Bangalore District Court
Lokayukta Police Inspector vs S.N.Jagadeesh on 10 September, 2018
1 Spl.C.C.No.344/2010
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 10th day of September, 2018
Special C.C. No.344/2010
Complainant: Lokayukta Police Inspector
City Division, Karnataka Lokayukta,
Bengaluru,
(By Public Prosecutor)
vs.
Accused: S.N.Jagadeesh,
s/o.Late Nanjegowda, 47 years,
Meter Reader, Office of the
Assistant Executive Engineer, W-4,
Sub-Section, BWSSB, West of Chord
Road, Bengaluru, r/at No.124/50,
9th Main Road, 4th Block,
Nandini Layout, Bengaluru-96,
Permanent r/o.M.Shiva, Begur Hobli,
Channarayapattana Taluk,
Hassan District.
(By Sri. C.G.Sunder, Advocate)
Date of commission of offence 02-09-2010
Date of report of occurrence 04-09-2010
Date of arrest of accused 04-09-2010
Date of release of accused on bail 08-09-2010
Date of commencement of evidence 18-01-2018
Date of closing of evidence 05-07-2018
Name of the complainant P.Kumar
2 Spl.C.C.No.344/2010
Offences complained of Under Section 7,
13(1)(d) r/w/S13(2)
of Prevention of
Corruption Act.
Opinion of the Judge Acquitted
Date of Judgment 10-09-2018
JUDGMENT
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. Brief facts of the prosecution case is as under:
Accused-S.N.Jagadeesh is working as Meter Reader in the Office of Assistant Executive Engineer, W-4, Sub- Section, B.W.S.S.B., and is a public servant. Complainant- P.Kumar, resident of Mahatma Gandhi Nagar Slum, Bengaluru, gave complaint on 04-09-2010 to Lokayukta Police, stating that from 7-8 months prior to giving complaint, he constructed new house consisting of three floors and about 3 months back he received water bill of Rs.6,000/- and then he went to Water Supply Department Office along with Dhanpal and met Water Meter Reader- Jagannath and he asked complainant to pay the Bill of Rs.6,000/- and also asked him to give Rs.17,000/- for converting the usage of water from non-domestic to 3 Spl.C.C.No.344/2010 domestic purpose and then complainant came back and paid water charges of Rs.6,000/-. Thereafter, on July 16 th July, complainant with Dhanpal, met Jagannath and he agreed to receive Rs.12,000/- stating that expenses are to be borne for taking D.D. and he have to pay amount to other officers also. Complainant informed him that he will take D.D. and then Jagannath asked complainant to pay Rs.6,000/-. Thereafter, on 02-09-2010, Jagannath came to house of Complainant at 12.00 noon and demanded Rs.6,000/- and received Rs.1,000/- and asked to give balance Rs.5,000/- on Saturday and took copy of documents of the house. Complainant recorded the conversion in his mobile phone and along with mobile, he came to Lokayukta Office and informed about demand of bribe. Complaint orally given by complainant was recorded as Statement and his signature was taken and then, Lokayukta police have registered the case in Crime No.38/2010 and submitted F.I.R. to the Court. Lokayukta Police Inspector secured panchas and made all arrangement for trap and on the same day, Trap Team proceeded towards Office of accused and as accused asked complainant to come near Hotel, they went near New Chaya Sagar Veg Hotel and in that Hotel, between 4.00 to 4.15 p.m., when accused received Rs.5,000/-
tainted notes from complainant, he was caught. Tainted notes were seized from accused. He was arrested and 4 Spl.C.C.No.344/2010 produced before the Court. Investigating Officer continued investigation and after completion of investigation and after receiving Prosecution Sanction Order, he has filed the charge sheet.
3. Cognizance of offences is taken by this Court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against and read over to him. He has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case, P.Ws.1 to 6 are examined. Exs.P1 to P22 are marked. M.Os.1 to 15 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 chosen to lead any defence evidence on his behalf.
6. Heard the arguments and perused the records.
7. Now, Points that arise for my consideration are:-
1) Whether prosecution proves beyond all reasonable doubt that accused being public servant, working as Meter Reader in the Office of Assistant Executive Engineer, W-4, Sub-Section B.W.S.S.B., Bengaluru, has, when complainant contacted him and enquired with 5 Spl.C.C.No.344/2010 regard to higher water bill received to his house, demanded Rs.17,000/- to convert water use to domestic use and on 16-07-2010 he demanded bribe amount again and asked complainant to give Rs.6,000/- and again on 02-09-2010 he met complainant in his house and again reiterated his demand for bribe of Rs.6,000/- for converting the use of water from commercial to domestic and received Rs.1,000/- and thereafter, on 04-09-2010 between 4.00 to 4.15 p.m. in New Chaya Sagar Veg Hotel, near B.W.S.S.B., W-4, Sub-
Division Office, in West of Chord Road, again demanded and then accepted Rs.5,000/-
tainted notes from complainant as illegal gratification, as a motive or reward to do official act or official favour to complainant and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act?
