Bangalore District Court
The State Of Karnataka vs Mr. M.V.Venkatachala on 6 February, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT 1988, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 6th FEBRUARY 2017.
Spl. C.C.No. 50/2010
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: 1. Mr. M.V.Venkatachala, Aged 48 years,
S/o Late Venkatarangaiah,
FDA at Transport Commissioner's
Office, M.S. Building, Bengaluru.
R/a C/o Parthasarathy,
No.15, RHCS Layout,
1st Main Road, 4th cross,
Annapoorneshwari Nagara,
Bengaluru 91
(By Sri S.K.Venkatareddy, Advocate)
2 Spl. C.C. No.50/2010
2. Mr. Kiran, Aged 20 years,
S/o Ramaiah, Agent,
R/a Keethiganahalli,
Bidadi Hobli,
Ramanagara Taluk & District.
(Rep by Sri Raghunath, Advocate)
******
1. Nature of Offence: Offence punishable under Sec. 7,
8, 10, 13(1)(d) R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 07-01-2009.
of offence:
3. Date of First Information 07-01-2009.
Report:
4. Date of Arrest: 07-01-2009.
5. Date of Commencement 04-07-2014.
Of recording of evidence:
6. Date of Closing of evidence: 08-12-2016.
7. Date of Pronouncement of 06-02-2017.
Judgment.
8. Result of the case: Accused Acquitted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused persons with an allegations that the accused have committed the offence punishable under Sec.7, 8, 10, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
3 Spl. C.C. No.50/2010
2. The case of the prosecution, in brief is as follows:
The accused No.1, being the pubic servant, was working as FDA in the office of Transport Commissioner, M.S. Building, Bengaluru.
The accused No.2 is alleged to have been working as a broker in the office of accused No.1. One Mani has lodged a complaint before the Lokayuktha Police on 07-01-2009 by alleging that the accused No.1 has demanded the bribe amount of Rs.1,000/- from him for issuing the permit to run his vehicle to Shabarimalai. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.2/2009.
The Investigating Officer has secured the witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. On 07-01-2009, accused No.1 and 2 were trapped by the Lokayuktha Police, when the accused No.2 found receiving the bribe amount of Rs.1,000/- on behalf of the accused No.1 from the complainant. The accused No.1 and 2 were arrested and produced before the court. The Investigating Officer continued the further investigation and secured the documents relating to the demand of bribe, recorded the statement of witnesses and sent the seized material objects for chemical analysis and after receiving the chemical analysis report and after completion of the investigation, Investigating Officer has submitted the final report before the sanctioning authority 4 Spl. C.C. No.50/2010 and after getting the sanction to prosecute the accused No.1, Lokayuktha Police have filed the charge sheet before this court by alleging that accused No.1 and 2 have committed the offences punishable under Sec.7, 8, 10, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
3. This court took the cognizance and accused No.1 and 2 produced before this court were enlarged on bail. The accused were provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused No.1 and 2 for the offence punishable under Sec.7, 8, 13(1) (d) R/w Sec.13(2) of Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 6 witnesses as PW.1 to 6 and got marked Ex.P-1 to P-37 documents and MO.1 to 20 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against them. The accused have not let in any defence evidence on their behalf.
5 Spl. C.C. No.50/2010
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused No.1?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1, being a public servant, working as First Division Assistant in the office of Transport Commissioner, 5th floor, M.S. Building Bengaluru, for the purpose of issuing the permit for the vehicle of the complainant, demanded the illegal gratification of Rs.1,000/- from the complainant through the accused No.1 and on 07-01-2009, at about 5-25 PM, in his office, accused No.1 demanded and accepted Rs.1,000/- from the complainant, through accused No.2, as an illegal gratification, other than legal remuneration, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused No.1, being a public servant, working as being a public servant, working as First Division Assistant in the office of Transport Commissioner 5th floor, M.S. Building Bengaluru, on 07-01-2009, abused his official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.1,000/- from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under 6 Spl. C.C. No.50/2010 Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. Whether the prosecution proves beyond all reasonable doubt that the accused No.2, on 07-01-2009 at about 5-25 PM, in the office of Transport Commissioner, 5th floor, M.S. Building Bengaluru, obtained the illegal gratification of Rs.1,000/-
from the complainant, on behalf of the accused No.1, as per his instruction, in order to influence him to issue the permit to the complainant's vehicle and there by committed the offence punishable under Sec.8 of the Prevention of Corruption Act 1988?
5. What order?
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: IN THE NEGATIVE.
POINT No.5: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the sanction obtained to prosecute the accused and validity of the said sanction. As the accused No.1 is the public servant, working as First Division Assistant in the office of Transport Commissioner, 5th floor, M.S. Building Bengaluru and the 7 Spl. C.C. No.50/2010 allegations leveled against him is about he committing offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, obtaining the valid sanction from the competent authority is a mandatory and statutory requirement to prosecute the accused No.1. Before proceedings to consider the question relating to validity of sanction, let me first discuss the evidence let-in by the prosecution before this court.
10. CW.1-Mani, who was examined before this court as PW.1, deposed during the course of his evidence that, he was working as driver in a travel agency and the accused No.1, who was working in the office of RTO, Bengaluru, was allotted with the work of issuing the permit for vehicles. PW.1 further deposed that on 01-07-2009, he paid a sum of Rs.1,600/- by way of challen for obtaining the permit to the Qualis vehicle bearing No. KA-05-B-7643 to go to Shabarimalai and placed the challen before the accused No.1 and accused No1 demanded Rs.1,000/- from him. PW.1 further deposed that, thereafter he went to the Lokayuktha office and met CW.12 and lodged a complaint as per Ex.P.1. PW.1 further deposed that, a small cassette was given to him and he gave the currency notes of Rs.500/- and five currency notes of Rs.100/- each to one Manjunath and thereafter 8 Spl. C.C. No.50/2010 numbers of those currency notes were entered in the office of CW.12. PW.1 further deposed that powder was smeared on those currency notes and CW.3 placed the currency notes in his left shirt pocket and he was instructed to communicate the same after accused No.1 receive the money from him. PW.1 further deposed that thereafter he along with CW.3 entered the office of accused No.1 and accused No.1 asked him to pay Rs.1,000/- and told him to hand over the same to the broker, who is accused No.2. PW.1 further deposed that accused No.2 received the tainted notes from his right hand and gave the same to accused No.1 and accused No.1 kept the same in his table drawer. PW.1 further deposed that, after he giving the signal, Lokayuktha Police entered the office of accused and he told them that he has handed over the tainted notes to accused No.2. PW.1 further deposed that hand wash of accused No.1 and 2 were conducted and same turned into pink colour and Lokayuktha Police have also seized the tainted currency notes. PW.1 further deposed that trap mahazar was drawn as per Ex.P.2 and entrustment mahazar was drawn as per Ex.P.3.
