Bangalore District Court
State Of Karnataka vs Kenchaiah S/O Late Mallaiah on 31 October, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE (P.C.A.), BENGALURU (C.C.H.No.79)
Present: Sri.Ravindra Hegde, M.A., LL.M.,
LXXVIII Addl. City Civil & Sessions Judge
& Special Judge (P.C.A.), Bengaluru.
Dated: This the 31st day of October 2018
Special C.C. No.116/2013
Complainant: State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: Kenchaiah S/o Late Mallaiah,
Aged about 48 years,
Asst. Engineer, Minor Irrigation &
Water Resources Department,
K.R.Circle, Bengaluru
R/o 949, 1st main, 9th Cross,
Diwanarapalaya, Mattikere, Bengaluru.
(By Sri.C.G.Sundar., Advocate)
Date of commission of offence 07.01.2013
Date of report of occurrence 07.01.2013
Date of arrest of accused 07.01.2013
Date of release of accused on 09.01.2013
bail
Date of commencement of 09.08.2017
evidence
Date of closing of evidence 09.10.2018
Name of the complainant Sri.Jagadeesh
Offences complained of Under Sections.7, 13(1)(d)
r/w/s 13(2) of Prevention of
Corruption Act
Opinion of the Judge Acquitted
2 Spl.C.C.116/2013
Date of Judgment 31.10.2018
JUDGMENT
1. The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against Accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case is as under:
Accused-Kenchaiah, S/o Late Mallaiah is working as Assistant Engineer in Minor Irrigation and Water Resources Department, Bengaluru and is a public servant. Complainant Jagadeesh gave a complaint to Lokayukta Police on 07-01-2013 stating that his relative Malleshappa is having property in their village and for digging the bore-well in Sy.No.194, file was pending before Minor Irrigation and Water Resources Department for approval and Malleshappa had informed him that file is before accused and accused is insisting for payment of bribe. It is stated that as Malleshappa had asked complainant to meet accused with regard to approval for digging bore-well, on 07-01-2013 complainant met accused and then, accused demanded bribe of Rs.20,000/- to get the work done and complainant recorded this conversation in voice recorder and then gave complaint before Lokayukta Police on the same day. On receiving complaint, Lokayukta Police have registered the
3 Spl.C.C.116/2013 case in Crime No.01/2013 and sent FIR to the Court. Lokayukta Police Inspector secured panchas and made all arrangement for trap of accused and on the same day, between 05.00 to 05.45 p.m. in a new building under construction near Nandini Milk Parlour in P.W.D. Building, K.R.Circle, Bengaluru, when accused received tainted notes of Rs.20,000/- from complainant, he was caught. Accused was arrested and was later released on bail. Investigating Officer continued investigation and after completion of investigation and obtaining Prosecution Sanction Order, filed charge sheet against accused.
3. Cognizance of offences is taken by this Court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to Accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against Accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case, P.Ws.1 to 7 are examined. Exs.P1 to P21 are marked. M.O.1 to M.O.12 are also marked.
5. After completion of prosecution evidence, statement of Accused, as required under Section 313 of Cr.P.C. is recorded and Accused has denied incriminating evidence appearing against him. Accused has not led any defence evidence on his 4 Spl.C.C.116/2013 behalf. In the cross-examination of P.W.5, a document is marked for the defence as Ex.D1.
6. Heard the arguments and perused the records.
7. Now, Points that arise for my consideration are:-
1) Whether the prosecution proves that there is a valid sanction to prosecute Accused?
2) Whether the Prosecution proves beyond all reasonable doubt that, Accused being public servant, working as Assistant Engineer in the Office of Chief Engineer, Minor Irrigation Department, Bengaluru, has demanded bribe of Rs.20,000/-from complainant for getting approval for digging bore-well in Sy.No.194 of Kavuli Village in Shikaripura Taluk, Shimoga District and on 07-01-2013 between 05.00 to 05.45 p.m., in a new building under construction near Nandini Milk Parlour in P.W.D. Office compound, K.R.Circle, he again demanded and received tainted notes of Rs.20,000/- from complainant as illegal gratification as a motive or reward to do official act or favour to complainant and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act?