2) Whether prosecution further proves beyond all reasonable doubt that accused being public servant working as Meter Reader in B.W.S.S.B., W-4, Sub-Division, West of Chord Road, Bengaluru, has, on 04-09- 2010 between 400 to 4.15 p.m., in New Chaya Sagar Veg Hotel, near his Office, by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.5,000/- without public interest, from complainant and thereby committed offence of criminal misconduct under Section 13(1)(d) of Prevention of Corruption Act, punishable under Section 13(2) of Prevention of Corruption Act?
3) What Order?
6 Spl.C.C.No.344/20108. My findings on the above Points are:-
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per Final Order, for the following:
REASONS
9. Point Nos.1 and 2: Since both these Points are inter-linked with each other, they are taken together for discussion to avoid repetition.
10. To prove the charge against accused for offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, prosecution has examined 6 witnesses as P.Ws.1 to 6. P.W.1-P.Kumar is the complainant. P.W.2-Govindaraju and P.W.3-Vishwanath are panch witnesses. P.W.4-K.M.Ramaiah is the Police Constable, who is said to have accompanied and assisted Trap Team and also has seen the Accused accepting tainted notes from complainant in the Hotel. P.W.5- Remesh is an employee of Hotel, in which Accused is said to have received tainted notes from complainant. P.W.6- Krishnappa, Police Inspector, is the Investigating Officer in this case.
11. On behalf the prosecution, documents at Exs.P1 to P22 are marked. Ex.P1 is Oral Statement of complainant, which was reduced into writing and on the basis of which case is registered. Ex.P12 is the F.I.R. Ex.P6 is the Sheet containing number of currency notes.
7 Spl.C.C.No.344/2010Pre-Trap Mahazar is marked as Ex.P2. Ex.P3 is the Trap Mahazar. The transcription of the conversation recorded in Mobile, by complainant, is marked as Ex.P7. The transcription of recordings in Button Camera, at the time of trap, is marked as Ex.P8. Ex.P9 is Written Explanation given by Accused. Statement given by P.W.1 and C.W.2 and 3, under Section 164 of Cr.P.C. before 17 th A.C.M.M. Court are marked as Ex.P4, P16 and P17. Statement of P.W.1 and P.W.3, stated to have been given before P.W.6 and denied before the Court, are marked as Ex.P5 and 10. Prosecution Sanction Order is marked with consent, as Ex.P11. Documents seized from Office of Accused, pertaining to work of complainant, is marked as Ex.P13. Report of H.M.Shivananda, Higher Officer of Accused, on voice identification is marked as Ex.P14 and Receipt given by P.W.2 on receiving the Seal, is marked as Ex.P15. The Sketch prepared by Assistant Engineer, is marked as Ex.P18 and information furnished by B.W.S.S.B. regarding work of complainant is marked as Ex.P19 and Service details of Accused is marked as Ex.P20. Call Details are marked as Ex.P21 and Chemical Examination Report is marked as Ex.P22. For the Prosecution, M.Os.1 to 15 are also marked. M.O.1 is Metal Seal and M.O.2 is Tainted Notes of Rs.5,000/- seized in this case. M.Os.3 to 9 are the Bottles containing solution taken at different stage of proceedings. M.Os.10 to 14 are the C.Ds. M.O.15 is Purse 8 Spl.C.C.No.344/2010 of Accused, in which tainted notes are stated to have been kept.
12. As per the materials placed by the Prosecution, P.W.1 gave complaint as per Ex.P1, stating that, as he was getting exorbitant water bill, along with C.W.2, he went to B.W.S.S.B. Office and met Meter Reader-Jagannath, who told him that he will make arrangement for converting water use from non-domestic to domestic and for this, R.17,000/- is to be paid, including D.D. for Rs.6,000/- and thereafter, along with C.W.2, complainant met Jagannath and amount demanded was reduced to Rs.12,000/-, out of which as complainant told that he will take D.D., remaining Rs.6,000/- was agreed to be paid and complainant gave Rs.1,000/- to Jagannath on 02-09-2010 and balance of Rs.5,000/- was to be paid and said Meter Reader took copies of documents of house of the complainant. Complainant recorded his conversation with Jagannath in Mobile and then gave complaint on 04-09-2010, along with Mobile. P.W.6 received complaint and registered the case. P.W.6 secured P.W.2 and P.W.3 as panch witnesses and followed pre-trap procedures. P.W.1 produced Rs.5,000/- in denomination of Rs.1,000 x 5 and number of notes were noted down as per Ex.P6 and phenolphthalein powder was smeared on the notes and as per the 9 Spl.C.C.No.344/2010 instructions of P.W.6, P.W.2 has verified the notes again and then kept the notes in right side pant pocket of P.W.1 and thereafter hand of P.W.2 was washed in solution and solution turned to pink colour and was seized. Mobile produced by complainant-P.W.1 was played and recording is transmitted to C.D. as per M.O.13 and transcribed on paper as per Ex.P7 and signatures were taken. Complainant was given button camera and he was instructed to meet Accused and enquire about his work and to give tainted notes only in case of demand and then to flash signal, by wiping his right ear or by giving missed call and was directed to switch on the button camera while meeting Accused. Friend of complainant- C.W.2 was instructed to go along with P.W.1 and to watch the happenings and P.W.3-C.Vishwanath was instructed to follow P.W.1 and C.W.2 as shadow witness and to observe the happenings and to report later. Pre-Trap Mahazar was prepared as per Ex.P2 and signatures were taken.