11. CW.2-H.R.Kumaraswamy, who was examined before this court as PW.2, deposed during the course of his evidence that he and CW.3 were working in the office of ADLR, K.R. Circle, Bengaluru and 9 Spl. C.C. No.50/2010 on the instruction of their ADLR, they appeared before CW.12 on 07- 01-2009 and PW.1 was present and they were told that their presence is required to assist as witnesses in respect of the complaint lodged by PW.1. PW.2 further deposed that PW.1 produced one currency notes of Rs.500/- and five currency notes of Rs.100/- each and numbers of those currency notes were entered in a sheet as per Ex.P.22 and phenolphthalein powder was applied on those currency notes. PW.2 further deposed that CW.3 counted those currency notes and placed the same in the left shirt pocket and thereafter hand wash of CW.3 was made in sodium carbonate solution, which turned into pink colour and same was seized. PW.2 further deposed that CW.12 instructed to give the tainted currency notes to the accused No.1 and thereafter give the signal by wiping his face with the kerchief. PW.2 further deposed that he was instructed by CW.12 to accompany PW.1 and to watch as to what transpires between them. PW.2 further deposed that pre trap mahazar was drawn as per Ex.P.3 and photos were flashed as per Ex.P.4 to 10. PW.2 further deposed that thereafter they went to the 5th floor of M.S. Building, Bengaluru where the office of accused No.1 was located and he along with PW.1 entered the office of accused No.1 and accused No.1 asked PW.1 as to whether the money is brought and PW.1 answered in the affirmative and offered the tainted 10 Spl. C.C. No.50/2010 money to the accused No.1, who asked PW.1 to give money to the accused No.2 and PW.1 gave the money to accused No.2, who counted the same and gave currency notes to accused No.1, who kept the same in his table drawer. PW.2 further deposed that, after receiving the signal from PW.1, CW.12 and his staff came inside the office of accused No.1 and hand wash of accused No.1 was conducted in sodium carbonate solution, which turned into pink colour and same was seized. PW.2 further deposed that hand wash of accused No.2 was also conducted in the sodium carbonate solution, which turned into pink colour and same was seized. PW.2 further deposed that accused No.1 and 2 have given their explanation as per Ex.P.23 and 24 and trap mahazar was drawn as per Ex.P.2 and photographs were taken as per Ex.P.11 to 21. PW.2 further deposed that apart from the tainted notes, cash of Rs.24,050/-was also seized from other staff in the office of accused No.1 and he came to know that the accused No.2 is a broker to accused No.1 in his office.
12. CW.3-D.N. Manjunatha Babu, who was examined before this court as PW.3, deposed during the course of his evidence that he and CW.2 were working in the office of Commissioner of Survey Settlement and Land Records, Bengaluru and on 07-01-2009, they appeared before CW.12, who told that their presence is required to conduct the 11 Spl. C.C. No.50/2010 trap based on the complaint of PW.1. PW.3 further deposed that he placed one currency note of Rs.500/- and five currency notes of Rs.100/- each before CW.12 and numbers of those currency notes were entered as per Ex.P.22 and phenolphthalein powder was applied on those currency notes and he kept the same in the left side shirt pocket of PW.1. PW.3 further deposed that his hand wash were made in the sodium carbonate solution, which turned into pink colour and same was seized. PW.3 further deposed that CW.12 instructed CW.1 to give the tainted notes to accused No.1 in case of demand and thereafter give the signal by wiping his face with the kerchief. PW.3 further deposed that PW.2 was told by CW.12 to remain with PW.1 and to watch as to what transpires between them. PW.3 further deposed that pre trap mahazar was drawn as per Ex.P.3 and photographs were flashed as per Ex.P.4 to 10. PW.3 further deposed that thereafter they entered the office of accused No.1 and after sometime PW.1 and 2 came out of office by wiping face with kerchief and thereafter they entered the office of accused No.1. PW.3 further deposed that hand wash of accused No.1 was conducted in the sodium carbonate solution, which turned into pink colour and same was seized. PW.3 further deposed that hand wash of accused No.2 was also conducted in the sodium carbonate solution, which turned into pink colour and same 12 Spl. C.C. No.50/2010 was seized. PW.3 further deposed that Lokayuktha Police have seized the tainted currency notes from the table drawer of accused No.1 and metal seal used to seize the material objects were given to him. PW.3 further deposed that accused No.1 and 2 have given their statements as per Ex.P.23 and 24 and trap mahazar was drawn as per Ex.P.2 and photographs were flashed as per Ex.P.11 to 21.
13. CW.4-Bhaskar Rao, who was examined before this court as PW.4, deposed during the course of his evidence that, when he was working as Transport Commissioner in Bengaluru, he received a letter dated:29-09-2009 from the ADGP Lokayuktha, seeking sanction to prosecute the accused No.1. PW.4 further deposed that, along with the said letter, Lokayuktha Police have sent the copy of the complaint, FIR, trap mahazar, pre trap mahazar, chemical analysis report, statement of witnesses, records pertaining to the trap, attendance register, photos taken at the time of pre trap and trap mahazar, statement given by accused No.1 and 2 and one Prasanna Kumar. PW.4 further deposed that he has gone through all the records and satisfied that prima facie case is made out against accused No.1 to accord sanction and accordingly he has issued the sanction as per Ex.P.25. PW.4 further deposed that as the Transport Commissioner, he 13 Spl. C.C. No.50/2010 is the disciplinary authority and in that capacity, he has issued sanction to prosecute the accused No.1.
14. CW.13- U.D.Krishna Kumar, who was examined before this court as PW.5, deposed during the course of his evidence that, on 20- 10-2010, he received the file relating to this case from CW.12 and verified the file and since the investigation is completed, he filed the charge sheet against the accused. PW.5 further deposed that though name of one K.V.Prasanna Kumar was shown as accused No.3 in the mahazar, he was dropped while filing the charge sheet, as no evidence was found against him regarding the demand and acceptance of the bribe amount.
