to the office of accused No.1 for giving money, he was busy with his work. CW2-Rajanna offered him to have coffee by saying that Revenue Inspector is also accompanying them. He had no knowledge about the conversation taken place between the accused No.1 & CW2-Rajanna before calling him for coffee. There was 15-20 minutes time gap when he met the accused No.1 in his office for the first time and they were going for coffee. Neither accused No.1 nor he spoke about money, till they went for coffee. After they had coffee and going back to the office, PW1 removed the amount from his shirt pocket and offered to the accused No.1. PW1 forced the accused No.1 to receive the money, but he did not receive. Accused No.1 was in his office when Lokayuktha Police arrived the spot. The place 14 Spl.C.C.No.107/2012 he offered the money to the accused No.2, was not directly visible to the Lokayuktha Police from the place where they were standing.
17. During the course of cross-examination of PW1 made on behalf of accused No.2, it is elicited that, BBMP Office, Thanisandra is situated in the first floor of the building, wherein the Officers & the employees are accommodated. Between 3.00 & 5.30 PM, public are permitted to visit BBMP office in respect of their work and grievances. At that time, lot of public, officials & Officers keep moving around. The Security Guard is accommodated in the entrance of the ground floor. There is a distance of 250 meters in between the place where the Security Guard was standing and the tea stall. The conversation taken place in the first floor of the building cannot be overheard by the persons standing in the ground floor or by the side of the road. Tea stall is not visible from the place where the Security Guard stands. The accused No.2 was not aware as to what transpired between accused No.1 & PW1. Accused No.2 has not overheard the conversation between the accused No.1, CW2- Rajanna & PW1. On 20.09.2011, when PW1 went to BBMP Office, Thanisandra, for filing application to get 'B' Khata, he has not seen the accused No.2. There is no involvement of accused No.2 in the entire episode. Accused No.2 is no way concerned to his intended visit to BBMP Office and subsequent development taken place inside the office. Accused No.2 had no 15 Spl.C.C.No.107/2012 knowledge about filing of the complaint, against whom the complaint was given, what was happening, the reason for his arrest, etc. till he got released from jail. After the accused No.2 was apprehended by the Lokayuktha Police, all of them including the Lokayuktha Police Inspector came to know that he is native of Andhra Pradesh, his Mother Tongue is Telugu and he is innocent & illiterate.
18. The prosecution has examined CW2-Rajanna as PW2. PW2 has deposed that, CW1-Gopal Rao is his friend. He had been to the BBMP office, Thanisandra Ward along with CW1 in order to get Khata in respect of the sites purchased by CW1 in Agrahara layout, Yelahanka, Bangalore. He showed him the BBMP office. He has not met any officials of BBMP. Complainant told him that he filled the challans and met the officials of the BBMP, who in turn told him to come after 2-3 weeks. Complainant has not told him anything more. PW2 further deposed that complainant took him to some office situated nearby Vidhana Soudha. He does not remember the name of the said office. He was made to sit in a room. Nothing was done in his presence. Thereafter he was taken to BBMP office, Thanisandra. He was standing in the road in front of BBMP office. He has not seen anything. Complainant alone went inside BBMP office. He does not know about arrest of any person by Lokayuktha Police. Lokayuktha Police have not recorded his statement.
16 Spl.C.C.No.107/201219. PW2 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P. has cross-examined PW2 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross- examination.
20. The prosecution has examined CW3-D.Kalaiah, as PW-3. PW-3 is one of the panch witnesses to the Entrustment Mahazar-Ex.P2 & Trap Mahazar-Ex.P3. PW3 has deposed about conducting of pre-trap proceedings by the Lokayuktha Police on 28.9.2011, preparing of Entrustment Mahazar as per Ex.P2, laying of trap against the accused, recovery of tainted currency notes from the accused No.2 and taking hand wash of accused No.2 in the sodium carbonate solution, playing of Spy camera and Digital Voice Recorder given to the complainant at the time of trap, converting contents of it into CD and transcript into writing, identifying the voice of accused No.1 through higher Officer, obtaining statement of accused No.1 & 2 in writing, etc.