13. As per prosecution case, thereafter, Trap-Team left Lokayukta Office and proceeded towards B.W.S.S.B. Office, 4th Division, behind Modi Hospital in West of Chord Road and vehicle was stopped at a distance of 50 meters, at about 3.20 p.m. and on the instructions of P.W.6, P.W.1 made a phone call to Accused and Accused asked P.W.1 to come near Modi Hospital Canteen. This phone conversation was recorded in voice recorder and later 10 Spl.C.C.No.344/2010 transmitted to C.D as per M.O.10. After reminding the instructions given earlier, P.W.1, C.W.2 and P.W.3 were sent to meet Accused and other members of Trap Team have scattered near New Chaya Sagar Veg Hotel, by hiding themselves. P.W.1 came near New Chaya Sagar Veg Hotel, near Modi Hospital and Accused came there in scooter with a red file. P.W.3 went inside the hotel and was watching the happenings, by pretending himself to be customer in hotel. P.W.1, along with Accused went inside the hotel and ordered for coffee and while taking coffee, Accused by showing Red file told that file is ready and demanded Rs.5,000/-. C.W.2 requested Accused to reduce the amount, but accused has not agreed. Then P.W.1 took out Rs.5,000/- tainted notes and gave it to Accused and he received it and then counted and then kept it in purse and kept the purse in his left side pant pocket. P.W.1, while talking to Accused, gave signal to trap-team. Immediately Trap-Team members entered the Hotel and P.W.1has shown Accused as the person who has received tainted notes from him. P.W.6 disclosed his identity and ascertained details of Accused. Accused informed his name as S.N.Jagadish s/o.late S.N.Nanjegowda and working as Meter Reder in B.W.S.S.B. When P.W.6 enquired about amount received from P.W.1, Accused informed that, he has kept it in left side pant pocket in a purse. Then, in the presence of P.W.5- Ramesh 11 Spl.C.C.No.344/2010 and one Jayaram and in the presence of panch witnesses, sodium carbonate solution was prepared and hands of Accused were washed and solution turned to light pink colour and was seized. Purse was taken out from pant pocket of Accused and tainted notes in it were tallied with Ex.P6 and then seized in a cover and seized as per M.O.1. Purse was also seized as per M.O.15. The File, which was brought by Accused to the Hotel, was taken by P.W.6. Thereafter, along with Accused, they all came to B.W.S.S.B. Office and there, Attendance Register of Accused was taken and they came to Lokayukta Office, wherein, by taking attested copy of the File, File was returned to Higher Officer of Accused. Button camera given to P.W.1 was played and contents were transmitted to C.D. as per M.O.11 and transcribed on paper as per Ex.P8. Higher Officer of Accused, by name Shivanand, has identified the voice of Accused in M.Os.11, 12 and 13 and gave Report as per Ex.P14. Accused has given Explanation as per Ex.P9 and it was not acceptable. The Trap Proceedings were videographed and then transmitted to C.D. Accused was arrested by following the procedure. Trap Mahazar was prepared as per Ex.P3 and signatures were taken. Thereafter, P.W.1 and C.Ws.2 and 3 have appeared before the 17th A.C.M.M. Court and gave Statement under Section 164 of Cr.P.C. as per Exs.P4, P16 and P17. The Investigating Officer continued 12 Spl.C.C.No.344/2010 further investigation and after completion of investigation, prepared Final Report and after obtaining Prosecution Sanction Order, filed charge sheet against Accused.
14. In order to bring home the guilt of accused for offences under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being public servant, has 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 some official favour. On proof of demand and acceptance, presumption can be drawn to the effect that, such illegal gratification is demanded and received as a motive or reward, as mentioned in Section 7 of P.C.Act. On proof of accused receiving pecuniary advantage by corrupt or illegal means and by misusing his position as public servant, accused will be guilty of criminal misconduct under Section 13(1)(d) of P.C.Act., which is punishable under Section 13(2) of the said Act.
15. In this case, P.W.6, after completing investigation, submitted Final Report for obtaining Prosecution Sanction Order. Accused has not disputed the Prosecution Sanction Order and the said Order is marked with consent, as per Ex.P11. Therefore, there is no 13 Spl.C.C.No.344/2010 dispute about valid Prosecution Sanction Order to prosecute Accused.