15. CW.12 Prasanna V Raju, who was examined before this court as PW.6, deposed during the course of his evidence that on 07-01- 2009 at about 2-00 p.m. CW.1 appeared before him and orally made the complaint and expressed inability to write the complaint in Kannada language and therefore, he wrote the complaint through his police staff as per Ex.P.1, on the basis of which, he has registered the FIR as per Ex.P.26. PW.6 further deposed that, by issuing the requisition letters as per Ex.P.27 and 28, he has secured CW.2 and 3 as witnesses, who appeared before him and he introduced his staff and 14 Spl. C.C. No.50/2010 CW.1 to CW.2 and 3 and gave the copy of the complaint to them. PW.6 further deposed that, on his instruction, CW.1 produced one currency note of Rs.500/- and five currency notes of Rs.100/- each and numbers of those currency notes were entered as per Ex.P.22 and phenolphthalein powder was applied on both the sides of the currency notes and on his instruction CW.3 again verified those currency notes and kept the same in the left side shirt pocket of CW.1. PW.6 further deposed that sodium carbonate solution was prepared and sample was taken in a bottle separately and in the remaining solution, both the hands of the CW.3 was washed and same turned into pink colour and it was seized. PW.6 further deposed that CW.1 produced the small audio cassette containing the conversation between him and the accused and same was displayed in the presence of CW.2 and 3 and it was seized. PW.6 further deposed that, he instructed CW.1 to meet the accused and hand over the tainted currency notes to him, when demanded by him and thereafter give the signal by wiping the face with kerchief. PW.6 further deposed that, he instructed CW.2 to become shadow witness and accompany CW.1, while he approaching the accused and observe all the proceedings between them. PW.6 further deposed that, he handed over a small micro cassette recorder to CW.1 and asked him to record the conversation between him and 15 Spl. C.C. No.50/2010 the accused. PW.6 further deposed that all these pre trap proceedings were photographed and photos were marked as per Ex.P.4 to 10 and pre trap mahazar as per Ex.P.3. PW.6 further deposed that thereafter they went towards the office of accused No.1 and CW.1 and 2 went inside the office and other members of the trap team stood outside the office on the passage. PW.6 further deposed that, at about 5.25 p.m. CW.1 came out of the office and gave the signal by wiping his face with the kerchief and immediately other members of the trap team entered the office and CW.1 shown the accused No.1 and said that he has demanded the bribe amount and asked him to hand over the same to accused No.2 and accordingly, he handed over the tainted notes to accused No.2. PW.6 further deposed that hand wash of accused No.1 and 2 were conducted and same turned into pink colour and same was seized. PW.6 further deposed that the tainted currency notes were recovered from the table drawer of the accused No.1 and same was seized. PW.6 further deposed that a metal seal containing English alphabet 'O' was used to seal the material objects and after obtaining the sample of that seal as per Ex.P.29, he handed over said seal to CW.3 by obtaining acknowledgement from him as per Ex.P.30. PW.6 further deposed that accused No.1 and 2 have given their statements per Ex.P.23 and 24 and other amount found with the accused was also 16 Spl. C.C. No.50/2010 seized. PW.6 further deposed that the documents relating to the complainant was seized as per Ex.P.31, along with the attendance register as per Ex.P.32. PW.6 further deposed that an amount of Rs.22,400/- was thrown near the corner of the door of accused No.1 and same was seized. PW.6 further deposed that he has drawn the trap mahazar as per Ex.P.2 and continued the further investigation and recorded the statement of witnesses. PW.6 further deposed that he has sent the seized material objects for chemical analysis and received the service particulars of the accused No.1 as per Ex.P.36 and sketch as per Ex.P.37 and issued the letter to get the sanction order and handed over the file to the Inspector of Police Sri. Lakshinarayana, since he was transferred.
16. The accused has not let in any defence evidence on his behalf. There is no dispute that the accused No.1 is a public servant, was working as FDA in the office of Transport Commissioner, M.S. Building, Bengaluru. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused No.1 is an essential requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
17 Spl. C.C. No.50/2010
17. In order to prove the sanction and validity of sanction, prosecution examined CW.4 Sri Bhaskar Rao as PW.4, who deposed about they receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused No.1. PW.1 further deposed that he has perused all those papers and prima facie satisfied about the commission of alleged offences by the accused No.1 and accorded the sanction as per Ex.P.25.
18. The evidence of PW.4 was not seriously challenged by the accused by cross examining him, in disputing the authority of PW.3 to issue sanction and application of mind by him, before issuing the sanction. In-fact, there is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused No.1, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.4 to prosecute the accused No.1.
19. There is no dispute regarding the authority of CW.4/PW.4 to accord the sanction to prosecute the accused No.1, being the Commissioner of Transport. In-fact, there was prima facie case against the accused to file the charge sheet. Having found the same, this court 18 Spl. C.C. No.50/2010 has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charges against the accused. Under such circumstances, one cannot say that the sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused No.1. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 TO 4:
20. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. These accused were charged for the offences punishable under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused No.1, being a public servant, working as was working as FDA in the office of Transport Commissioner, M.S. Building, Bengaluru, demanded the bribe amount of Rs.1,000/- from the complainant to issue the permit to his vehicle and accepted the bribe amount of Rs.1,000/- on 07-01-2009, through accused No.2 and they were trapped by the Lokayuktha Police.
21. In order to bring home the guilt of the accused for the offence under Sec. 7, 8 and 13 of the Prevention of Corruption Act 19 Spl. C.C. No.50/2010 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused No.1. Only if the prosecution able to establish these two factors, accused can be held as guilty of committing the offences punishable under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
22. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused No.1 has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the 20 Spl. C.C. No.50/2010 presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
23. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of 21 Spl. C.C. No.50/2010 the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
24. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988 is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
25. The Hon'ble High Court of Karnataka has reiterated the same view in a recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
22 Spl. C.C. No.50/2010
26. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, prosecution has to prove before this court that official work is to be done by the accused, relating to the complainant, so as to demand the illegal gratification from him.
27. As per the prosecution, alleged demand of bribe by the accused No.1 for issuance of the permit to the vehicle of the complainant. Even though the permit has to be signed by the Commissioner of Transport, accused No.1 has not disputed about he having some official act to be performed by him in respect of the issuance of permit, being the First Division Assistant working in the office of Transport Commissioner. When any application is filed seeking the permit to the vehicle, it is the accused No.1, who has to receive the application, verify the same and put up the file before the authority, who has to sign the permit and accused No.1 has to issue the same to the applicant. Even though the accused No.1 contended that, at the time of trap, permit was ready and no official work is 23 Spl. C.C. No.50/2010 pending and to be performed him, still there is no dispute that the accused No.1 has got some official work to be performed when the complaint was lodged before the Lokayuktha Police. I will consider the contention of the accused No.1 regarding the permit being ready for issuance at the time of trap, during the course of my later discussion. But, regarding the pendency of official work of the accused No.1, relating to issuance of permit to the vehicle, as sought by the complainant, there is no serious dispute as such. So, prosecution has proved that accused No.1 has got some official work to be performed in respect of the application given by the complainant for issuance of permit relating to his vehicle.
28. Next question, which requires to be considered by this court is regarding the demand of bribe amount, which is also one of the important requirements to constitute the offence under Sec.7 of the Prevention of Corruption Act. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for 24 Spl. C.C. No.50/2010 constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
29. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
30. The Hon'ble Supreme Court has expressed the same view in its Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma) wherein it was held that mere recovery of tainted notes is not enough, as there is necessity of showing the demand for illegal gratification. So the ratio laid down in all those decisions are very clear on this point that the initial burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused No.1.