3) Whether the prosecution further proves beyond all reasonable doubt that Accused being public servant working as Assistant Engineer in the Office of Chief Engineer, Minor Irrigation Department, Bengaluru, has on 07-01-2013 between 05.00 to 05.45 p.m. in a new building under construction near Nandini Milk Parlour in P.W.D. Office compound, K.R.Circle, Bengaluru, 5 Spl.C.C.116/2013 has, by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.20,000/- without public interest, from complainant and thereby committed offence of criminal misconduct which is an offence under Section 13(1)(d) of Prevention of Corruption Act, punishable under Section 13(2) of Prevention of Corruption Act?
4) What Order?
8. My findings on the above Points are:-
Point No.1 : In the Affirmative, Point No.2 : In the Negative, Point No.3 : In the Negative, Point No.4 : As per Final Order, for the following:
REASONS
9. Point No. 1 : The offences alleged against accused are under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. Since accused is a public servant, working as Assistant Engineer, in Minor Irrigation Department, sanction from competent authority is necessary to prosecute him. Prosecution Sanction Order is marked in this case as Ex.P1. To prove the Prosecution Sanction Order, A.N.Thyagaraja, Chief Engineer in C & B South, P.W.D., has given evidence as P.W.1. P.W.1 has stated that he was the Appointing Authority of accused and he has received the requisition from A.D.G.P., Karnataka Lokayuktha seeking Prosecution Sanction Order, along with copy of complaint, FIR, Mahazar, Statement of 6 Spl.C.C.116/2013 Witnesses and other investigation records and he has verified all these materials. He has stated that there were sufficient materials to accord sanction to prosecute the accused and accordingly, he has issued Prosecution Sanction Order as per Ex.P1. In the cross-examination, P.W.1 has admitted that there will be separate Chief Engineer for Irrigation Department and has denied that he is not the competent authority to accord sanction. He has admitted that Assistant Engineer has the power only to put up file and Executive Engineer and Chief Engineer have the power to sanction the work and admitted that digging of bore-well comes within the jurisdiction of Chief Engineer. He has admitted that Assistant Engineer is declared as Gazetted Officer.
10. Ex.P1-Prosecution Sanction Order and evidence of P.W.1 show that, along with requisition, investigation records were furnished to P.W.1 and he has gone through the same and then accorded sanction to prosecute accused by applying his mind. Though it was suggested to P.W.1 that he is not competent authority to accord sanction, there is no such materials placed before the Court to show that P.W.1 was not competent to accord prosecution sanction. There are no materials to show that Prosecution Sanction Order issued by P.W.1 is not proper. Moreover, on the basis of the same materials, which were available before P.W.1, this Court has 7 Spl.C.C.116/2013 taken cognizance of offences and has even framed charge. Therefore, prosecution is successful in proving that there is valid Prosecution Sanction Order against accused. Hence, point No.1 is answered in the Affirmative.
11. Point Nos.2 and 3 : Since these Points are inter- linked with each other, they are taken together for discussion to avoid repetition.
12. To prove the charge against Accused, prosecution has examined P.Ws.1 to 7. P.W.5-Jagadeesh is complainant. P.W.6- Malleshappa is the relative of complainant and in respect of whose work complainant is said to have approached accused. P.W.2-Mehaboob Ali Nadaf is the shadow witness. P.W.3- Shankarnarayana is another panch witness. P.W.4-B.S.Ramesh is Assistant Executive Engineer, who is said to have identified the voice of accused in the recordings played before him. P.W.1- Thyagaraja is the Prosecution Sanctioning Officer. P.W.7- Mohammed Mukaram is the Lokayukta Police Inspector and Investigating Officer.
