Bangalore District Court
The State By Police Inspector vs Mr.D.Hutchappa on 21 February, 2018
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 21st day of February 2018
Spl. C.C.No.127/2012
COMPLAINANT The State by Police Inspector,
Police wing, City Division,
Karnataka Lokayuktha,
Bangalore.
(Rep by Spl.Public Prosecutor)
-Vs-
ACCUSED Mr.D.Hutchappa, s/o late
Dandaiah, Revenue Inspector,
Kaveripura, BBMP Ward
No.103, Govindarajanagara
Range, Bangalore.
Residing at No.221/F, 1st
Main Road, 7th Cross, 3rd
Stage, Manjunathanagara,
Bangalore-10, Native of
Heggunda, Sompura Hobli,
Nelamangala Taluk, Bangalore
Rural District.
(By V.A.R.S.& Associates,
Advocates )
1. Nature of Offence Offence punishable under
Sections 7, 13(1) (d) r/w 13 (2)
of Prevention of Corruption
Act, 1988.
2 Spl.C.C.127/2012
2. Date of
Commission
13.12.2011
of offence
3. Date of First
Information Report 13.12.2011
4. Date of arrest
13.12.2011
5. Date of
commencement of 29.01.2014
recording of
evidence
6. Date of 04.01.2018
closing of evidence
7. Date of
21.02.2018
pronouncement of
Judgment
8. Result of the case The accused is acquitted
under section 235(1) of
Cr.P.C. of the offence
punishable under section 7,
13(1) (d) r/w 13(2) of
Prevention of Corruption
Act, 1988.
3 Spl.C.C.127/2012
JUDGMENT
The accused is charge sheeted for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988.
2. The case of the prosecution is that, CW1- Bettegowda(complainant) is the younger brother of CW5- U.C.Varadarajaiah. CW5 owns a residential house property bearing site No.48, 3rd Main road, Kaveripura, Bangalore, measuring 25 x 40 ft. In the said site, CW5 has constructed three floor building. The said property comes within the jurisdiction of BBMP Ward No.103 of Kaveripura. The accused was then working as Revenue Inspector, Kaveripura, BBMP Ward No.103, Govindarajanagar Sub-Division, Bangalore. On 7.2.2011, Office of the ARO, Govindrajanagara Sub-Division, Bangalore issued a notice to CW5 as per Ex.P2 to pay property tax of Rs.45,699/- from the year 2008-09 to 2010-11. In the said notice, the total measurement of the built up area was shown as 1200 sq.ft instead of 1000 sq.ft. In this connection, on behalf of his brother, CW1- Bettegowda had approached the accused, to rectify the measurement of the built up area and to reduce the tax amount. On 20.4.2011, CW1 gave representation to ARO, Govindarajanagar Sub-Division, Bangalore, as per Ex.P3. The accused said to have told CW1 that he will attend the work within one month, but he did not attend the work. In the month of December 2011, when CW1 met the accused, he demanded Rs.12,000/- as illegal gratification for rectification of the measurement of the built up area and to reduce the tax amount and also as an additional bribe in the 4 Spl.C.C.127/2012 matter of change of Khata already done in respect of the property belongs to his father-in-law. After negotiation, the amount was reduced to Rs.10,000/-. The complainant was not willing to pay the bribe amount. On 13.12.2011, at about 1.45 PM, the complainant presented written information as per Ex.P7 before CW19-Niranjan Kumar, Police Inspector, Karnataka Lokayuktha, City Division, Bangalore, who arranged for the trap. The complainant along with the complaint produced the Voice Recorder containing the conversation with the accused.