31. According to the prosecution, there was demand of bribe amount by the accused No.1 on two stages. Firstly, the demand was made before lodging the complaint when the complainant approached the accused No.1 to get the permit. The second stage where the 25 Spl. C.C. No.50/2010 accused No.1 demanded the bribe amount is after registration of the FIR and pre trap mahazar and when the complainant met the accused No.1 to get the permit at the time of trap. So far as the demand of bribe amount made by the accused No.1 before lodging the complaint, prosecution relied upon the complaint allegations, evidence of the complainant and recordings made in the audio cassette. Now let me first consider the evidence let-in by the prosecution regarding the alleged demand of bribe amount made before lodging the complaint.
32. The complainant examined before this court as PW.1 and the complaint lodged by him is marked as per Ex.P.1. Of-course in the complaint, there is allegation that when the complainant met the accused No.1 to get the permit for his vehicle, accused No.1, through his broker, has demanded the bribe amount of Rs.1,000/- from him. This court cannot accept mere complaint allegation, unless it is supported or corroborated with other evidence, especially with the oral evidence of the complainant. The complaint allegations may be sufficient to register the FIR and to set the criminal Law into motion and to conduct the investigation in respect of the allegation made in the complaint. So far as this court is concerned, complaint allegations 26 Spl. C.C. No.50/2010 have to be proved by the prosecution by examining the complainant and by leading other corroborative evidence before this court.
33. The complainant, who was examined before this court as PW.1, in his examination in chief deposed regarding the lodging of complaint and other subsequent proceedings taken place in his presence regarding the pre trap proceedings and drawing of pre trap mahazar. PW.1 also deposed regarding the trap proceedings conducted in his presence. The examination in chief of PW.1 was recorded on two hearing dates i.e., on 04-07-2014 and on 19-11- 2014. On 19-11-2014, after recording further examination in chief, learned counsel for the accused prayed time for cross of PW.1 and accordingly, time granted and case was posted for cross-examination of complainant/PW.1 on 12-01-2015. Thereafter, complainant/PW.1 was not at all kept present before this court for cross-examination. In- fact, when this case was pending before the 23rd Additional City Civil and Special Court, Bengaluru in CCH-24, summons were issued on ten occasions to secure the presence of complainant/PW.1 for his cross- examination. In spite of the same, his presence was not secured before the court. Thereafter bailable warrants were issued against the complainant/PW.1 on three occasions and in spite of the same, his 27 Spl. C.C. No.50/2010 presence was not secured before the court. After the case was transferred to this court during March 2016, this court issued bailable warrants to complainant/PW.1 on three occasions and thereafter non- bailable warrant was issued to complainant/PW.1 on six occasions, including the issuance of NBW through Superintendent of Police of Lokayuktha, Bengaluru. In spite of issuing the summons, bailable warrant and non-bailable warrant nearly on 20 occasions, presence of complainant/PW.1 was not secured before this court. It was reported to this court that the whereabouts of complainant is not known and his presence cannot be secured before this court. Because of the said report, this court has rejected the prayer of learned Public Prosecutor and the evidence of complainant/PW.1 was closed. So, there is only the examination in chief of complainant/PW.1 and he was not offered for cross-examination.
34. As per the rule of evidence, oral evidence includes examination in chief, cross-examination and re-examination. If any witness is not offered for examination in chief, or for cross- examination and re-examination, it would be incomplete evidence, which cannot be considered by this court, as an evidence. In this particular case, though complainant/PW.1 was examined in chief, he 28 Spl. C.C. No.50/2010 was not offered for cross-examination, in spite of giving opportunities for the period of about two years. When PW.1 was not at offered for cross-examination, his evidence is incomplete and it cannot be considered. Such evidence cannot be used against the accused, because accused has lost the right of cross-examining the complainant/PW.1, since he was not offered for cross-examination. When the accused has lost the right of cross-examination, because of the non-appearance of the complainant/PW.1 before this court, examination in chief of PW.1 cannot be used against the accused.
35. In this regard, it is necessary to refer a decision of Madras High Court reported in 1996(1) Crimes 416 (H.C.)(S.M. Ali Mohamed V/s State). In that particular case also, complainant was examined in chief and partly cross-examined and subsequently did not appear for further cross-examination, despite of issuance of non- bailable warrant against him. Under such circumstances, it was held by the Madras High Court that Statements of a witness would not be read as evidence against a party, if it was not tested by cross-examination and without opportunity being afforded for the purpose. In this particular case, because of the non-appearance of the complainant/PW.1 during the subsequent stage, accused did not get an opportunity of cross-examining him. When the statement of a 29 Spl. C.C. No.50/2010 witness was not tested with cross-examination, such a statement cannot be used against the person, who did not get an opportunity of cross-examination. In view of the ratio laid down in the above referred decision, this court cannot consider the evidence of Complainant/PW.1, because it is incomplete evidence. It is incomplete evidence, because he was not at all offered for cross-examination. According to me, prosecution failing to offer PW.1 for the test of cross-examination is a huge set back for the prosecution. This court has to consider that there is no evidence of the complainant to prove the complaint allegations and also the subsequent proceeding regarding conducting of pre trap procedures, drawing of pre trap mahazar, handing over the tainted currency notes to the accused and trapping the accused.
36. The learned Public Prosecutor, by drawing the attention of this court to Sec.33 of the Indian Evidence Act 1872, has argued before me that the complainant/PW.1 was examined in chief fully and his cross-examination was deferred, since the accused prayed time. As the accused failed to cross-examine the witness, when the witness has appeared before the court, his examination in chief has to be considered by this court. Sec.33 of the Indian Evidence Act 1872 deals with the relevancy of the evidence given by a witness during earlier 30 Spl. C.C. No.50/2010 stage of the proceeding for the subsequent stage of the same proceedings or for subsequent proceedings in between the same parties. First of all, Sec. 33 of the Indian Evidence Act is not applicable to the present facts and circumstances of this case, because the circumstance of this case is not relating to considering the relevancy of the evidence given by a witness during subsequent stage of the same proceedings. Of-course, if a witness has given evidence, if his presence could not be secured subsequently due to the death of the witness or he was not found or if he is incapable of giving evidence or is kept out by the adverse party or his presence cannot be obtained without an amount of delay or expenses, such an evidence can be considered by this court as relevant. The proviso to Sec.33 of the Indian Evidence Act makes it very clear that, adverse party in the proceedings had the right and opportunity to cross-examine the witness and only if the evidence given by such a witness is relevant for the subsequent stage of the same proceedings or any other proceedings in between the same parties. Sec.33 of the Indian Evidence Act has no application to the facts and circumstances of this case, because in the case on hand PW.1 was not at all offered for cross-examination. When PW.1 was not at all offered for cross-examination, his evidence cannot be considered even as per the Sec.33 of the Indian Evidence Act. Therefore I found 31 Spl. C.C. No.50/2010 no substance in the arguments of the learned Public Prosecutor in this regard.