13. On behalf of prosecution, documents are marked as Exs.P1 to P21. Ex.P9 is the complaint and Ex.P11 is FIR. Ex.P2 is the sheet containing number of notes. Ex.P3 is Pre-Trap Mahazar and Ex.P4 is Trap-Mahazar. Ex.P5 is the transcription of recordings in voice recorder produced by complainant while 8 Spl.C.C.116/2013 giving complaint. Ex.P6 is transcriptions of the recordings in voice recorder and the button camera at the time of trap. Ex.P7 is the written explanation given by accused. Report given by P.W.4 on voice identification is marked as Ex.P8. Statement of complainant -PW5 and Statement of P.W.3 stated to have been given before the Police are marked as Exs.P10 and P21. Rough sketch prepared by Investigating Officer is marked as Ex.P12 and the sketch prepared by Engineer is marked as Ex.P19. The File pertaining to alleged work of complainant in respect of which bribe is said to have been demanded, is marked as Ex.P13. Copy of Attendance Register is marked as Ex.P14. Exs.P15 and P16 are the sample seal and acknowledgement given by P.W.3. Service details of accused is marked as Ex.P17 and Report of F.S.L. is marked as Ex.P18. Ex.P20 is Call details.
14. For the prosecution, M.Os.1 to 12 are also marked. The tainted notes are marked as M.O.1. Bottles containing solution taken at different stage of proceedings are marked as M.Os.2 to 6. Pant of the accused seized in this case is marked as M.O.7. C.Ds. are marked as M.Os.8 to 12.
15. In the cross-examination of P.W.5 copy of his evidence given in Departmental Enquiry is confronted and marked as Ex.D1.
16. It is the case of the prosecution that P.W.6 is having land 9 Spl.C.C.116/2013 in Kavali Village of Shikaripura Taluk and in respect of digging a bore-well in Sy.No.194, approval was required to be given by Water Resources and Minor Irrigation Department and file was pending before accused and when P.W.6 approached accused, he had demanded money. Later P.W.6 had sent complainant-P.W.5 to get the work done by approaching accused. When P.W.5 came and met accused on 07-01-2013 in his office and enquired about the work, accused demanded bribe of Rs.20,000/-. Complainant recorded this conversation in voice recorder and then gave complaint as per Ex.P9. On receiving complaint, Lokayukta Police Inspector-P.W.7 registered the case and secured P.Ws.2 and 3 as panch witnesses and followed pre trap procedure. P.W.5 produced Rs.20,000/- in denomination of Rs.500 x 40 and number of currency notes were noted down as per Ex.P2 and phenolphthalein powder was applied and on the instructions of P.W.7, P.W.2 kept the tainted notes in left side pant pocket of P.W.5 and thereafter, hands of P.W.2 were washed in sodium carbonate solution, after taking sample and solution turned to pink colour and was seized. Voice recorder produced by complainant while giving complaint, was played and conversation recorded in voice recorder was transcribed on paper as per Ex.P5 and recording was transmitted to C.D. which is produced as M.O.8. Instructions were given to P.W.5 to meet accused and to enquire about the work and then to give tainted 10 Spl.C.C.116/2013 notes only in case of demand and then to give signal by wiping the head and voice recorder was given to complainant. P.W.2 was asked to be shadow witness and to follow P.W.5 and to watch the happenings and to report later. Button camera was affixed to shirt of P.W.2. Pre-Trap Mahazar as per Ex.P2 was prepared and signatures were taken.