3. On the same day, CW2-P.Manjunath & CW3- B.C.Rakshit Ganapathi, the employees of BWSSB were secured to act as witnesses. The complainant produced Rs.10,000/- (9 currency notes denomination of Rs.1000/- & 2 currency notes denomination of Rs.500/-). The serial number of the currency notes was recorded as per Ex.P.4. The said currency notes were smeared with phenolphthalein powder. CW3-Rakshit Ganapathi, after verifying & counting the said tainted currency notes, placed it in the shirt pocket of the complainant. Both hand fingers of CW3 were washed in the sodium carbonate solution. The said solution turned to pink colour. CW19 has demonstrated the chemical reaction of the phenolphthalein powder when comes into contact with sodium carbonate solution. The Digital Voice Recorder produced along with the complaint was played in the presence of the witnesses. The contents of the Digital Voice Recorder were converted to CD and transcript into writing. The complainant was instructed to approach the accused, speak about the work, and to give the amount only on demand. He was further instructed to give 5 Spl.C.C.127/2012 signal by making phone call to the mobile No.9448167040 and to pretend as if he is speaking with his brother, if the accused received the amount. Spy Camera & Voice Recorder was given to the complainant with an instruction to switch it on while approaching the accused to give money and to record the scene/ conversation. CW2-Manjunath was instructed to follow the complaint and to observe what transpires between the complainant and the accused. CW15-Venkatesh-Police Constable was also instructed to accompany the complainant. Entire Pre-Trap Proceedings were covered with video. Entrustment Mahazar was prepared as per Ex.P5 and obtained the signature of the witnesses.
4. On the same day, at about 4.15 PM, CW19 along with the Trap Team Members, complainant & two panch witnesses left for BBMP Office, Kaveripura Ward, Bangalore, wherein the accused was working in two Government vehicles. On the way to BBMP Office, Kaveripura Ward, the complainant made a phone call to the accused to know his whereabouts, but it was not reachable. The complainant informed the Investigating Officer that, normally in the afternoon Session, the accused will be available in the ARO Office, inside Ambedkar Stadium, behind Sri Gangamma Thimmaiah Kalyana Mantapa, and it is better to go there. As such, all the Trap Team Members, complainant & two panch witnesses proceeded towards Sri Gangamma Thimmaiah Kalyana Mantapa, and parked the vehicle at some distance. The complainant, CW2 & CW15 went inside the ARO Office, but the accused was not available. Complainant told the Investigating Officer that, when he made a phone call, the accused informed him that he has been to 6 Spl.C.C.127/2012 Commissioner's Office at Hudson Circle on office work and he will return to ARO Office at 6.00 PM, and to call him back at 6.00 PM. At about 6.00 PM, when the complainant made a phone call to the accused, he was asked to come nearby Stadium gate behind Sri Gangamma Thimmaiah Kalyana Mantapa. Accordingly, the complainant went nearby Sri Gangamma Thimmaiah Kalyana Mantap. CW2-Manjunath & CW15-Venkatesh followed the complainant with some distance. The other Trap Team Members were standing secretly nearby Stadium gate, as a public. Complainant met one person near the Stadium gate. Both of them went to Gokul Krishna Hotel, situated beside Sri Gangamma Thimmaiah Kalyana Mantap. CW2-Manjunath & CW15-Venkatesh also went inside the Hotel by following the complainant. At about 6.15 PM, complainant gave pre-instructed signal by making a phone call. Immediately, the raid party rushed inside the Gokul Krishna Hotel. Complainant showed the accused by saying that he is the peon who received the amount of Rs.10,000/- from him. Investigating Officer disclosed his identity by showing his ID card and informed the purpose of visit. The accused was apprehended by the Trap Team Members. Both hand fingers of the accused were washed separately in sodium carbonate solution. The said solution turned to pink colour. On being questioned, the accused told the Investigating Officer that he kept the money in his left side pocket. Investigating Officer got removed the tainted currency notes from the accused through CW2-Manjunath. The said tainted currency notes were verified and tallied with the Currency Notes Sheet. Thereafter the tainted currency notes of Rs.10,000/-(MO2) was seized. The statement of the