37. As there is no evidence of the complainant, complaint allegations cannot be considered by this court, because there is absolutely no evidence to corroborate the complaint allegations, as the complainant has not tendered him for the cross-examination. When the complaint allegations cannot be considered and when there is no evidence of the complainant, I have to say that the prosecution case regarding the alleged demand of bribe amount before lodging the complaint, cannot be accepted by this court.
38. Other evidence on which the prosecution relied upon to prove the demand of bribe, before lodging the complaint, is recordings made by the complainant in a small tape recorder. In order to prove the same, prosecution has produced a small audio cassette as per M.O.4. As per the pre trap mahazar, along with the complaint, complainant has produced the small cassette containing the conversation between him and accused No.1. Except the said small cassette, no other evidence has been let in by the prosecution regarding the recordings made in the tape recorder, about the conversation between the complainant and the accused No.1. If I draw 32 Spl. C.C. No.50/2010 my attention to the complaint allegations, there is no reference about the complainant recording the conversation, when the accused No.1 demanded the bribe amount from him. The complainant, even during the course of his evidence before this court as PW.1, has not said about he recording the conversation and handing over small cassette to the Investigating Officer, along with the complaint. Though the Investigating Officer said that the complainant has produced a small cassette containing the conversation between accused No.1 and complainant, same was not displayed in the presence of the witnesses. In page 3 of Ex.P.3 pre trap mahazar, there is reference about the complainant producing the small cassette. It was also written in the pre trap mahazar that, said cassette was put into a blank cover and it was sealed and seized as Article No.3. Absolutely no explanation is forth coming from the Investigating Officer for not displaying the recordings in the cassette in the presence of the CW.2 and 3. There is also no transcription of the recordings in the said cassette to know as to what is the actual conversation between them. Normally, in the cases like this, when the conversation regarding the demand of bribe is recorded by the complainant, said recordings would be displayed in the presence of witnesses and the recordings would also be transcripted into writing in the presence of the witnesses. All those 33 Spl. C.C. No.50/2010 procedures were not all followed by the investigating agency in this case and no explanation is forth coming for not following all those formalities. This would create huge doubt in the mind of this court regarding genuineness of the small cassette produced as per MO.4 and as to whether there was any such conversation in the cassette regarding the demand of bribe amount.
39. It is pertinent to note here that neither the complainant nor the Investigating Officer has explained as to when and through which instrument, recording was made by the complainant in the said cassette. It is also not explained as to who has given the instrument to the complainant to record the said conversation. The Investigating Officer, who was examined before this court as PW.6, during the course of his cross-examination, has specifically deposed that complainant may have been guided by some others to approach the accused with recordings, before lodging the complaint. PW.6 also said that he has not come to know as to who guided the complainant to met the accused along with voice recorder. So, there is absolutely no explanation as to when the said recording was made and through which instrument the recording was made and who has given that instrument to the complainant.
34 Spl. C.C. No.50/2010
40. It is pertinent to note here that entire incident relating to this case, including filing of application to get the permit, till trapping the accused and drawing of trap mahazar, were all taken place in one day i.e. on 07-01-2009. The documents collected by the investigating agency as per Ex.P.31 goes to show that on 07-01-2009 the complainant filed an application to get the permit for his vehicle. It is on the very same day, requisite fee was paid by way of challen. The complainant claims that on the very same day, there was demand of bribe amount by the accused No.1. On the very same day, complainant has approached the Lokayuktha Police to lodge the complaint. On the very same day, FIR was registered, witnesses were secured, pre trap proceedings were made and pre trap mahazar was drawn. On the very same day, accused No.1 and 2 were trapped by the Lokayuktha Police. If the application seeking the permit was filed on the very same day and the demand was made on that occasion, the recordings in the small cassette would have been recorded on the very same day. The complainant, in his evidence or in the complaint, failing to say about he making recordings of his conversation with the accused No.1, through which he demanded the bribe amount, complainant and the Investigating Officer failing to say about all these during the course of their evidence, coupled with not displaying the 35 Spl. C.C. No.50/2010 recordings in audio cassette, also coupled with not making the transcription of those recordings in the cassette, in the presence of the witnesses, would all create doubt as to the genuineness of the claim of the prosecution regarding recordings made by the complainant and small cassette produced before this court.
41. Even for the sake of arguments, it is accepted that there was such recordings made through audio cassette recorder, evidence produced before this court is only a small audio cassette. The instrument, through which the recordings were made in the audio cassette, has not been produced before this court. In the cases like this, instrument through which the recording was made is the primary evidence and same has to be produced before this court. But, the prosecution has failed to produce the primary evidence before this court. The evidence produced in the form of a small cassette is only the secondary evidence, which is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act. When the prosecution has not produced the primary evidence of the electronic evidence and produced only the secondary evidence, which is not accompanied by the certificate under Sec. 65-B of the Indian Evidence Act, such an evidence cannot be considered and accepted by this court. This view of 36 Spl. C.C. No.50/2010 mine is based upon the three Judges Bench Decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC
473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of the electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65-B of the Indian Evidence Act, said secondary evidence is not admissible in evidence.
42. So, now it is well established principle of law that, in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under Sec. 65-B of the Indian Evidence Act in respect of genuineness of the said secondary evidence. In the case on hand, though the prosecution has produced only the secondary evidence in respect of the recordings in the audio cassette, it is not supported by the certificate under Sec. 65- B of the Indian Evidence Act. It is very unfortunate that, in spite of the mandatory provisions and decision of the Hon'ble Supreme Court on this point, investigating agency is still continuing to do the mistake of producing the secondary evidence, without the certificate under Sec. 37 Spl. C.C. No.50/2010 65-B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of audio cassette in order to prove the demand of bribe before lodging the complaint.
43. Though the Investigating Officer has collected the small cassette, no attempt was made to obtain the specimen voice of the accused No.1 and send the same to the forensic examination by comparing his specimen voice with the voice found in the recordings made in the audio cassette. Absolutely no explanation is forth coming from the Investigating Officer for not getting the opinion of the expert to prove the voice of the accused No.1 in the said small cassette. More over, voice recorder was also not displayed before the senior officials of the accused No.1 to get the identification of voice of accused No.1. Absolutely there is no evidence to show that the voice in the recordings found in the cassette is that of accused No.1. Under all these circumstances, I say that this court cannot accept the small cassette produced by the Investigating Officer to prove that accused No.1 has demanded the bribe amount and that conversation was recorded in the said small cassette. So, prosecution has failed to prove 38 Spl. C.C. No.50/2010 the alleged demand of bribe amount made by the accused No.1 before lodging the complaint.
