Bangalore District Court
Lokayukta Police Inspector vs Sri. K.H. Gopinath on 7 June, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 7th day of June 2018
Spl.C.C. No.109/2012
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: Sri. K.H. Gopinath
S/o Late Hanumanthashetty,
Aged about 53 years,
Asst. Executive Engineer, (Ele)
7th East Sub-Division, BESCOM,
K.R.Puram, Bengaluru.
(Presently at 220 K.V. Receiving
Centre,BESCOM, Antharasanahalli)
Permanent resident of.,
Yadaganahalli,
Maddur Taluk, Mandya District.
(By Sri. Shankar P. Hegde - Adv.)
Date of commission of
offence 25-06-2009
2 Spl.C.C.No.109/2012
Date of report of occurrence 25-06-2009
Date of arrest of accused: 17-06-2009
Date of release of accused 27.06.2009
on bail:
Date of commencement 22-11-2013
of evidence
Date of closing of 04-04-2018
evidence
Name of the complainant Sri. C.Narayanappa
Offences complained of U/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge Acquitted
Date of Judgment: 07-06-2018
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) r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. The brief facts of the prosecution case is as under:-
The accused K.H. Gopinath, Assistant Executive Engineer (Ele), is a Public Servant. The complainant C.Narayanappa who is doing Electrical Contract work in the name of 'Vayuputhra 3 Spl.C.C.No.109/2012 Electrical", gave a complaint to Lokayuktha Police on 25.06.2009 stating that, T. Lakshminarayana of Krishnarajapuram had given work of getting H.T. Service line to his building to him and he gave application before the A.E.E, E-
7 Sub-Division, Krishnarajapuram and Assistant Engineer had attended the file and thereafter file was with the Accused, Assistant Executive Engineer and when he approached accused, he demanded Rs.2,000/- bribe to sign the file. The complainant recorded this conversation with the accused in a small tape recorder and as he was not interested to pay the bribe, he gave complaint. On receiving the complaint, the Lokayukta Police Inspector registered the case in Cr.No.48/2009 and sent FIR to the court. The Lokayukta Police Inspector secured panchas and made all arrangement for trap of the accused and on the same day between 5.30 to 5.40 p.m, when accused received tainted notes of Rs.2,000/- from the complainant, he was caught. The procedures regarding trap have been followed and accused was arrested and was later released on bail by the court. Investigating Officer continued investigation and after completion of investigation and after obtaining prosecution sanction order filed charge sheet against the accused and the case was registered in Spl.C.C.No.128/2010. The accused appeared before the Court 4 Spl.C.C.No.109/2012 and filed application for discharge. The application for discharge was allowed and accused was discharged by holding that prosecution sanction order is not valid. Thereafter, investigating officer has obtained fresh sanction order and then filed the charge sheet against the accused and case is registered as Spl.C.C.No.109/2012.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to him. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against the accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
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4. In support of the prosecution case, PWs 1 to 8 are examined. Documents as per Exs.P.1 to P.43 are marked. For the prosecution, MOs 1 to 15 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and he has denied the incriminating evidence appearing against him. Accused has filed written statement U/s.313 of Cr.P.C and also produced some documents. The accused has also led evidence of Dws.1 and 2 in support of his defence. Exs.D.1 to D.3 are also marked for the accused.
5 Spl.C.C.No.109/20126. Heard the arguments and perused the records.
7. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves that there is valid Sanction to prosecute the accused ?
2. Whether the prosecution proves beyond all reasonable doubt that accused, being public servant working as Assistant Executive Engineer (Ele.) 7th East Sub-
Division, BESCOM, K.R.Puram, Bengaluru has demanded bribe of Rs.2,000/- from the complainant C.Narayanappa, Electric Contractor for signing the file relating to H.T.Service Line of T.Lakshminarayana of Krishnarajapuram, on whose behalf the complainant had moved the application, and on 25.06.2009 between 5.30 to 5.40 p.m., in his office in BESCOM, 7th East Sub-
Division, K.R.Puram, Bengaluru, he again demanded and received bribe amount of Rs.2,000/- from the complainant, as illegal gratification as a motive or reward to do official act or favour and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution further proves beyond all reasonable doubt that accused being public servant working as Assistant Executive Engineer (Ele) in BESCOM 7th East Sub-Division, K.R.Puram, Bengaluru has on 25.06.2009 between 5.30 to 5.40 p.m., in his chamber in BESCOM 7th East 6 Spl.C.C.No.109/2012 Sub-Division, by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.2,000/- without public interest from the complainant C.Narayanappa and thereby committed criminal misconduct which is an offence u/s.13(1)(d) of Prevention of Corruption Act, punishable u/s. 13 (2) of Prevention of Corruption Act?
4. What order?
8. My findings on the above points are:-
Point No.1 : In the affirmative Point No. 2 : In the Negative Point No. 3 : In the Negative Point No. 4 : As per final order, for the following:
REASONS
9. Point No.1: The offences alleged against accused are under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act. Since accused is public servant, working as Assistant Executive Engineer (Ele), sanction from the competent authority is necessary to prosecute him. Earlier, after completion of investigation, charge sheet was filed in Spl.C.C.No.128/2010 and on application filed by the accused he was discharged by holding that the prosecution sanction order is not given by the competent authority. Thereafter again prosecution sanction order was obtained and then charge sheet has been filed and the present case has been registered. To 7 Spl.C.C.No.109/2012 prove valid sanction, Dr.Muddumohan, previous Director, Administration and HR of KPTCL has given evidence as PW.4. In his evidence he has stated about receiving of requisition along with investigation records from ADGP, Karnataka Lokayuktha. He has stated that the requisition of ADGP and all the materials produced by him were placed before KPTCL Board and Board verified all these records in its meeting dated 16.01.2012 and came to conclusion that, there is prima-facie material to accord sanction to prosecute the accused and decided to issue prosecution sanction order against the accused and authorised him to issue the order. He has stated that as per authorization, he has issued prosecution sanction order as per Ex.P.27. In his cross-examination for the accused, PW.4 has stated that the office has received requisition sent by ADGP and has stated that he has not attended meeting of the Board, but his Predecessor had attended the meeting. He has admitted that, in Ex.P.27 details of the Board meeting dated 16.01.2012 is not mentioned and has denied that Ex.P.27 is personally given by him and the Board has not passed any resolution for according sanction to prosecution the case.