17. It is further case of the prosecution that trap team went to P.W.D. Office compound, by walk and after reminding the instructions, P.Ws.5 and 2 were sent to meet accused. When they met accused he told that file is with the Boss and work will be done in the evening or on the next day, if amount is given and that officer will be coming in the evening at 05.00 p.m. Then at about 4.45 p.m. they came back and informed the same to P.W.7. Thereafter, at 5.00 p.m. P.W.5 made a phone call to accused and accused asked him to come to his office and when he went there, accused was going for tea and he enquired about amount and asked P.W.5 to come to Hotel and give the amount. After some time, P.W.5 went near the hotel and met accused and he asked to come with him and they went to a building under construction near Nandini Milk Parlour and there, accused received Rs.20,000/- tainted notes from P.W.5 and kept it in his left side pant pocket. Immediately P.W.5 gave signal to trap team and trap team surrounded accused and P.W.5 shown the accused as the person who demanded and received bribe 11 Spl.C.C.116/2013 amount from him. Then P.W.7 introduced himself to Accused and ascertained his details. Sodium carbonate solution was prepared and both hands of accused were separately immersed in the solution and solution turned to pink colour and was seized in bottles. When accused was asked about the amount received from P.W.5, he told that he has kept it in left side pant pocket and then P.W.3 took out the amount from pant pocket of accused and they tallied with Ex.P2. P.W.7 has prepared rough sketch of the spot as per Ex.P12. P.W.7 enquired the accused about file pertaining to work of complainant and accused then took them to office wherein file pertaining to bore-well in Sy.No.194 was produced from his drawer and P.W.7 has taken the file and as office hours was closed, they came to Lokayukta Office. The Lokayuktha police Inspector secured higher officer of accused, PW-4 and Sri.Rajashekar. The voice recorder given to complainant and spy camera given to PW2 were played and after initial recording, spy camera was found to have been switched Off due to technical defects. Recordings in voice recorder were transcribed on paper as per Ex.P.6. and Signatures were taken. Pant which accused was wearing was seized by making alternative arrangement. Recordings in voice recorder and spy camera were transmitted to C.D and seized and marked in this case as M.O.10 and 11. On questioning, accused gave written explanation as per Ex.P.7 which was found not 12 Spl.C.C.116/2013 acceptable. Thereafter, accused was arrested by following procedure and Trap Mahazar was prepared as per Ex.P.4. P.W.7 continued investigation and after completion of investigation, prepared final report and sent it for obtaining Prosecution Sanction Order. After receiving Prosecution Sanction Order as per Ex.P.1, he has filed the charge sheet.
18. In order to bring home the guilt of accused for the offence under section 7, 13(1) (d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being a public servant demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. Presumption is available under section 20 of Prevention of Corruption Act, in respect of offence under section 7 and benefit of presumption can be given only when prosecution discharges initial burden of proving that accused has demanded and accepted illegal gratification. Under Section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
19. It is the prosecution case that, P.W.6 had work of digging a bore-well in his property for which approval from Minor Irrigation Department was necessary and the file regarding 13 Spl.C.C.116/2013 approval was pending in Water Resources and Minor Irrigation Department, Bengaluru in which accused was Working as Assistant Engineer. As per prosecution case, when P.W.6 approached accused, he has demanded bribe. Thereafter, P.W.6 requested P.W.5-complainant to meet accused to get approval for digging bore-well and when on 07.01.2013, P.W.5 met accused, he demanded bribe of Rs.20,000/- to do the work. Therefore, before P.W.6, accused is stated to have made demand for bribe prior to P.W.5 approaching him. Even before P.W.5, accused is stated to have made a demand of Rs.20,000/- to do the work on 07.01.2013. The demand of bribe by accused was before P.W.6 and also before P.W.5. As per the complaint averments, regarding demand made by accused with P.W.5 for Rs.20,000/-, conversation is recorded in voice recorder and produced before Investigating Officer at the time of giving complaint. This recording is transmitted to C.D as per M.O.8 and transcribed as per Ex.P.5. Regarding demand of bribe by accused before P.W.6, there is no such recordings.
20. P.W.6 in his evidence has clearly stated that, accused had attended his part of work with regard to this approval for digging the bore-well and he has not demanded any bribe. He has stated that, the accused had informed that for taking signature of Chief Engineer and Technical Assistant, Rs.20,000/- is to be given and if it is not paid, they will not attend the work and has 14 Spl.C.C.116/2013 stated that he asked P.W.5 to give Rs.20,000/- to Ramesh or Jayachandra and not to accused. Therefore, P.W.6 has not stated about demand of bribe by accused to do his work. There is also no other evidence in respect of such demand of bribe by accused with P.W.6. On 07.01.2013, there was a specific demand for Rs.20,000/- by accused as per complaint averments. P.W.5 has not supported prosecution case with regard to demand of bribe by accused. He has stated that it is P.W.6 who talked to accused and P.W.6 had informed him that bribe is to be paid to Chief Engineer. P.W.5 has not stated about any demand of bribe by accused on 07.01.2013 or later. Though this witness was treated as hostile and was cross-examined by learned public prosecutor, nothing worth is elicited in support of the prosecution with regard to alleged demand of bribe by accused prior to giving of Ex.P.9-complaint. In the absence of supporting evidence of P.W.5 and 6, only evidence available regarding demand for bribe by accused on 07.01.2013 is the recording made by complainant in voice recorder. Voice recorder is not produced before the court. Recording in voice recorder, transmitted to CD is produced as per M.O.8 and transcription is produced as per Ex.P.5. Except M.O.8 and Ex.P.5 containing alleged conversation between complainant and accused, there is no evidence to prove alleged demand for bribe by accused prior to giving of complaint. On the other hand prosecution witnesses 15 Spl.C.C.116/2013 P.W.5 and 6 themselves have stated that there is no demand for bribe by the accused.