16. As per Ex.P1-Complaint, as P.W.1 received exorbitant water bill, he approached B.W.S.S.B. Office and met Meter Reader Jagannath, along with C.W.2 and Jagannath demanded Rs.17,000/- including water Bill of Rs.6,000/- and informed that he will get water use converted from Non-domestic to Domestic and on 16.07.2010 again reiterated his demand and then brought it down to Rs.12,000/- band as P.W.1 told him that he will take DD, Jagannath asked him to pay Rs.6,000/- and on 02-09-2010, Jagannath received Rs.1,000/- and documents of the house from P.W.1 and asked P.W.1 to pay Rs.5,000/- by Saturday and this conversation was recorded in Mobile by P.W.1. Therefore, as per Ex.P1, it was Meter Reader Jagannath, who was consulted by P.W.1 and who has made demand for amount on all the dates mentioned in Ex.P.1. Present Accused before the Court is not Jagannath and he is S.N.Jagadeesh. As per Ex.P1, in June 2010 and on 16-07- 2010 and also on 02-09-2010 Meter Reader has demanded bribe amount from complainant. As per Ex.P1, on all the three times, when complainant met the Meter Reader, C.W.2-Dhanpal was present, but Dhanpal is not examined in this case. Though witness summons was sent to this witness repeatedly, witness could not be 14 Spl.C.C.No.344/2010 secured, as he was not in the given address. At the time of Trap, in New Chaya Sagar Veg Hotel, Accused is said to have told P.W.1 that, his work has been done and then asked for Rs.5,000/-. Therefore, at the time of trap also accused is said to have demanded and then received tainted notes.
17. Dates on which demand of Bribe is made prior to giving complaint is mentioned in Ex.P1. The demand of bribe by Jagannath-Meter Reader on 02-09-2010 is said to have been recorded in Mobile by P.W.1 and produced before P.W.6 while giving complaint. Even regarding demand of bribe by Accused at the time of trap on 04-09- 2010, recording is said to have been made in Button camera given to P.W.1. Since C.W.2-Dhanpal, could not be examined, prosecution case is mainly relying on the recordings made in Mobile by complainant and recordings made in button camera on 04-09-2010. The Mobile, which was produced by complainant at the time of giving complaint and Button camera, in which recordings are said to have been made at the time of trap, are not produced in this case. In the course of investigation, this Mobile and Button Camera are not seized. Recordings in Mobile produced by complainant, is said to have been transmitted to C.D. as per M.O.13 and transcribed as per Ex.P7. Recording in Button Camera on 04-09-2010 is said to have been transmitted to C.D. as per M.O.11 and 15 Spl.C.C.No.344/2010 contents are transcribed as per Ex.P8. Even the phone conversation between complainant and Accused on 04- 09-2010 is transmitted to C.D. and produced as per M.O.12. Therefore, M.O.13, M.O.11 and M.O.12 contain recordings which were transmitted to C.Ds. and Exs.P7 and P8 are the transcriptions of recordings in M.O.13 and M.O.11, respectively. Voice of Accused in these recordings is said to have been identified by C.W.9-H.M.Shivanand, Higher Officer of Accused and he is stated to have given Report as per Ex.P14. C.W.9 is not examined in this case for prosecution. Moreover, there is no material to show that C.W.9 is an expert in identifying the voice. In the course of investigation, sample voice of Accused was not taken and alleged voice of Accused in these recordings were not sent for Expert's opinion. Moreover, as admitted by P.W.6, he has not obtained any Certificate under Section 65B of Indian Evidence Act in respect of C.Ds. and transcriptions. As stated above, original device in which conversations are originally recorded, are not produced before the Court. The Mobile and Button Camera, in which these recordings are said to have been made, are not seized in this case. M.O.13, M.O.11 and M.O.12 and the transcriptions at Exs.P7 and P8 are copies of original recordings. They are the copies of electronic records.
18. Learned Counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court, 16 Spl.C.C.No.344/2010 reported in 2015 (1) SCC (Cri.) 24 (Anvar P.V. vs. P.K.Baheer and others). In this decision, Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records without certificate under Section 65B 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 the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act. As Mobile and Button Camera, in which recordings are stated to have been made are not produced, these recordings in the C.Ds.-M.Os.13, 11 and 12 and the transcriptions at Exs.P7 and P8, which are not supported by Certificate under Section 65B of Indian Evidence Act, are not admissible. Therefore, these recordings in C.Ds. and transcriptions does not help the prosecution to prove demand of bribe by Jagannath prior to giving of complaint or by Accused on 04-09-2010 at the time of trap.