complainant, CW2-Manjunatha, 7 Spl.C.C.127/2012 CW4-Santosh was recorded and incorporated in the Trap Mahazar. Investigating Officer has prepared the Rough Sketch of the spot as per Ex.P8. The Attendance Register was seized from the office of the ARO. The documents relating to Sri Nagaraju-the father-in-law of the accused was seized from the office of the ARO. Thereafter, the file relating to the Varadaraju-CW5 was seized from the Kaveripura Office. Thereafter, the accused was brought to Lokayuktha Police Station and continued the Trap Proceedings. The Spy Camera & Voice Recorder given to the complainant at the time of Trap was played in the presence of the panch witnesses and CW7 & CW8, contents of it were converted to CD and transcript into writing. After viewing the Spy Camera and overhearing the conversation recorded in the Voice Recorder, CW7 & CW8 had identified the accused & his voice. The shirt of the accused was seized. The accused gave his statement in writing about he being in possession of the tainted currency notes. The accused was arrested and produced before the Court. Entire trap proceedings were covered with video. All the seized articles were sealed with Metal Seal by using English letter 'K'. Metal Seal was handed over to CW2-Manjunatha and obtained an acknowledgment. Entire trap proceedings were reduced into writing. Trap Mahazar as per Ex.P6 was prepared and obtained the signature of the witnesses. Investigating Officer has received the Spot Sketch from AEE-PWD, as per Ex.P15, Chemical Examination Report as per Ex.P16. After completion of the investigation, the Investigating Officer sent the Final Report to the Competent Authority seeking sanction to prosecute the accused. After receiving the Sanctioning Order- Ex.P1 from the Competent Authority, CW19 has filed the charge 8 Spl.C.C.127/2012 sheet against the accused before the Court on 23.04.2012 for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act,1988.
5. My Predecessor-in-Office took cognizance of the offence and issued process against the accused. In pursuance of the summons, accused appeared before the Court. The accused is enlarged on bail.
6. After hearing, the charge was framed for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988. The Charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution has examined in all 4 witnesses as PWs1 to 4 and got marked 16 documents as Ex.P1 to Ex.P16 and 12 Material Objects as MO1 to MO12. The accused was examined under section 313 of Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. The accused denied all the incriminating evidence available against him. The accused has not chosen to lead any defense evidence. I have heard the arguments and perused the records.
8. The learned counsel appearing for the accused has placed reliance on the following decisions:
9 Spl.C.C.127/2012
1. The Judgment of Hon'ble High Court of Karnataka dated 12.12.2017 in Crl.appeal No.1432/2017 in B.S.Anand Kumar -v- State, represented by Karnataka Lokayuktha.
2. 2016 Crl.L.J 3066 (R.Srinivasan & another -v-
State by Police Inspector, Karnataka
Lokayuktha)
3. 2016 Cri.L.J. 1079 (Krishan Chander -v- State of Delhi)
4. 2010 (3) KCCR 1851 (State of Karnataka -v-
Gopalakrishnaiah & others)
5. (2010) 2 Supreme Court Cases(Cri) 385 (State of Maharashtra -v- Dnyaneshwar Laxman Rao Wankhede)
6. (2016) Cri.L.J.1310 State of Tripura -v- Dipankar Majumder & others
9. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being a public servant, working as Revenue Inspector, Kaveripura, BBMP Ward No.103, Govindarajanagara Sub-Division, Bangalore, on 13.12.2011 demanded and accepted illegal gratification of Rs.10,000/- from the complainant-Sri Bettegowda in Gokul Krishna Hotel, beside Gangamma Thimmaiah Kalyana Manatap, Basaveshwaranagar, Bangalore, as a motive or reward for showing an official favour in the matter of rectification of the measurement of the built up area and to reduce the tax amount and thereby committed an offence punishable
10 Spl.C.C.127/2012 under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused being a public servant, working as Revenue Inspector, Kaveripura, BBMP Ward No.103, Govindarajanagara Sub-Divsion, Bangalore, on 13.12.2011 by abusing his position as public servant, by corrupt or illegal means and without public interest obtained Rs.10,000/- from the complainant- Sri Bettegowda as a pecuniary advantage and thereby committed Criminal mis-conduct punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988?