21. As per the prosecution case even at the time of trap of accused, he enquired where is money and then near Nandini Milk Parlor in new building under construction, accused demanded and accepted bribe amount from complainant. Shadow witness P.W.2 has stated in his evidence that complainant met accused in his office and accused enquired about P.W.2 with complainant and then accused asked complainant to send P.W.2 out and then P.W.2 came out. P.W.2 has also stated that near Nandini Milk Parlor he was standing at a distance from where he could see the complainant but could not hear. Therefore P.W.2 shadow witness has not heard any conversation between complainant and accused at the time of trap in the office of accused or near milk parlor. P.W.4, another panch witness has also not stated anything about demand for bribe by accused at the time of trap in his presence. P.W.5-complainant has also not stated anything about demand for bribe by accused at the time of trap. He has stated that, P.W.6 asked him to give the amount to Accused- Kenchaiah if Chief Engineer is not available and near the tea stall when accused came after taking tea, he approached him and gave tainted notes and told him that amount is to be given to Chief Engineer. Therefore, even P.W.5 has not stated anything about the demand for bribe by accused at the time of trap. Spy 16 Spl.C.C.116/2013 camera which was given to P.W.2 was later found to be not working. Voice recorder given to complainant was played and recordings in voice recorder is transmitted to C.D as per M.O.10 and transcription of recordings of spy camera and voice recorder is marked as Ex.P.6 in this case. Since complainant- P.W.5 has not stated any demand of bribe by accused even at the time of trap and P.W.2-Shadow witness has also stated that he had not heard any conversation, there is no evidence to support the prosecution case that, at the time of trap accused has demanded bribe amount from complainant.
22. Recordings in the voice recorder and spy camera which are transmitted as per M.O.10 and 11 and transcribed as per Ex.P.6 are only evidence even to prove demand of bribe by accused at the time of trap. As stated above, the recording in the voice recorder produced by complainant was transmitted to CD and marked as M.O.8 and transcribed as per Ex.P.5. That was with regard to demand of bribe by accused before giving complaint. In view of the hostile evidence of P.W.5 and evidence of P.W.6 and 2 not supporting the case of prosecution regarding demand of bribe, the prosecution case have to rely only on recordings as per M.O.8, 10, 11 and transcription at Ex.P.5 & 6. As admitted by P.W.7, original device in which these recordings were made are not produced before the court. The CD and transcriptions produced and marked in this case are copies of 17 Spl.C.C.116/2013 electronic records. In respect of these transmitted C.Ds. and transcriptions, no certificate under Section 65B of Indian Evidence Act is obtained. Original device, like voice recorder and spy camera are not seized in this case.
23. Learned counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court reported in (2015) 1 SCC (Crl.) 24 (Anvar P.V. vs. P.K.Basheer and others). In this decision, Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records without certificate under Section 65-B of Indian Evidence Act and has also held that, when secondary evidence of electronic records are produced before the Court, they cannot be admitted in evidence, unless secondary evidence is accompanied by certificate under Section 65-B of Indian Evidence Act. Therefore all these C.D.s and its transcriptions produced in this case which are not supported by Certificate under Section 65B of Indian Evidence Act, are not admissible. As these CDs are not admissible, evidence of P.W.4 about identification of voice of accused in these recordings and his report as per Ex.P.8 will not help the prosecution. Moreover, C.Ds. Are not sent for expert's opinion in the course of investigation.