19. In the absence of these C.Ds. and transcriptions and also in the absence of evidence of C.Ws.2, entire prosecution case regarding demand of bribe prior to giving of complaint, rests on the evidence of P.W.1. P.W.1 has stated that, slum leader -Varadaraj had informed him that a person by name Jagannath from B.W.S.S.B. will meet him with regard to arrears of water 17 Spl.C.C.No.344/2010 Bill and Jagannath told him that there is arrears of Rs.11,000/- and he have to pay D.D. for Rs.5,000/- and Rs.1,000/- to the contractor and he has paid Rs.11,000/- as arrears of water bill. P.W.1 has stated that Jagannath further asked him to pay Rs.5,000/- and told that if it is not paid, water connection will be disconnected and thereafter, as again Jagannath insisted him to pay Rs.6,000/- and threatened to disconnect water supply, he agreed to pay Rs.5,000/- and went to Lokayukta office. He has stated that, Lokayukta Police gave him an instrument like pen and asked him to record the conversation and he then met Jagannath and then came back and gave complaint. Though P.W.1 has stated that Jagannath has insisted him to pay Rs.5,000/- and then he came to Lokayukta police and gave complaint, he has not stated the dates on which he met Jagannath. P.W.1 has not identified Accused who was present before the Court as Jagannath, who demanded bribe from him. He has stated that he can identify Jagannath who had demanded amount from him and has specifically stated that he has not seen accused present before the Court earlier and that Accused is not Jagannath. Even on questioning by Court, Accused told his name as S.N.Jagadeesh. Even service records secured in this case show name of Accused as Jagadeesh.
20. Therefore, P.W.1 has not identified present 18 Spl.C.C.No.344/2010 Accused as Jagannath, who demanded bribe from him. P.W.1 has denied that Accused present before the Court is the person who demanded bribe from him. Hence, evidence of P.W.1 does not prove that Accused is Jagannath as stated in Ex.P1 and he is the person who has demanded bribe amount from complainant. P.W.1 has even given Statement under Section 164 of Cr.P.C. before the 17th Additional Chief Metropolitan Magistrate, Bengaluru as per Ex.P4 on 06-09-2010. In this Statement also it is clearly stated that it is Jagannath, who demanded bribe from him. Interestingly, trap took place on 04-09-2010 and trap mahazar is marked as Ex.P3. In Ex.P.3, name of Accused is shown as S.N.Jagadeesh. In the Statement of complainant given before Investigating Officer, marked as Ex.P.5 which is denied by witness, it is mentioned that he has mentioned name of accused as Jagannath in complaint, but later he came to know that his name is S.N.Jagadeesh.
21. On looking to the entire materials, in Ex.P.1- complaint and Ex.P.4 statement under Section 164 of CrPC, it is mentioned that Jagannath from B.W.S.S.B. has demanded bribe. However, in Ex.P3-Trap Mahazar, it is mentioned that Accused S.N.Jagadeesh has demanded bribe. Trap Mahazar was drawn on 04-09-2010. Even after the Trap Mahazar and arrest of Accused, P.W,1 in his statement under Section 164 of Cr.P.C. before the 19 Spl.C.C.No.344/2010 A.C.M.M., has mentioned the name of person who demanded bribe as Jagannath. Even in the Court, while giving evidence, P.W.1 has stated that Jagannath has demanded bribe and Accused present before the Court has not demanded bribe from him. Therefore, evidence of P.W.1 is against Jagannath and P.W.1 has not identified Accused as person who has demanded and received the amount. Therefore, evidence of P.W.1 no way helps the prosecution to prove any demand of bribe by Accused- S.N.Jagadeesh. Except mentioning in Ex.P5-Statement, which is even denied by P.W.1, there is no other material to show that though name of accused was mentioned as Jagannath in the complaint, his real name is Jagadeesh and it came to the knowledge of complainant at the time of investigation. On 06-09-2010 itself, this statement before Investigating Officer and statement before ACMM are recorded. Therefore, P.W.1 is definite throughout about demand and acceptance of bribe by Jagannath. His evidence does not implicate present Accused- S.N.Jagadeesh as a person who demanded bribe prior to or subsequent to giving of complaint. Even in the statement of C.Ws.2 and 3 recorded under Section 164 of Cr.P.C. before the Additional Chief Metropolitan Magistrate as per Exs.P16 and P17 on 06-09-2010, it is mentioned that Jagannath has demanded and received bribe from Complainant. Therefore, by Exs.P4, P16 and P17- 20 Spl.C.C.No.344/2010 Statements recorded under Section 164 of Cr.P.C. also, involvement of present Accused-S.N.Jagadeesh cannot be made out. P.W.1 has not stated anything against present Accused. PW.1 has not even identified Accused present before the Court. Therefore, evidence of P.W.1 will not help the prosecution to prove alleged demand of bribe amount by Accused, whether prior to giving of complaint or at the time of trap. Though recording is said to have been made in Mobile and button camera, recordings produced in CDs are not admissible in evidence, as observed earlier.