3. What order?
10. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER
for the following:
REASONS
11. POINT No.1 AND 2: For the sake of convenience and to avoid repetition of facts, I have taken both the points together for consideration.
12. The prosecution has examined CW11-Sri Shankarelingegowda-the then Commissioner, BBMP, Bangalore, as PW1. PW1 is the Sanctioning Authority, who accorded sanction to prosecute the accused. The Sanction Order dated 22.3.2012, is produced and marked as Ex.P1.
11 Spl.C.C.127/2012
13. The prosecution has examined CW2-P.Manjunath as PW2. According to the prosecution case, PW2 is shadow witness. PW2 has deposed that, on 13.12.2011, CW3-Rakshit Ganapathi & he were called to Lokayuktha Police Station to act as witnesses in the trap. Complainant-Sri Bettegowda was present. Contents of the complaint were made known to them. Complainant produced Rs.10,000/-. The serial number of the currency notes was recorded. The phenolphthalein powder was applied on the currency notes. CW3-Rakshit Ganapathi, after verifying & counting the tainted currency notes placed it in the left side pocket of the complainant. Thereafter, both hand fingers of CW3 were washed in sodium carbonate solution. The said solution turned to pink colour. Some instructions were given to the complainant when he was going to meet the accused to give money. Spy Camera & Voice Recorder were given to the complainant to record the conversation/scene. He was instructed to follow the complainant and to observe what transpires between the complainant & the accused. Entrustment Mahazar as per Ex.P5 was prepared and obtained the signatures.
14. PW2 has further deposed that, at about 4.15 PM, they left for Kaveripura Ward in Maruti Omni Car. They were altogether 9 members in the Trap Team. On the way to Kaveripura Ward, the complainant called the accused through his Mobile but it was not reachable. Complainant told the Investigating Officer that, generally after 5.00 PM, the accused would be available in the ARO Office situated in Ambedkar Stadium, behind Sri Gangamma Thimmaiah Kalyana Mantapa, Basaveshwaranagara. Accordingly, they reached the place nearby Sri Gangamma Thimmaiah Kalyana Mantapa. At about 6.00 PM, once again the complainant called the 12 Spl.C.C.127/2012 accused through his Mobile. He was told by the accused to come nearby the main gate of Sri Gangamma Thimmaiah Kalyana Mantapa. The complainant went nearby main gate of Sri Gangamma Thimmaiah Kalyana Mantapa. He followed the complainant from a distance of 15 ft. One of the Police Constables had also accompanied him. The complainant met the accused. Both of them went to Gokul Krishna Hotel. They ordered for the milk. Police Constable & he sat in the next table and had a coffee. The complainant & the accused were talking to each other. The accused asked the complainant whether he brought money. The complainant paid the money to the accused, who in turn received from his right hand, counted it by using both hands and kept in the left side shirt pocket. The complainant gave pre-instructed signal. Immediately the Trap Team Members rushed to the spot and apprehended the accused. Both the hand fingers of the accused were washed separately in sodium carbonate solution. The said solution turned to pink colour. Thereafter, tainted currency notes were recovered from the accused and tallied with the Currency Notes Sheet. Trap Mahazar was prepared as per Ex.P6 and obtained the signature of the witnesses. Investigating Officer has obtained the signature of one of the workers of Gokul Krishna Hotel, who witnessed the incident, to the Trap Mahazar. The entire trap proceedings were covered with video. The accused was brought to the office of the ARO. Attendance Register & some of the documents were seized from the office of the ARO. The documents found in the two wheeler of the accused were also seized. Thereafter the accused was brought to Lokayuktha Police Station. The Voice Recorder was played in the presence of the witnesses and 13 Spl.C.C.127/2012 higher Officer of the accused. The Higher Officer of the accused has identified the voice of the accused. The contents of the Voice Recorder were converted to CD. The accused gave his statement in writing. The shirt of the accused was seized by making an alternate arrangement. All the articles were seized with Metal Seal by using English letter 'K' and Metal Seal was handed over to him. He has issued an acknowledgment in this regard.