44. Even if this court considers the complaint allegations and incomplete evidence of complainant/PW.1, there are material contradictions regarding the demand of bribe before lodging the complainant. In the complaint, it was alleged that, accused No.1 demanded the bribe amount of Rs.1,000/- through a broker. The complainant failed to say the name of broker. There is also no evidence to say that he is the same broker, who was subsequently trapped by the Lokayuktha police and made as the accused No.2 in this case. In his examination-in-chief, complainant/PW/1 has not said about accused No.1 demanding the bribe through the broker. Rather, PW.1 said that accused No.1 has demanded the bribe amount from him. These contradictions also would create doubt as the complaint allegations and evidence of PW.1. There is no other evidence to prove the demand of bribe made by the accused No.1, before lodging the complaint. Therefore, I hold that the prosecution has miserably failed to prove the demand of bribe made by the accused No.1, before lodging the complaint.
39 Spl. C.C. No.50/2010
45. Now, the next question which requires to be considered by this court is regarding the demand of bribe amount after lodging the complaint and at the time of trap. In order to prove the demand on this occasion, evidence relied upon by the prosecution is the evidence of the complainant, who was examined as PW.1, evidence of shadow witness, who was examined as PW.2 and also the recordings in the small cassette, which was given to the complainant at the time of pre trap proceedings. It is on the basis of all these evidence, prosecution tried to prove that there was demand of bribe amount made by the accused No.1 just before the trap.
46. So far as the evidence of complainant is concerned, I have already discussed as to why his evidence cannot be considered and accepted by this court and can not be used against the accused, as he as not offered for cross-examination. Therefore, prosecution had no benefit of the evidence of the complainant to prove the demand of bribe amount made at the time of trap. So far as the recordings in the small cassette is concerned, recitals in page No.3 of the pre trap mahazar shows that during the pre trap proceedings a small tape recorder was given to the complainant to record the conversation between him and the accused. So as per the prosecution case, Investigating Officer has given a small tape recorder to the 40 Spl. C.C. No.50/2010 complainant. If I draw my attention to the page No.3 of Ex.P.2 trap mahazar, after hand wash procedures of the accused No.1 and 2 were conducted, when the Investigating Officer has asked the complainant to produce the small tape recorder given to him, complainant has produced a small audio cassette. So, these two recitals in the pre trap mahazar and trap mahazar goes to show that at the time of pre trap procedures a tape recorder was given to the complainant to record the conversation, whereas though the Investigating Officer has requested the complainant to produce the tape recorder given to him, he produced only a small audio cassette. Said same small audio cassette was produced before this court and marked as M.O.15.
47. Again the recordings in the said audio cassette was not displayed in the presence of CW.2 and 3 and in the presence of the senior official of the accused No.1 by name K.R.Dharmegowda, who has produced the records before the Investigating Officer. Again no explanation is forth coming from the Investigating Officer for not displaying the recordings in the small cassette. Even the conversation recorded in the small audio cassette was not transcripted into writing to know as to what is the actual conversation made between them. The accused No.1 has specifically denied about he making any demand 41 Spl. C.C. No.50/2010 of bribe amount from the complainant. The complainant was not offered for cross-examination. Therefore, best evidence available for the prosecution to prove the demand is recordings made in the audio cassette. But, for the reasons best known to the Investigating Officer, recordings in the said audio cassette was not displayed in the presence of CW.2 and 3 and its recordings were also not transcripted. Again the original tape recorder, in which the recording was made, was not produced before the court. There is no certificate under Sec.65(B) of the Indian Evidence Act, annexed to the audio cassette produced as per M.O.15. There is also no expert opinion regarding the voice of the accused No.1 found in the said audio cassette. There is also no report by the senior official of the accused No.1 to certify that the voice of the accused No.1 was found in those recordings. Under all these circumstances, even this audio cassette cannot be considered by this court, as a proof of demand of bribe made by the accused No.1, just before the trap.
48. Another evidence available for the prosecution to prove the alleged demand of bribe amount by the accused No.1, at the time of trap, is the oral evidence of shadow witness, who was examined before this court as PW.2. One Kumara Swamy, who was examined before 42 Spl. C.C. No.50/2010 this court as PW.2, in his examination in chief deposed that, after he along with PW.1 i.e. complainant entered the office of accused No.1, accused No.1 and 2 were found in the office and complainant asked the accused No.1 about renewal of permit and accused No.1 asked PW.1 as to whether money is brought. This is only the statement given by PW.2 regarding the demand of bribe amount by the accused No.1 just before the trap. Now the question before this court is as to whether theory of the prosecution regarding demand of bribe by the accused No.1, at the time of trap, can be accepted, only on the basis of the sole testimony of PW.2. As I said earlier, prosecution had no benefit of the evidence of complainant, because he has not been offered for test of cross-examination. Regarding the recordings in the voice recorder, primary evidence has not been produced before the court and there is also no evidence to show that the voice in the recordings is that of the accused No.1. Therefore, only evidence available before this court to prove the demand of bribe by the accused No.1 at the time of trap is the above referred statement of shadow witness/PW.2.
49. Regarding the appreciation of evidence of government officials as shadow witness and panch witness, it is necessary to 43 Spl. C.C. No.50/2010 consider the recent decision of Hon'ble High Court of Karnataka reported in 2016 (1) AKR 181 (Dr. S.R. Chowdaiah V/s State of Karnataka). It was held in the above decision that, when both the panchas were the Government officials, being the Government servants, there was likelihood that they supporting the prosecution against the accused, because of the fear of initiation of disciplinary proceedings. Therefore, their evidence should be carefully appreciated and it requires corroboration. In that particular case, complainant, who has lodged the complaint, turned hostile to the prosecution case. The conviction of the public servant by the trial court was based on the evidence of pancha witnesses, who are the Government officials. The Hon'ble High Court has set aside the order of the conviction passed by the trial court and acquitted the accused, by holding that the evidence of government officials can not be sole basis for convicting the public servants in bribe cases. In this particular case, complainant has not been offered for cross-examination. Therefore, there is no evidence of the complainant. The evidence available before this court in support of the prosecution case is only the evidence of shadow witness. According to me, without any corroboration, holding the accused as a guilty, on the basis of the sole testimony of the shadow witness, is not safe. 44 Spl. C.C. No.50/2010
50. During the course of his cross-examination, shadow witness/PW.2 specifically admitted that he had assisted the Lokayuktha Police in or about 3 to 4 cases of this nature as a witness. This answer of PW.2 would suggest that he has acted as witness in more than 3 to 4 cases of this nature registered by the Lokayuktha police. It was held by the Hon'ble Supreme Court in a decision reported in 1995 Crl.L.J. 3623 (State of Gujarat through C.B.I. V/s Kumudchandra Pranjivan Shah) that, when the pancha witness has acted as a police witness in number of cases, conviction cannot be based on this evidence, as his evidence is untrustworthy. In view of the above decision, I feel it is not safe to relay only on the sole and uncorroborated evidence/PW.2 to hold that the prosecution has proved the demand of bribe by the accused No.1.