21. During the course of cross-examination made on behalf of accused No.1, it is elicited that, complainant & his friend-Rajanna went inside BBMP office and rest of the Trap Team Members were standing outside the office. He saw the complainant & his friend-Rajanna in the BBMP office only after the Lokayuktha Inspector received the missed call. When he entered the BBMP office, the accused No.2 was inside the 17 Spl.C.C.No.107/2012 chamber of accused No.1. It is further elicited that in the Voice Recorder and Spy camera given to the complainant at the time of trap, the voice of accused No.1 demanding & accepting bribe is not forthcoming.
22. The prosecution has examined CW22-Puttaswami H.P, the then Police Inspector of Karnataka Lokayuktha as PW-
4. PW-4 is the Investigating Officer, who has laid the trap. PW- 4 has deposed about registering of FIR, drawing of Entrustment Mahazar, laying of trap, resultant hand wash of accused No.2 turning to pink colour, recovery of currency notes of Rs.3,000/- (MO12) from accused No.2, converting the contents of Button Camera and Spy Camera into CD and transcript into writing, identification of voice of accused No.1 through Puttarajanna- CW10-ARO, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, collecting service particulars of accused No.1, receipt of Chemical Examination Report, obtaining spot sketch from AEE-PWD, receiving Sanction Order from the Competent Authority to prosecute the accused No.1, etc.
23. During the cross-examination of PW4 made on behalf of accused No.1, it is elicited that, on 28.9.2011, the complainant approached him for the first time. He did not make enquiry with the complainant as to whom the Voice Recorder belongs to. He enquired with the complainant about the name of the Dy.S.P., whom he met on 26.9.2011. Before 18 Spl.C.C.No.107/2012 registering FIR, he was aware that the complainant already met his superior Officer and taken the Voice Recorder from the Lokayuktha Institution. The transcription made in the Entrustment Mahazar is originated from the Voice Recorder which was collected from the Lokayuktha Institution on 26.9.2011. It is further elicited that, the file relating to the complainant was produced by Puttaraju-ARO, the higher Officer of accused No.1. During the investigation, he came to know that, the Competent Authority for making 'B' Khata was Puttaraju-ARO and not accused No.1. He does not remember the time prescribed for issuing 'B' Khata after filing of application. The documents collected by him during investigation did not disclose any of the work render by accused No.1 in connection with issue of 'B' Khata in favour of the complainant. He has not filed certificate under Section 65 of the Evidence Act with regard to MO.4, 5, 10 & 11.
24. During the course of cross-examination of PW4 made on behalf of accused No.2, it is elicited that, accused No.2 does not know reading and writing Kannada. In the statement given by accused No.2-Ex.P14, there is no endorsement to the effect that the contents of it were translated and interpreted in the language known to him. At the time of trap, Siddegowda-the immediate superior Officer of accused No.2 was not present in BBMP office. In Ex.P14, there is no endorsement to the effect that accused No.2-Peer Sab is giving statement through 19 Spl.C.C.No.107/2012 Siddegowda. Ex.P14 does not reveal the reason for payment of Rs.3000/-.
25. It is well settled that demand of illegal gratification by the accused and acceptance of the same is sine-qua-non for constituting the offence under Section 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that there was demand and acceptance to bring home the guilt of the accused. The prosecution is also required to prove that the work of the complainant was pending with the accused as on the date of the complaint and the accused was the Competent Authority to do an official favour to the complainant.
26. Ex.P1-complaint reveals that, the complainant met the accused No.1 for the first time on 20.9.2011 and on 26.09.2011 for the second time. For the first time, when he met the accused No.1 on 20.9.2011, he was alone. When he met accused No.1 for the second time on 26.9.2011, CW2-Rajanna said to have accompanied him. On both these occasions, the accused No.1 demanded for bribe. But the evidence of PW1 reveals that he did not meet the accused No.1 in between 20.9.2011 & 28.9.2011. The evidence of PW2-Rajanna reveals that, he showed the complainant BBMP office, but has not met any officials. Absolutely there is no independent corroboration to prove the fact of demand of illegal gratification by accused No.1 prior to the complaint i.e. either on 20.9.2011 or on 26.9.2011.