15. During the course of cross-examination made on behalf of the accused, it is elicited that, when the complainant went nearby main gate of Sri Gangamma Thimmaiah Kalyana Mantapa, he was standing at a distance of 30 meters from the complainant and he did not overhear the conversation between the complainant & the accused. It is further elicited that, he did not over hear the conversation between the complainant & the accused in Gokul Krishna Hotel as it was crowded with customers.
16. The prosecution has examined CW5-Varadarajaiah as PW3. PW3 is the elder brother of the complainant-Bettegowda. PW3 has deposed that, BBMP has issued a notice on 7.2.2011 in respect of his house property situated at Kaveripura, to pay Rs.45,699/- towards arrears of tax from the year 2008-09 to 2010-11. In the said notice, the measurement of the property was shown in excess. He has entrusted the work of payment of tax to his younger brother-Bettegowda. About 3-4 years back, his brother-Bettegowda submitted an application before BBMP for reducing the measurement of the built up area from 1200 sq.ft to 1000 sq.ft. After one week, his brother informed him that, 14 Spl.C.C.127/2012 Lokayuktha Police trapped one Hutchappa(accused) while demanding & accepting illegal gratification.
17. The prosecution has examined CW19-Niranjan Kumar as PW4. PW4 is the Investigating Officer. PW-4 has deposed about registering of FIR, drawing of Entrustment Mahazar, laying of trap, resultant hand wash of accused turning to pink colour, recovery of currency notes of Rs.10,000/- (9 currency notes denomination of Rs.1000/- and 2 currency notes denomination of Rs.500/-) from the accused, playing of Digital Voice Recorder and Spy Camera containing the conversation/scene, converting into CD and transcript into writing, identification of the accused & his voice through CW7 & CW8, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, receiving of Spot Sketch, Chemical Examination Report, Sanction Order from the Competent Authority to prosecute the accused, filing of charge sheet, etc.
18. The Hon'ble High Court of Karnataka in the case of R.Srinivasan (2016 Cri.L.J.3066) held that:
"The accused had no power to do official favour in the matter of collecting pro-rata charges to be paid to BWSSB, hence there was no possibility for the accused to demand for bribe".
19. The Hon'ble Supreme Court in the case of Krishan Chander (2016 Cri.L.J 1079) held that:
"Demand and acceptance of bribe is sine-qua-non for constituting offence under Sec.7 & 13(1)(d) of P.C.Act- Complainant turning hostile on point of demand and 15 Spl.C.C.127/2012 acceptance of bribe by accused- Panch witness did not hear conversation between accused and complainant at time when complainant had approached him to give bribe money- Investigating Officer's evidence silent as to contents of statement of complainant recorded u/s 161 of Cr.P.C.- factum of demand not proved."
20. The Hon'ble High Court of Karnataka in the case of M.Gopalakrishnaiah and others (2010 (3) KCCR 1851) held that:
"Even to draw a presumption u/s 20 of the P C Act, the prosecution is required to prove that there was demand and acceptance- if the demand and acceptance for the purpose of official favour is proved by the prosecution beyond the reasonable doubt, the burden may shift on the accused the same- however when the initial burden of proving the demand and acceptance is not proved the presumption u/s 20 of the Act does not arise.
21. The Hon'ble Supreme Court in the case of Dynaneshwar Laxman Rao Wankhede; (2010) 2 Supreme Court cases (Cri) 385 held that:
"Demand of illegal gratification is sine-qua-non for constitution of an offence under the provisions of the Act- for arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on record in their entirety- For said purpose, indisputably, the presumptive evidence laid down in Section 20 of the Act, must also be taken into consideration but then the standard of burden of proof on the accused vis-à-vis that on the prosecution would differ- Before, however, the accused is called upon as to how the 16 Spl.C.C.127/2012 amount in question was found in his possession, the foundational facts must be established by the prosecution- Even while invoking provisions of Section 20, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
22. The Hon'ble High Court of Tripura in the case of State of Tripura -v- Dipankar Majumder 2016 ( Cri.L.J.) 1310 held that:
"Compact Disc produced before the Court was not accompanied by Certificate as required under Section 65-B(2) of the Evidence Act, hence CD cannot be admitted in evidence.
23. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
17 Spl.C.C.127/2012
24. In the Trap case, the complainant is the material witness to prove the demand & acceptance of bribe amount by the accused. In the instant case, the complainant is reported to be dead. Hence, the prosecution could not examine the complainant. The contents of the complaint are not proved. In the absence of the evidence of the complainant, the best evidence to prove the demand of bribe prior to the filing of the complaint is not available before the Court.
25. According to the prosecution, PW2 is the shadow witness, who followed the complainant and overheard the conversation between the complainant & the accused and saw the incident. Of course, PW2 supported the case of the prosecution in his examination-in-chief. But during the course of cross- examination PW2 has deposed that, when the complainant went nearby main gate of Sri Gangamma Thimmaiah Kalyana Mantapa, he was standing at the distance of 30 meters from the complainant and he did not overhear the conversation between the complainant & the accused. Even in the Gokul Krishna Hotel, he did not overhear the conversation between the complainant & the accused as it was crowded with customers. PW2 being a shadow witness did not hear conversation between accused and complainant at the time when complainant had approached him to give bribe money. The factum of demand not proved.
26. It is relevant to note that the place of trap was a restaurant and the accused was said to have been trapped during evening hours. At the time of trap, the hotel was crowded with 18 Spl.C.C.127/2012 customers. Apart from the staff, many customers were present in the hotel. But the prosecution has not made an attempt to involve any independent witnesses. CW4-Santhosh- the waiter of Gokul Krishna Hotel said to have seen the incident. But the prosecution has failed to produce him before the Court and examine him as prosecution witness, despite issue of summons, bailable warrant. The alleged demand and acceptance of bribe of Rs.10,000/- by the accused is not corroborated by any independent witness, despite the fact that the alleged incident said to have taken place in a public place.
27. Ex.P3 is the application dated 20.4.2011 given by CW3- Varadarajaiah to the BBMP. In the said application, it is stated that, the ground & first floor of the building measuring 700 sq.feet each is occupied by himself and his brother-Bettegowda and second floor of the building measuring 700 sq. feet is let out to the tenant. But during the survey, the entire building is stated to have been let out to the tenant. Hence, requested to rectify it and to reduce the tax amount. But in the complaint-Ex.P7 it is stated that, in the notice issued by BBMP, the total measurement of the built up area, is shown as 1200 sq.feet instead of 1000 sq.feet, and the accused demanded bribe for rectification of the measurement of the built up area and to reduce the tax amount. The contents of Ex.P3 are totally contrary to the contents of Ex.P7. The Investigating Officer during the investigation, has not collected any documents to ascertain the actual measurement of the property for which rectification is sought for from BBMP. Further, in the complaint, it is stated that the accused demanded additional bribe 19 Spl.C.C.127/2012 in the matter of change of khata already done in respect of the property belongs to his father-in-law. But the Investigating Officer did not collect any documents with regard to the allegation of earlier demand of Rs.5000/- by the accused from the complainant's father-in-law for change of khata.
28. Further, the accused being the Revenue Inspector was not the Competent Authority nor empowered to do an official favour to the complainant in the matter of reducing the tax amount.
29. It is well settled that mere recovery of tainted currency notes and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused, unless there is corroboration of testimony of complainant, regarding demand and acceptance of bribe by the accused. In the present case, demand and acceptance of illegal gratification by the accused, has not been established.