51. There are other circumstances also before this court which come in the way of this court in accepting the prosecution version and evidence of its witnesses. As I said earlier, all the incident relating to this case, including filing of application seeking permit, till trapping the accused has taken place on a single day i.e., on 07-01-2009. It is not the case of the complainant or the prosecution that by demanding the bribe amount, accused No.1 has delayed the issuance of the permit. If 45 Spl. C.C. No.50/2010 I draw my attention to the complaint allegations, initially accused No.1 demanded the bribe amount of Rs.1,000/- through his broker. So, there is no direct demand by the accused No.1, even as per the complaint allegations. When the complainant shown his inability to pay the bribe amount, accused No.1 asked him to meet him at about 5-00 p.m. in the evening. Immediately, complainant approached the Lokayuktha Police. It is not that at 5-00 p.m. complainant met the accused No.1 and he has not handed over the permit, by demanding the bribe amount. If I draw my attention to the file seized by the Lokayuktha Police as per Ex.P.31, permit was ready at the time of trap at about 5.45 p.m. Even though the alleged bribe amount was not paid to the accused No.1, as demanded by him, still he kept ready the permit to hand over the same to the complainant. But, in the meanwhile, complainant came with the Lokayuktha Police and trapped the accused No.1. At the time of trap, when Ex.P.31 file was seized, the permit was ready. The Investigating Officer deposed during the course of his cross-examination that original permit has been already handed over to the complainant by the department. So at the time of trap, complainant has already received the permit, which he has sought. Under all these circumstances, theory of the prosecution that the accused No.1 demanded the bribe amount for issuance of the 46 Spl. C.C. No.50/2010 permit to the complainant appears to be improbable and unbelievable. Considering all these aspects, I hold that the prosecution has failed to prove one of the most essential and important requirement to constitute the offence under Sec.7 of the Prevention of Corruption Act, 1988 i.e., demand of bribe amount by the accused.
52. The next question, which requires to be considered by this court, is regarding the acceptance of the bribe amount. In the case on hand, prosecution has relied upon the pre trap proceedings conducted by the Lokayuktha Police before laying the trap, evidence of complainant, shadow witness, panch witness and positive phenolphthalein test report. It is on the basis of these evidence and circumstances, prosecution tried to prove that there was acceptance of the bribe amount by the accused No.1 and 2. It is well established principle of law, held through the catena of decisions of Hon'ble Supreme Court and High Courts that mere acceptance of the tainted currency notes or accused possessing the same and positive phenolphthalein test report cannot be the basis to hold that the accused has accepted the same as an illegal gratification, when the prosecution unable to prove the demand made by the accused. In this particular case, in view of my discussion and reasoning, prosecution 47 Spl. C.C. No.50/2010 failed to prove the demand of illegal gratification made by the accused. Under such circumstances, even if the prosecution proves the acceptance of the tainted currency notes and accused possessing the same, this court cannot hold him as the guilty of the accepting the illegal gratification or committing the criminal misconduct being the public servant.
53. Before the Lokayuktha Police proceed to lay the trap, pre trap proceedings were conducted and pre trap mahazar was drawn in the office of Lokayuktha Police, in the presence of complainant, shadow witness and panch witness. The accused has not at all disputed the same, as no cross-examination was made to any of the prosecution witnesses and no arguments were canvassed in denying or disputing the pre-trap proceedings and drawing of pre-trap mahazar. The prosecution has independently proved the pre trap proceedings and drawing of pre trap mahazar by examining the CW.2 and 3 and also the Investigating Officer. So, prosecution has proved the conducting of pre trap proceedings and pre trap mahazar, before proceeding to lay the trap.
54. Regarding acceptance of the tainted currency notes by the complainant, shadow witness deposed during the course of his 48 Spl. C.C. No.50/2010 evidence as PW.2. Another pancha witness, who was accompanied the Lokayuktha Police has also deposed as PW.3 that the currency notes were found in the table drawer of the accused No.1. Both these witnesses have also deposed about hand wash proceedings conducted by the Lokayuktha Police and sodium carbonate solution, in which the hands of accused No.1 and 2 were washed, turning into pink colour. Again in view of my above discussion and the ratio laid down by the Hon'ble High Court of Karnataka in Dr. S.R.Chowdaiah V/s State of Karnataka and Hon'ble Supreme Court in State of Gujarath V/s Kumudchandra Pranjivan Shah's case, conviction cannot be based only upon the evidence of the official witnesses. Moreover, there are contradictions in between the evidence of PW.1 to 3. Though CW.2/PW.2 said that he acted as a shadow witness and accompanied the complainant while entering into the office of accused No.1, complainant during the course of his examination in chief said that it is CW.3/PW.3 was with him when he entered the office of accused No.1. According to me, it is a materials contradiction in between the evidence of the prosecution witnesses. Therefore, their oral testimony do not inspire the confidence to hold that the accused have received the tainted currency notes as an illegal gratification. 49 Spl. C.C. No.50/2010
55. Even if this court accept the theory of the prosecution that there is acceptance of tainted currency notes by the accused, still the accused can not be convicted for the alleged offence, as the prosecution failed to prove the demand of bribe by the accused. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena W/o Balwant Hemke V/s State of Maharastra). It was held by the Hon'ble Supreme Court in the above decision that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the accused, in the absence of evidence to prove that same was demanded by the accused and it was voluntarily accepted.
56. One more decision, which can be considered on this point the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka). It was held in the said decision that mere possession and recovery of the tainted currency notes from the accused, without the proof of demand, would not attract offences under Sec. 13(1)(d) of the Prevention of Corruption Act 1988.
50 Spl. C.C. No.50/2010
57. It is also necessary to refer the decision of Hon'ble Supreme Court reported in 2015 SCC Online SC 814 (2015 AIR SCW 526) (P. Sathyanarayana Murthy V/s District Inspector of Police and another). It was held in the above decision that, mere possession and recovery of currency notes from accused without proof of demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
58. Same view expressed by the Hon'ble High Court of Karnataka in a decision reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka), wherein it was held that, mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused, in the absence of any demand and acceptance of the amount as an illegal gratification. Mere acceptance of money by the accused will not be sufficient to fasten the guilt. It was further held in the above decision that, it is not the passing of money alone which 51 Spl. C.C. No.50/2010 establishes a Corruption charge, because the grave-men of the offence lies in the fact that much was paid for a corrupt purpose and it is that aspect which is paramount. Therefore, merely on the basis of the accused having tainted currency notes with him at the time of trap and positive phenpthelene test, this court can not hold that the accused received the same as illegal gratification and convict them.