20 Spl.C.C.No.107/201227. Then coming to the aspect of demand by the accused No.1 at the time of trap, according to the prosecution case, PW2- Rajanna accompanied the complainant when he was going to give the money. PW2 being an independent witness has not played his role as instructed and in the manner required in law. The impartial witness to the trap proceedings is taken with an object to prove the demand and acceptance of bribe by independent corroboration. According to PW2-Rajanna, complainant alone could go inside the BBMP office and he was standing in the road in front of BBMP office. He has not seen anything. He does not know about arrest of any person by Lokayuktha Police. He has not overheard the conversation nor seen the incident. The evidence of PW2 will not be helpful for the prosecution to prove the demand of illegal gratification by the accused No.1 and acceptance of the same after demand through accused No.2.
28. Even the evidence of PW1 reveals that, when he had been to the office of accused No.1 for giving money, he was busy with his work. There was no conversation between himself and accused No.1. CW2-Rajanna took him for coffee. There was time gap of 15-20 minutes when he first met accused No.1 in his office & till they went for coffee. Neither accused No.1 nor PW1 spoke about money, till they went for coffee. After having coffee, when the accused No.1 was returning to office, PW1 forced the accused No.1 to receive the money, but he did not receive.
21 Spl.C.C.No.107/2012Accused No.1 was in his office when Lokayuktha Police arrived the spot. The evidence of PW3 reveals that, he never went inside the BBMP office. He was not aware about the conversation that took place between the accused No.1 & the complainant. He has not seen the complainant giving money to accused No.2 at the instance of accused No.1. From the evidence of PW3 it is clear that, the accused No.1 was not found indulging either in demanding or accepting money from the complainant.
29. From the evidence of PWs-1 to 3, it is clear that, there was no demand of money by accused No.1 even at the time of trap. In the instant case, the fact that accused No.1 demanded money from the complainant and accepted the same after demand through accused No.2 is missing.
30. In the present case, the official favour sought for is issue of 'B' Khata in respect of site No.18 & 19 of Agrahara layout, Yelahanka, Bangalore. The evidence on record reveals that, the application for getting 'B' Khata was addressed to Assistant Revenue Officer, Byatrayanapura Sub-Division, Bangalore. The said application bears the seal & signature of ARO, Byatarayanapura Sub-Division. Since the complainant does not know reading & writing Kannada, at his request, the accused No.1 filled the blank form and he instructed the complainant to meet the ARO. The evidence of PW4- Investigating Officer reveals that, the Assistant Revenue Officer, 22 Spl.C.C.No.107/2012 is the Competent Authority in making 'B' Khata and not the accused No.1. The documents collected by the Investigating Officer during the investigation did not disclose any of the work render by accused No.1 in connection with issue of 'B' Khata in favour of the complainant. Further, the file relating to the complainant was seized from the custody of the ARO. The accused No.1 was not supposed to do any official favour to the complainant in connection with making 'B' Khata in respect of site No.18 & 19 of Agrahara layout, Yelahanka, Bangalore. Since, the accused No.1 was not the Competent Authority nor empowered for issue of 'B' Khata or processing the file, the question of demand of illegal gratification by the accused No.1 and acceptance of the same through accused No.2, is legally & factually does not arise.
31. The evidence on record reveals that, the complainant purchased Revenue sites bearing No.18 & 19 of Agrahara layout, in the year 2002. He filed an application for getting 'B' Khata in respect of the said property on 20.9.2011, i.e. 9 years after he purchased the property. The Revenue sites could not have been alienated without getting 'B' Khata. As such, in the year 2011, the complainant filed application for getting 'B' Khata though he purchased the property in the year 2002. The complainant pressed urgency when he submitted the application for getting 'B' Khata. Within 15 days from the date of giving complaint to the Lokayuktha Police, the complainant got 'B' Khata Extract.