30. In the present case, MO5 & 10 are the CD said to have contained the conversation/scene and MO6 & 12 are the CD containing the video of the pre-trap & trap proceedings, which is sought to be given as secondary evidence are not accompanied by a certificate as specified u/s 65-B of the Evidence Act. In the absence of such certificate these material objects cannot be admitted in evidence.
31. The prosecution case is shrouded with doubt and the benefit of doubt should go to the accused. In this background, the evidence of prosecution witnesses has to be considered and appreciated. Under the circumstances, the defence set up by the 20 Spl.C.C.127/2012 accused that the complainant being his friend took him to Hotel and forcibly thrust the amount in his pocket, is appears to be more probable and acceptable.
32. I have gone through the decisions cited by the learned counsel appearing for the accused. I respectfully agree with principles laid down in the aforesaid decisions. Having regards to the facts & circumstances of the case, and keeping in view the principles laid down in the aforesaid decisions, I have come to the aforesaid conclusion.
33. The prosecution has miserably failed to prove the alleged charges leveled against the accused. Hence, I answer Point Nos.1 & 2 in the Negative.
34. Point No.3:- In the result, I proceed to pass the following:
ORDER The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused stands cancelled.
MO1- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
MO2- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
21 Spl.C.C.127/2012 Mos-3 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment Writer on the computer, after transcription, corrected by me and then pronounced by me in the open court on this the 21st day of February 2018) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 22 Spl.C.C.127/2012 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Shankarlingegowda PW2 P.Manjunath PW3 Varadarajaiah PW4 Niranjan Kumar C
List of documents marked on behalf of prosecution:
Ex.P.1 Sanction Order
Ex.P.1(a)) Signature of PW1
Ex.P.2 Copy of notice issued by BBMP
dated 7.2.2011
Ex.P.3 Representation of PW5
Ex.P.4 Currency notes sheet
Ex.P.4(a) Signature of PW2
Ex.P.4(b) Signature of PW4
Ex.P.5 Pre-Trap Mahazar
Ex.P.5(a) Signature of PW2
Ex.P.5(b) Signature of PW4
Ex.P.6 Trap Mahazar
Ex.P.6(a) Signature of PW2
Ex.P.6(b) Signature of PW4
Ex.P.7 Complaint
Ex.P.7(a) Endorsement with Signature of
PW4
Ex.P.8 Rough sketch
Ex.P.8(a) Signature of PW4
Ex.P.9 Copy of the Attendance Register
Ex.P.10 Transcription sheet of Spy camera
& Voice Recorder
Ex.P.10(a) Signature of PW4
Ex.P.11 Transcription sheet of Voice
Recorder along with complaint
Ex.P.11(a) Signature of PW4
Ex.P.12 Attested copy of file bearing
No.DA(G)103/KTR/115/11-12 of
CW6-Nagaraju
Ex.P.13 Attested copy of file bearing
23 Spl.C.C.127/2012
No.DA(G)103/PR/1/11-12 of
CW5-Varadaraju
Ex.P.14 Statement given by accused
Ex.P.14(a) Signature of accused
Ex.P.15 Spot Sketch
Ex.P.16 Chemical Examination Report
List of material objects marked on behalf of the prosecution:
MO.1 Metal seal MO.2 Currency notes MO.3 Sample solution Article 1 MO.4 Hand wash solution of CW3 Article 2 MO.5 CD containing the conversation Article 3 recorded in the Voice Recorder MO.6 CD containing the contents of Article 4 Videograph taken at the time of pre- trap proceedings MO.7 Sample solution Article 5 MO.8 Right hand wash solution of accused Article 6 MO.9 Left hand wash solution of accused Article 7 MO.10 CD containing the Article 9 conversation/scene recorded in the Digital Voice Recorder and Spy camera at the time of trap. MO.11 Shirt of the accused Article 10 MO.12 CD containing the scene recorded in Article 11 the video at the time of trap
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 24 Spl.C.C.127/2012 Judgment pronounced in Open Court(vide separate Judgment) ORDER Accused present.
The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused stands cancelled.
MO1- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
MO2- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
Mos-3 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77)