24. When, prosecution case is considered in the absence of C.D.s. and its transcriptions, there is absolutely no evidence 18 Spl.C.C.116/2013 before the court regarding demand for bribe by accused prior to or subsequent to giving of complaint. Evidence of P.W.5 & 6 and the evidence of shadow witness P.W.2 and another witness P.W.3 does not help the prosecution in proving the alleged demand of bribe by accused. Therefore prosecution has failed to prove the alleged demand of bribe amount by accused.
25. Learned Counsel for accused has drawn my attention to a decision reported in (2015) 11 SCC 314, (C.Sukumaran /vs/ State of Kerala) Hon'ble Supreme Court has held in para No.13 as under:
".....it has been continuously held by this Court in a Catena of cases after interpretation of the provisions of Sections 7 and 13(1) (d) of the Act that the demand of illegal gratification by the accused is the sine-qua-non for constituting an offence under the provisions of the Act".
26. In another decision reported in AIR 2015 SC 3549, (P.Satyanarayana Murthy /vs/ Dist. Inspector of Police and another) in Para No.21 and 22, the Hon'ble Supreme Court has held as under:
"21. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or 19 Spl.C.C.116/2013 recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."
27. In decision reported in 2014 (13) SCC 55 B.Jayaraj Vs State of Andra Pradesh also the Hon'ble Supreme Court has held in Para No.7 as under :-
"In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine-qua-non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court".
28. When demand of illegal gratification is not proved, acceptance and recovery even if proved will not prove the guilt of Accused. Still, coming to the acceptance of bribe amount, P.W5- complainant has stated that when he went to give amount to accused, accused asked him to give the amount to Chief Engineer and accused was returning the amount and at that time, accused was apprehended by Lokayuktha police Inspector.
20 Spl.C.C.116/2013 P.W.5 has also stated that P.W.6 had asked him to give the amount to Chief Engineer and if Chief Engineer is not available then to accused-Kenchaih. He has stated that as there were several persons in office of the accused, he could not give amount and thereafter accused came to tea stall and when he was coming after taking tea, he approached accused and gave him tainted notes and told him that amount is to be given to Chief Engineer. Though this witness was treated as hostile and was cross-examined by Public Prosecutor, he has denied that it was accused who had demanded bribe and he gave tainted notes to accused as demanded by him. P.W.2-Shadow witness has stated that he has not seen the accused receiving tainted notes from complainant Though, P.W.2 was cross-examined by learned public prosecutor, witness has denied that he has seen the accused receiving tainted notes from complainant and then keeping it in his pant pocket. In his cross examination for accused, P.W.2 has admitted that because of movement of vehicles on the road, he could not see or hear anything. P.W.3 another panch witness has not seen the accused receiving tainted notes from complainant.
29. Therefore, neither complainant-P.W.5 nor shadow witness or another panch witness have stated about accused receiving tainted notes from complainant. P.W.2 and 3 have not seen complainant giving tainted notes to accused. Investigating 21 Spl.C.C.116/2013 Officer-P.W.7 has also not stated that he has seen the accused receiving tainted notes. Therefore there is no evidence to prove the alleged acceptance of bribe amount by accused from complainant. Though witnesses have stated about hand wash of accused in the chemical solution and solution turning to pink colour and seizing of the amount from accused, mere recovery does not prove the acceptance of bribe amount. Moreover, P.W.5 has stated that he was asked to give the amount to Chief Engineer and as he was not available he gave it to accused and asked him to give it to Chief Engineer. Therefore, even if receipt of amount by accused is accepted, that will not establish that accused has received the amount as illegal gratification from complainant in furtherance of his alleged demand. Therefore, acceptance of bribe amount by accused from the complainant is not established in this case.