59. The prosecution placed much reliance upon other amount found with the accused and in the office of accused and tried to impress upon this court that these amount were acquired by the accused and other officials by corrupt means. Of-course the trap mahazar, evidence of Investigating Officer and pancha witnesses reveals that after the tainted currency notes were recovered from the accused No.1, when the search was conducted an amount of Rs.8,900/- was found with the accused No.1 and an amount of Rs.2,970/- was found with the accused No.2. PW.6 also deposed that an amount of Rs.24,050/- was found with one official by name Sri K.V.Prasanna Kumar and Rs.22,400/- was near the corner of the door of office of the accused No.1. All these amounts were recovered and they were marked before the court as M.O.17 to 20, apart from the 52 Spl. C.C. No.50/2010 tainted currency notes of Rs.1,000/-. Of-course there is no satisfactory explanation regarding finding of those amount with the accused. But on that basis, this court cannot hold that the accused No.1 and 2 were guilty of the committing the alleged offences. Mere finding of excess amount with the accused cannot be a basis to hold that they were acquired the same by corrupt practice. It may be a ground for initiating the disciplinary proceedings and departmental proceedings against those officials. But, it cannot be a ground for convicting the accused in the criminal cases like this. So far as official by name one Sri K.V Prasanna Kumar is concerned, even though he was arrested after the trap, no charge sheet was filed against him. PW.5 deposed before this court that, while filing the charge sheet, no evidence was found against him regarding the demand and acceptance of the bribe amount. So, though the official by name Sri K.V.Prasanna Kumar was found with the excess amount of Rs.24,050/- no evidence was found against him to file the charge sheet. Even in respect of the other amount found with the accused No.1 and 2 and amount found near the corner of the door of office of accused, Investigating Officer has not collected any evidence to show that they were acquired by corrupt practice and by making demand and acceptance by these accused. Therefore, on that score, these accused cannot be found guilty. As 53 Spl. C.C. No.50/2010 there is no proper explanation regarding those amount, including the tainted currency notes, even those amounts are to be confiscated to the Government.
60. To sum-up my discussion, though the prosecution has proved that the official act is pending before the accused No.1 in respect of the complainant, prosecution has failed to prove the demand of bribe amount by the accused, which is an essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. The prosecution has failed to discharge the initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of 54 Spl. C.C. No.50/2010 doubt, accused No.1 and 2 have to be acquitted. Accordingly, I answer the points No.2 to 4 in the Negative.
POINT No.5:
61. In view of my findings on the above points, accused No.1 and 2 deserves the acquittal. Accordingly, I proceed to pass the following order:
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused No.1 and 2 are acquitted from the charges leveled against them for the offence punishable under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused No.1 and 2 and their surety stands cancelled.
MO.1 metal seal is ordered to be returned to the Lokayuktha police, Bengaluru City Wing, after the expiry of appeal period.
MO.2 to 15 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.55 Spl. C.C. No.50/2010
MO.16 to 20 currency notes are ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 6th day of February 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Mani PW.2: H.R.Kumaraswamy PW.3: D.N. Manjunatha Babu PW.4: Bhaskar Rao PW.5: U.D.Krishna Kumar PW.6: Prasanna V Raju LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Complaint Ex.P.1(a & b): Signatures of PW.1 and 6 Ex.P.2: Trap mahazar Ex.P.2(a): Signature of PW.1.56 Spl. C.C. No.50/2010
Ex.P.2(b to i): Signatures of PW.2 Ex.P.2(j to q): Signatures of PW.3 Ex.P.2(r): Signature of PW.6 Ex.P.2(s and t): Signatures of accused and Prasanna Kumar. Ex.P.3: Pre trap mahazar Ex.P.3(a): Signature of PW.1. Ex.P.3(b to e): Signatures of PW.2 Ex.P.3(f to i): Signatures of PW.3 Ex.P.3(j): Signature of PW.6 Ex.P.4 to 10: Photos. (Pre trap) Ex.P.11 to 21: Phots. (Trap) Ex.P.22: Currency notes details sheet Ex.P.22(a & b): Signatures of PW.2 Ex.P.22(c): Signature of PW.3 Ex.P.22(d): Signature of PW.6 Ex.P.23: Explanation of accused No.1 Ex.P.23(a to c): Signatures of PW.2,3 & 6 Ex.P.24: Explanation of accused No.2 Ex.P.24(a to c): Signatures of PW.2,3 & 6 Ex.P.25: Sanction order Ex.P.25(a): Signature of PW.4 Ex.P.26: FIR Ex.P.26(a): Signature of PW.6 Ex.P.27 & 28: Letters to depute the officials Ex.P.27(a) & 28(a): Signatures of PW.6 Ex.P.29: Sample seal Ex.P.29(a): Signature of PW.6 Ex.P.30: Acknowledgement of CW.3 57 Spl. C.C. No.50/2010 Ex.P.31: Copies of documents page 34 to 39 & 41 & 42 of charge sheet Ex.P.32: Copy of attendance Ex.P.33: Copy of cash declaration Ex.P.34: Document of charge sheet page 44 to 53 Ex.P.35: Chemical analysis report Ex.P.36: Service particulars Ex.P.37: Sketch LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: "O" metal seal MO.2: Sample solution bottle MO.3: Pink colour solution bottle MO.4: Cover containing audio cassette MO.5: Sample sodium carbonate solution MO.6: Pink colour solution bottle MO.7: Pink colour solution bottle MO.8: Pink colour solution bottle MO.9: Pink colour solution bottle MO.10: Sample solution bottle MO.11: Pink colour solution bottle MO.12: Pink colour solution bottle MO.13: Pink colour solution bottle MO.14: Pink colour solution bottle MO.15: Cover containing audio cassette MO.16: Tainted currency notes MO.17 to 20: Seized amount 58 Spl. C.C. No.50/2010 LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 59 Spl. C.C. No.50/2010 (Judgment pronounced in the open Court vide separate order) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused No.1 and 2 are acquitted from the charges leveled 60 Spl. C.C. No.50/2010 against them for the offence punishable under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The bail bond executed by the accused No.1 and 2 and their surety stands cancelled. MO.1 metal seal is ordered to be returned to the Lokayuktha police, Bengaluru City Wing, after the expiry of appeal period. MO.2 to 15 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.16 to 20 currency notes are ordered to be confiscated to the State Government after expiry of appeal period. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)