22. At the time of trap, apart from C.W.2, P.W.3 was also sent as shadow witness. P.W.3 has not supported the prosecution case. He has only stated about pre-trap mahazar and has stated that, after pre-trap mahazar, they proceeded in Government vehicle towards West of Chord Road, Bengaluru and near Darshini Hotel vehicle was stopped and complainant went towards Hotel and they waited for signal and after 10 to 15 minutes Lokayukta police took him inside the hotel and Lokayukta police officials told that Accused has received tainted notes from complainant. Though this witness was cross- examined by the Learned Public Prosecutor by treating him as hostile, he has denied the suggestions and has stated that he has not seen the accused coming in a two wheeler by holding a red colour file and has denied that 21 Spl.C.C.No.344/2010 when complainant was talking to Accused, he was taking tea and observing the happenings. He has stated that he do not know whether accused informed the complainant that his file is ready and then demanded amount. Therefore, evidence of P.W.3-shadow witness also does not help the prosecution to prove the alleged demand of bribe by Accused. A police official, by name K.M. Ramaiah-P.W.4 is also said to have been present at the time of trap. He has stated that, a person holding a red file entered the hotel and met complainant and talked with him and while talking, complainant took out tainted notes from right side pant pocket and gave it to that person and that person kept it in his purse and kept the purse in his left side pant pocket. Therefore, even P.W.4 has not stated that at the time of trap, after entering the Hotel, Accused demanded bribe amount from complainant. Therefore, evidence of P.W.4 also does not help the prosecution to prove demand of bribe by Accused at the time of trap, on 04-09-2010. P.W.3- shadow witness and P.W.4-Police official, have not stated about they hearing the Accused demanding bribe amount from P.W.1 at the time of trap. There is no other evidence before the Court to prove that, Accused demanded and then received the tainted notes from P.W.1 at the time of Trap. As regards demand of bribe prior to giving of complaint, only evidence of PW1 itself does not show that 22 Spl.C.C.No.344/2010 Accused S. N. Jagadeesh, has demanded bribe from him. Therefore, prosecution has failed to prove demand of bribe by Accused, either before giving complaint or at the time of trap.
23. Coming to the acceptance of bribe amount and its recovery, as per prosecution case, Accused received tainted notes from P.W.1 in New Chaya Sagar Veg Hotel and then counted it and kept it in a purse and then kept the purse in left side pant pocket and after getting signal, trap team entered Hotel and hand wash of Accused was done and thereafter, purse was taken out by P.W.3 and then amount inside the purse was counted and it tallied with Ex.P6 and thereafter, purse and tainted notes were seized. As stated above, evidence of P.W.1 and his statement under section 164 of CrPC are totally against Jagannath and not against Accused- S.N.Jagadeesh. Though he has stated about he entering the hotel and giving tainted notes, his case is that amount was given to Jagannath, who is working in B.W.S.S.B. and not to S.N.Jagadeesh. Even C.Ws.2 and 3 in their statements given asper Exs.P16 and P17 under Section 164 of Cr.P.C. have stated name of Jagannath and not Jagadeesh. Though their statement was recorded on 06-09-2010, i.e., two days after the trap and accused was already arrested, still P.W.1, C.W.2, C.W.3 have reiterated in their statement given before Additional Chief 23 Spl.C.C.No.344/2010 Metropolitan Magistrate that tainted notes were given to Jagannath. Even P.W.1 has stated that he has not seen Accused before and tainted notes were given to Jagannath. P.W.6- Investigating Officer, has not stated that he has made enquiry in the Office of B.W.S.S.B., to ascertain that there is no Jagannath working in that Office. In view of the statement of P.W.1 and C.Ws.2 and 3, two days after the trap, as per Exs.P4, P16 and P17, and also the evidence of P.W.1 stating that it was Jagannath, to whom amount was given and not to Accused, it is difficult to identify Accused-S.N.Jagadeesh as person who has received tainted notes from complainant, as stated in prosecution case.
24. P.W.3, who is shadow witness and was instructed to follow P.W.1, has turned hostile and not supported prosecution case and has not stated that he has seen Accused receiving tainted notes from complainant. P.W.4 has stated that P.W.1 talked to Accused for a while and then P.W.1 took out tainted notes from right side pant pocket and gave it to Accused and thereafter he flashed signal. In the cross-examination P.W.4 has stated that he do not know against whom complaint was given and has stated that he has not signed trap mahazar or pre-trap mahazar and he do not remember the time when he entered the Hotel. Though P.W.4 has stated that he has seen the complainant giving 24 Spl.C.C.No.344/2010 amount to Accused, presence of this witness in the hotel and in the trap proceedings is not established, as his signature is not found in Trap Mahazar to show his presence. There is no other evidence to show that P.W.4 was present in the Hotel and was watching the happenings. Another witness-P.W.5- Ramesh, who is working in the Hotel, has stated that when he was serving tea, two Lokayukta police officials came inside the Hotel and shown their identity card and they have talked to one person by name Jayaram, working in B.W.S.S.B. and Lokayukta police informed him that Accused has received bribe of Rs.5,000/- and they will do the further activities of his hand wash and hand wash of the Accused was made and also that Accused took out the purse from his pant pocket and purse was checked and amount of Rs.5,000/- was found. In his cross-examination, P.W.5 has stated that before Lokayukta police introducing themselves, he was not knowing those persons and no document was prepared by Lokayukta police in the Hotel. P.W.5 has also not stated that he has seen the complainant giving tainted notes to Accused and Accused keeping it in his purse and then keeping the purse in the left side pant pocket. P.W.5 may be a witness for further proceedings of hand wash, but he is not a witness who has seen the Accused accepting tainted notes from complainant.