30. When demand and acceptance is not proved, recovery of the amount from accused will not prove the guilt of accused. Even for proof of recovery, evidence of P.W.2 and 3 is not helpful. P.W.5 has stated that he had asked accused to give it to Chief Engineer. Hence, even to prove recovery, there is no clear evidence. In (2000) 5 Supreme Court Cases 21 (Smt.Meena w/o Balwant Hemke -v- State of Maharashtra) relied for accused, Hon'ble Supreme court has held that: Mere recovery of currency note and positive result of phenolphthalein 22 Spl.C.C.116/2013 test not enough in the peculiar circumstances of the case, to establish guilt of the accused and the charge must be proved beyond reasonable doubt.
31. In 2014 A.I.R.S.C.W.5740 (M.R.Purushotham Vs.State of Karnataka) it is held that Mere possession and recovery of currency notes from accused without proof of demand would not attract offence under section 13(1)(d).
32. Even presumption under section 20 of Prevention of Corruption Act cannot be drawn in the absence of proof of demand and acceptance. Even otherwise, copy of file which was seized from office of accused has been produced and marked at Ex.P.13 in this case. On looking to the entire Ex.P.13, it cannot be made out that some work of complainant or P.W.6 was pending with accused. Water Resources and Minor Irrigation Department appears to have sanctioned bore-well in Sy.No.194 of Kavali Village under scheme for development of scheduled Tribe persons and contract was given to Shivakumar.H.K. In entire Ex.P.13, no where it is mentioned that Sy.No. 194 of Kavali Village belong to P.W.6-Malleshappa or P.W.5-Jagadeesh or to relative of P.W.6 by name Nagappa mentioned by P.W.6. None of the documents show that complainant or P.W.6 or Nagappa had approached Water Resources and Minor Irrigation Department seeking approval for digging of bore-well. There is no document found in this file to show that P.W.5 or 6 belong to 23 Spl.C.C.116/2013 Schedule Tribe. The file discloses that bore-well was sanctioned under Schedule Tribe Scheme in Sy.No. 194 of kavali Village. Connection of complainant or P.W.6 with this bore-well is not found in any of the charge sheet materials. Even P.W.7 has stated in his cross-examination that he has not made any investigation as to whether Sy.No.194 belongs to P.W.5 or 6. He has not obtained the RTC of Sy.No.194. P.W.6 has stated that accused had already attended his work. Even P.W.7- Investigating Officer in his cross-examination has admitted that administrative approval for digging bore-well was passed on 27.09.2012 which is found in Ex.P.13 file at Pg.No.97 of the charge sheet. He has stated that he is not collected any document to show that complainant and P.W.6 belonging to Schedule Tribe. In entire Ex.P.13, name of complainant or P.W.6 is not appearing. This file disclose that contract for digging bore- well was given to Shivakumar and approval was already given on 27.09.2012. Therefore, there is no evidence before the court to show that some work of complainant or P.W.6 was pending with accused. Therefore any presumption under section 20 of Prevention of Corruption Act even if raised, would stand rebutted by Ex.P.13.
33. In 2016(1) K.C.C.R 815 (R.Srinivasan & Another Vs. Stte by Police Inspector Lokayuktha, Bangalore), Hon'ble High Court has held in para 15 as under:
24 Spl.C.C.116/2013 "15. In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do some official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under section 7 of the Act......"
34. In 2012 (1) K.C.C.R 414 (R.Malini V.s State of Karnataka) it is held that when certificate was kept ready much before lodging of complaint, question of accused demanding bribe amount for doing any work does not arise and no work was pending at the time of Lodging the complaint.
35. For all these reasons, prosecution has failed to prove the demand or acceptance of bribe amount by accused. Hence commission of offence by accused under section 7 of Prevention of Corruption Act is not proved. Similarly, accused accepting pecuniary advantage of Rs.20,000/- without any public interest by corrupt or illegal means or by abusing his position is also not established. Hence, any act of criminal mis-conduct by accused is not made out. Accordingly, commission of offence under section 13(1)(d) r/w 13(2) of Prevention of Corruption Act is also not proved. Hence, point No.2 & 3 are answered in the 25 Spl.C.C.116/2013 Negative.