23 Spl.C.C.No.107/2012Within 2 years of getting 'B' Khata Extract, the complainant sold site No.19 of Agrahara layout, to his friend-Fareed. From these aspects, it is clear that the intention of the complainant in filing the complaint before the Lokayuktha Police was to hurriedly get 'B' Khata in respect of the Revenue sites in order to alienate to third party.
32. The evidence of PW4 reveals that, complainant met him for the first time on 28.9.2011. He did not give Voice Recorder to the complainant. But the evidence of PW1 reveals that, one day before filing complaint, he met Lokayuktha Police Inspector and collected the Voice Recorder. If the evidence of PW4 is accepted as true, then the evidence of complainant that on 26.9.2011 he collected the Voice Recorder from Lokayuktha Inspector is false.
33. The evidence of PW1 and complaint-Ex.P1 reveals that, two days prior to filing of complaint, i.e. on 26.9.2011, the complainant approached the Lokayuktha Police. On that day, he was provided with Voice Recorder by the Investigating Agency with an instruction to meet the accused person again, discuss the matter, record the conversation and come back to the Lokayuktha office. On 26.9.2011, when the complainant met the Lokayuktha Police, he narrated the fact of demanding bribe by the accused person for making 'B' Khata, in respect of two sites purchased by him. All the details were furnished to the Lokayuktha Police by the complainant, at that moment of time. On 26.9.2011, when the complainant met the Lokayuktha Police for the first time and furnished detail information 24 Spl.C.C.No.107/2012 regarding cognizable offence, i.e. the name & designation of the public servant who demanded bribe, quantum of amount, the official favour sought for, etc., no further information was required by the Lokayuktha Police. FIR ought to have been registered immediately as per Section l54(1) of Cr.P.C. There was no reason for the Lokayuktha Police to give Voice Recorder to the complainant to record the conversation with the accused or to make preliminary enquiry. The Hon'ble High Court of Karnataka in the case of B.S.Anand Kumar -v- State of Karnataka, represented by Lokayuktha Police, in Crl.Appeal No.1342/2017 dated 12.12.2017 in the similar situation held that:
"giving of the Voice Recorder to the complainant, again asking him to go to the accused, have the conversation about the bribe amount recorded in the Voice Recorder is nothing but with an intention to collect the evidence.Therefore, the said Voice Recorder cannot be considered as a relevant piece of evidence".
34. Keeping in view the ratio laid down in the aforesaid decision, I am of the considered view that, when the complainant furnished all relevant information about committing of cognizable offence on 26.9.2011, giving of the Voice Recorder to the complainant to record the conversation about the bribe amount is nothing about collection of evidence before registration of FIR and same is not permissible in law.
35. It is well settled that electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is 25 Spl.C.C.No.107/2012 sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine, is supported by the decision of Supreme Court in the case of Anwar P.V. -v- P.K.Basheer and others; (2014) 10 Supreme Court Cases 473.
36. In the present case, MOs-4 & 10 are the CDs said to have contained the conversation, MOs-5 & 11 are the CDs containing the video-graph of Pre-Trap Mahazar and Trap Mahazar which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused No.1 and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MOs-4 & 10 are not admissible in evidence.
37. It is well settled that mere recovery of tainted money and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused, unless there is corroboration of testimony of complainant regarding demand and acceptance of bribe by the accused. In the present case, demand and acceptance of illegal gratification by the accused No.1 & 2 has not been established.
26 Spl.C.C.No.107/201238. The evidence on record reveals that, complainant & accused No.1 never had discussion about paying money to accused No.2 while climbing stairs or getting down from stairs. Accused No.2 had no knowledge as to what conversation took place between the complainant & accused No.1. He had no idea as to what was the work pending with accused No.1 or whom he is going to give money. Accused No.2 is not conversant with Kannada. He is innocent & illiterate. Without knowing the consequence, he received money. Accused No.2 is no way connected to entire episode. Further, there is no evidence led by the prosecution to prove that accused No.1 & 2 had prior meeting of mind with respect to bait money of Rs.3,000/- in connection with making of 'B' Khata. There is no credible & concrete evidence led by the prosecution to prove the guilt of the accused No.2. The ingredients of Section 8 of Prevention of Corruption Act,1988 are missing.