25 Spl.C.C.No.344/201025. On looking to the entire evidence, acceptance of bribe amount by Accused at the time of trap is not established by evidence of P.Ws.1, 3, 4 and 5. P.W.2- another panch witness and the Investigating Officer
-P.W.6, are not the eye witnesses and they came to the spot only after getting the signal. Though hand wash of Accused has turned to pink colour, as stated by P.Ws.4 and 5, P.W.1 has not stated that it is the hands of Accused, which was washed in the solution. P.W.3 has not stated about the same and P.Ws.2 and 6 have stated about hand wash and solution turning to pink colour. Though witnesses-P.Ws.2, 4 and 5 and also the Investigating Officer-P.W.6 have stated about recovery of amount from Accused, which was found in the purse in the left side pant pocket of Accused, the acceptance of bribe amount by Accused is not proved. The witnesses- P.Ws.1, 3, 5 have not stated about the acceptance of bribe amount by Accused and though P.W.4 has stated about the same, his presence at the spot is not established. Therefore, though hand wash of Accused has turned to pink colour, as stated by most of the witnesses, acceptance of tainted notes by Accused is not established. Therefore, Accused accepting the tainted notes in furtherance of his demand for illegal gratification is not established. When demand and acceptance of the amount is not proved, even if recovery of amount from 26 Spl.C.C.No.344/2010 the purse of Accused is established, that does not prove the guilt of Accused. Even if acceptance of tainted notes and its recovery are established, in the absence of proof of demand of illegal gratification, guilt of Accused will not be established.
26. Learned Counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court, reported in 2015 SCC OnLine SC 814 (P.Satyanarayana Murthy vs. Dist. Inspector of Police and another) , in which Hon'ble Supreme Court, in para 21 and 22 has held as under:
"21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or 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."
Therefore, unless demand is proved, mere 27 Spl.C.C.No.344/2010 acceptance or recovery does not prove the guilt.
27. In another decision reported in ( 2011) 2 SCC (Crl.) 1010 (State of Kerala and another vs. C.P.Rao) Hon'ble Supreme Court has held that, mere recovery of tainted money, divorced from circumstances, under which it is paid, is not sufficient to convict accused . It is also held that, when there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on.
28. In 2012 (1) KCCR 414 {R.Malini vs. State of Karnataka}, Hon'ble High Court has held that, it is not passing of the money alone that establishes a Corruption charge, because gravemen of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount .
29. In another decision reported in 2012 (2) KCCR 1157 {Sri Hanumanthappa Vs. State of Karnataka} , the Hon'ble High Court has held that, when Trap Mahazar was not drawn at the spot and was drawn in the office far away from the place of incident, it also raises doubt about the prosecution case.
30. In another decision reported in 2014 A.I.R. S.C.W. 2080 (B.Jayaraj vs. State of Andhra Pradesh) Hon'ble Supreme Court has held in para No.7 as under:
28 Spl.C.C.No.344/2010" 7. 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. ... "
31. In another decision reported in 2015 AIR SCW 951 (C.Sukumaran vs. State of Kerala), Hon'ble Supreme Court has held in para 13 as under:
" ... It has been continuously held by the 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. ... "
32. In another decision reported in 2016 (1) KCCR 815 (R.Srinivasan and another Vs. State by Police Inspector Lokayuktha, Bangalore) our Hon'ble High Court has held that, Evidence of complainant needs corroboration in material particulars and corroboration by the shadow witness is very important.
29 Spl.C.C.No.344/201033. On going through all these decisions and on considering the facts of present case and also evidence adduced in this case, demand of bribe amount by present Accused-S.N.Jagadeesh and acceptance of tainted notes by Accused are not proved by prosecution beyond all reasonable doubt. These decisions makes it very clear that proof of demand is front runner in proof of offence under Section 7 of Prevention of Corruption Act and when demand is not proved, acceptance of recovery of amount, even if proved, does not prove guilt of accused. As demand and even acceptance are not proved, prosecution has failed to prove the guilt of accused.