36. Point No.4.:- For the discussion on Point Nos.1 to 3, Accused is to be acquitted. Hence, following Order is passed:
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C.
accused is acquitted from the charges levelled against him for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. The bail bond executed by accused and his surety stands cancelled.
MO.1 Cash of Rs.20,000/- is ordered to be confiscated to the State after the expiry of the appeal period.
MOs.2 to 12 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the 31 st day of October 2018).
(Ravindra Hegde), LXXVIII Addl.City Civil & Sessions Judge (PCA), Bengaluru.
26 Spl.C.C.116/2013 ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - A.N.Thyagaraj P.W.2 - Mehaboob Ali Nadaf P.W.3 - Shankaranarayana P.W.4 - B.S.Ramesh P.W.5 - Jagadeesh P.W.6 - Malleshappa P.W.7 - Mohammed Mukaram
List of documents exhibited for the prosecution:
Ex.P1 - Prosecution Sanction Order
Ex.P.1(a)- Signature of P.W.1
Ex.P.1(b)- Signature of P.W.1
Ex.P.2 - Sheet containing number of notes
Ex.P.2(a)- Signature of P.W.2
Ex.P.2(b)- Signature of P.W.3
Ex.P.2(c)- Signature of P.W.7
Ex.P.3 - Pre-trap Mahazar
Ex.p.3(a)- Signature of P.W.2
Ex.p.3(b)- Signature of P.W.5
Ex.p.3(c)- Signature of P.W.7
Ex.p.3(d)- Signature of P.W.3
Ex.P.4 - Trap Mahazar
Ex.P.4(a)- Signature of P.W.2
Ex.P.4(b)- Signature of P.W.5
Ex.P.4(c)- Signature of P.W.7
Ex.P.4(d)- Signature of P.W.3
Ex.P.5 - Transcription of Audio Recording
Ex.P.5(a)- Signature of P.W.2
Ex.P.5(b)- Signature of P.W.7
Ex.P.6 - Transcription of conversation recorded.
Ex.P.6(a)- Signature of P.W.2
Ex.P.6(b)- Signature of P.W.7
27 Spl.C.C.116/2013
Ex.P.7 - Written explanation of Accused
Ex.P.7(a)- Signature of P.W.2
Ex.P.7(b)- Signature of P.W.7
Ex.P.8 - Report given by P.W.4
Ex.P.8(a)- Signature of P.W.4
Ex.P.8(b)- Signature of P.W.7
Ex.P.9 - Complaint.
Ex.P.9(a)- Signature of P.W.5
Ex.P.9(b)- Signature of P.W.7
Ex.P.10 - Statement of P.W.5
Ex.P.11 - FIR
Ex.P.11(a)- Signature of P.W.7
Ex.P.12 - Rough sketch of the spot
Ex.P.12(a)- Signature of P.W.7
Ex.P.13 - Attested copy of the file pertaining to
work of complainant.
Ex.P.14 - Copy of Attendance Register.
Ex.P.15 - Sample Seal
Ex.P.15(a)- Signature of P.W.7
Ex.P.16 - Acknowledgement given by CW4.
Ex.P.16(a)- Signature of P.W.7
Ex.P.17 - Service Details of accused
Ex.P.17(a)- Signature of P.W.7
Ex.P.18 - Chemical Examination Report
Ex.P.19 - Sketch of the spot prepared by PWD Engineer
Ex.P.20 - Call details of accused
Ex.P.21 - Statement of P.W.3
Evidence adduced on behalf of the defence:
NIL Documents marked on behalf of the defence: Ex.D.1 - Certified Copy of evidence of P.W.5 given in departmental enquiry.
28 Spl.C.C.116/2013 Material Objects marked by Prosecution:
M.O.1 - Cash M.O.1(a) - Cover M.O.2 to M.O.6 - Bottles-Article 1,2,5,6 & 7 M.O.7 - Pant - Article -9
M.O.8 to M.O.12 - C.D's-Article-3, 4, 10,11,12 (Ravindra Hegde), LXXVIII Addl.City Civil & Sessions Judge (PCA), Bengaluru.
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