39. In the instant case, the prosecution has failed to discharge its burden to establish that the accused No.1 demanded illegal gratification and accepted the same through accused No.2 beyond reasonable doubt. The testimony of prosecution witnesses raises considerable doubt in the prosecution version and two views of matter are possible. Therefore, the benefit of doubt must go to the accused persons. Accordingly, I hold that demand of illegal gratification by the accused No.1 and accepting the same through accused No.2 is 27 Spl.C.C.No.107/2012 not proved by the prosecution. The prosecution has failed to prove the alleged charges leveled against the accused No.1 & 2. Hence, I answer Point Nos.1 to 3 in the Negative.
40. Point No.4: In the result, I proceed to pass the following:
ORDER The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 8, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bonds executed by the accused No.1 & 2 stands cancelled.
MO12- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
MO-1- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
Mos-2 to 11 being worthless is ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment writer directly on the computer, after transcription, corrected and then pronounced by me in the open court on this the 13th day of March 2018) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 28 Spl.C.C.No.107/2012 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 B.J.Gopal Rao
PW2 Rajanna
PW3 D.Kalaiah
PW4 Puttaswami H.P
List of documents marked on behalf of prosecution:
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-1(b) Signature of PW4
Ex.P-2 Entrustment Mahazar
Ex.P-2(a) Signature of PW1
Ex.P-2(b) Signature of PW3
Ex.P-2(c) Signature of PW4
Ex.P-3 Trap Mahazar
Ex.P-3(a) Signature of PW1
Ex.P-3(b) Signature of PW3
Ex.P-3(c) Signature of PW4
Ex.P-4 Currency notes sheet
Ex.P-4(a) Signature of PW3
Ex.P-4(b) Signature of PW4
Ex.P-5 Sanction Order
Ex.P-6 Transcription of Digital Voice
Recorder
Ex.P-6(a) Signature of PW4
Ex.P-7 Attested copy of the document
relating to the complainant
Ex.P-8 Attested copy of Attendance
29 Spl.C.C.No.107/2012
Register
Ex.P-9 Report
Ex.P-10 Transcription of CD
Ex.P-11 Acknowledgment
Ex.P-12 Report
Ex.P-13 Written Statement of accused No.1
Ex.P-14 Written Statement of accused No.2
Ex.P-15 Chemical Examination Report
Ex.P-16 Spot Sketch
Ex.P-17 Rough sketch
Ex.P-18 Service particulars of accused No.1
Ex.P-19 Mobile call details of accused No.1
List of material objects marked on behalf of the
prosecution:
MO.1 Metal seal
MO.2 Sample solution Article No.1
MO.3 Hand wash of CW4 Article No.2
MO.4 CD containing the conversation Article No.3
recorded in the Voice Recorder
MO.5 CD containing the videograph Article No.4
MO.6 Sample solution Article No.5
MO.7 Right hand wash solution of Article No.6
accused No.2
MO.8 Left hand wash solution of Article No.7
accused No.2
MO.9 Pant of accused No.2 Article No.9
MO.10 CD containing the Article No.10
conversation/scene recorded in
the spy camera & Voice
Recorder
MO.11 CD containing the scene Article No.11
recorded in the videograph at
the time of trap
MO.12 Currency notes of Rs.3000/-
(denomination of Rs.500/- x 6)
30 Spl.C.C.No.107/2012
List of witnesses examined on behalf of the accused :
-Nil-
List of documents marked on behalf of the accused:
Ex.D1 certified copy of deposition of PW1
in LOK/ARE-11/Enq-401/2013
***
(SHRIDEVI S. ANGADI)
LXXVI Addl. City Civil & Sessions Judge
& Special Judge, Bengaluru
(CCH-77)
31 Spl.C.C.No.107/2012