34. For the offence under Section 7 of Prevention of Corruption Act, illegal gratification must be demanded and received to do official act or favour to complainant. Pendency of official work with the Accused or capacity of Accused to do any favour to complainant, is also necessary to be established. In this case, Accused is only Meter Reader and there is no material before the Court to establish that Accused had capacity to address the grievance of the complainant about getting exorbitant water bills from B.W.S.S.B. Though a file is said to have been secured from Accused at the time of trap and then it was got attested and then seized a per Ex.P13, there is no signed application of complainant or his wife in the said file. Some water charges paid receipts and copy of 30 Spl.C.C.No.344/2010 property records of wife of complainant are found in Ex.P13. That does not prove that Accused had taken these records from complainant for converting water use from non-domestic to domestic and then helping complainant in getting less water bill and for this purpose, accused demanded bribe amount. Therefore, pendency of work of complainant with Accused is not clearly established. Even otherwise, as demand of bribe amount by accused and its acceptance are not proved, commission of offence by Accused is not established. In the present case, even presumption cannot be drawn as demand and acceptance are not proved.
35. For all these reasons, prosecution has failed to prove that Accused has demanded and accepted illegal gratification from complainant and committed offence under Section 7 of Prevention of Corruption Act. Any criminal misconduct done by Accused by receiving any pecuniary advantage by corrupt means without any public interest, is also not established. Therefore, prosecution has failed to prove the guilt of accused beyond all reasonable doubt. Accordingly, Points No.1 and 2 are answered in the Negative.
36. Point No.3:- For the discussion on Point Nos.1 and 2, Accused is to be acquitted. Hence, following Order is passed:
31 Spl.C.C.No.344/2010ORDER Accused is found not guilty.
Acting under Section 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
The bail bonds executed by accused and his surety stands cancelled.
M.O.1-Metal Seal is ordered to be returned to Lokayukta Police, after expiry of appeal period.
M.O.2-Cash of Rs.5,000/- is ordered to be confiscated to the State, after expiry of appeal period.
[ M.Os.3 to 15 are ordered to be destroyed after expiry of appeal period, as they are worthless.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the 10th day of September, 2018).
(Ravindra Hegde), LXXVIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - P.Kumar P.W.2 - Govindaraju P.W.3 - Vishwanath P.W.4 - K.M.Ramaiah P.W.5 - Ramesh P.W.6 - Krishnappa 32 Spl.C.C.No.344/2010 List of documents exhibited for the prosecution:
Ex.P1 - Complaint P1(a) - Signature of P.W.1 P1(b) - Signature of P.W.6 Ex.P2 - Pre-Trap Mahazar P2(a) - Signature of P.W.1 P2(b) - Signature of P.W.2 P2(c) - Signature of P.W.3 P2(d) - Signature of P.W.6 Ex.P3 - Trap Mahazar P3(a) - Signature of P.W.1 P3(b) - Signature of P.W.2 P3(c) - Signature of P.W.3 P3(d) - Signature of P.W.6 Ex.P4 - Statement given by P.W.1 before the Court P4(a) - Signature of P.W.1 Ex.P5 -Statement of P.W.1 given before Lokayukta Police Ex.P6 - Sheet containing serial number of currency notes P6(a) & (b)- Signatures of P.W.2 P6(c) & (d) - Signatures of P.W.3 P6(e) & (f) - Signatures of P.W.6 Ex.P7 - Recordings in the Mobile Chip transmitted to C.D. P7(a) - Signature of P.W.2 P7(b) - Signature of P.W.6 Ex.P8 - Transcription of recordings in button camera P8(a) - Signature of P.W.2 P8(b) - Signature of P.W.6 Ex.P9 - Written Explanation of Accused P9(a) - Signature of P.W.2 P9(b) - Signature of P.W.6 Ex.P10 - Entire Statement of P.W.3 Ex.P11 - Prosecution Sanction Order Ex.P12 - F.I.R.
P12(a) - Signature of P.W.6 Ex.P13 - Blank Application for water connection P13(a) - Signature of P.W.6 Ex.P14 - Voice Identified Report of C.W.9 P14(a) Signature of P.W.6 33 Spl.C.C.No.344/2010 Ex.P15 - Metal Seal Acknowledgment Ex.P16 - Statement of C.W.2 u/S.164 of Cr.P.C. Ex.P17 - Statement of C.W.3 u/S.164 of Cr.P.C. Ex.P18 - Sketch P18(a) - Signature of P.W.6 Ex.P19 - Work Allotment of Accused Ex.P20 - Service details of Accused Ex.P21 - Call details at Page No.52 to 59 of charge sheet Ex.P22 - Chemical Examination Report Witnesses examined and documents marked for defence:
Nil Material Objects marked by Prosecution: M.O.1 - Metal Seal bearing English Letter "N" M.O.2 - Cash of Rs.5,000/- in denomination of Rs.1000x5 M.O.2A - Cover in which the cash was seized M.Os.3 to 9 - Seven bottles containing solution taken at different stage of pre-trap and trap proceedings labelled as Article Nos.1, 2, 4, 5, 5A, 6, 6A M.Os.10 to 14 - C.Ds. Inside the covers M.Os.10A to 14A - Covers M.O.15 - Purse of the Accused in the cover M.O.15A - Cover in which purse was seized LXXVIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
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