10. On looking to the evidence of Pw.4 and prosecution sanction order issued at Ex.P.27, it is clear that the ADGP, Karnataka Lokayuktha has sent requisition along with copies of 8 Spl.C.C.No.109/2012 investigation records and all these materials were placed before the Board and it has passed the resolution to accord sanction to prosecute the accused and then authorized Pw.4 to issue the prosecution sanction order and accordingly, Ex.P.27 has been given by him. There is no material to show that the prosecution sanction order issued by Pw.4 on behalf of Board as per its resolution is not proper. Moreover, on the basis of same materials which were available before KPTCL Board, this Court has taken cognizance of the offences and has even framed charge. Therefore, prosecution is successful in proving that there is valid prosecution sanction order against the accused. Accordingly, Point No.1 is answered in the affirmative.
11. Point Nos.2 and 3 : As these two points are inter-linked with each other, they are taken together for discussion to avoid repetition.
12. To prove the charge against accused, prosecution has examined PWs 1 to 8. PW.1- Sri.C.Narayanappa is complainant. Pw.2- Sri.Ravikumar and Pw.3- Sri.Nagaraj.B.Vaga are the panch witnesses. Pw.4 Sri.Dr.Muddumohan is a Medical Officer who has issued prosecution sanction order. Pw.5- Sri.Mohammed Imran is the officer in BESCOM who is 9 Spl.C.C.No.109/2012 said to have identified the voice of the accused in the Audio Cassette. Pw.6- Sri.T.Lakshminarayana is the person who had entrusted the work of obtaining electricity supply to his new building to complainant. Pw8- Sri. Mohammad Irshad, Lokayukta Police Inspector is the Investigating Officer. Pw.7- Sri.Anil Kumar.V is another Investigating officer who has filed charge sheet after obtaining fresh prosecution sanction order.
13. On behalf of the prosecution the documents are marked as Exs.P.1 to P.43. The complaint is marked as Ex.P.31 and FIR as Ex.P.32. The sheet in which number of currency notes is noted is marked as Ex.P.1. Pre-trap mahazar is marked as Ex.P.2. Exs.P.3 to P.12 are the photographs taken at the time of Pre-trap proceedings. Exs.P.14 to P.25 are the photographs taken at the time of trap proceedings. Ex.P.26 is the explanation said to have been given by accused. Prosecution sanction order is marked as Ex.P.27. Report of Pw.5 is marked as Ex.P.28 and portion of his statement is marked as Exs.P.29. The memo issued by A.D.G.P to Pw.7 to file the charge sheet is marked as Ex.P.30. The transcription of recordings in the Cassette produced by the complainant at the time of giving complaint is marked as Ex.P.33. Ex.P.34 is a sample seal and Ex.P.35 is acknowledgment and Chemical examination report is marked as Ex.P.36. The Sketch of the 10 Spl.C.C.No.109/2012 spot is marked as Ex.P.37. Copy of file pertaining to work of complainant is marked as Ex.P.38. The service particulars of the accused is marked as Ex.P.39. The report regarding details of the accused given by Executive Engineer is marked as Ex.P.40 and Ex.P.41 is the details of the file pertaining to work of Pw.6. The two requisitions given by the investigating officer to the Court for rectifying mistakes in Pre-Trap and Trap mahazar are marked as Exs.P.42 and P.43. Material Objects M.Os.1 to 15 are also marked in this case. The tainted notes of Rs.2,000/- and cover are marked as M.Os.1 and 2. The metal seal is marked as M.O.3, the pant of the accused is marked as M.O.4. The solution taken in a bottle at different stages of the proceedings are marked as M.Os.5 to 13. M.Os.14 and 15 are the Cassettes of recorded conversation.
14. For the accused, Dw.1- Jagganath Yalgod, Assistant Engineer BESCOM is examined and another witness Sri.Yogesh Gowda is examined as Dw.2. The transcription of conversation said to have been recorded in the Cassette at the time of trap is confronted to Pw.1 and marked as Ex.D.1. The copy of the payment certificate is marked as Ex.D.2. The certified copy of the evidence given by Pw.2 in the Departmental Enquiry against the present accused is marked as Ex.D.3. The letter issued by KPTCL Employee's Union dated 01.06.2009 regarding 11 Spl.C.C.No.109/2012 donation to be collected by present accused - Gopinath.K.H and Pw.5- Mohammed Imran with regard to Pooja in newly constructed temple in the office compound of 7th East Sub- Division of BESCOM, is marked as Ex.D.4.
15. As per the materials placed before this Court, case of the prosecution is that PW1 complainant gave complaint as per Ex.P31 on 25.06.2009 stating that, Pw.6- T.Lakshminarayana had entrusted work of obtaining H.T.Service connection to Pw.1 contractor and Pw.1 had given application to the office of Assistant Executive Engineer (Ele) 7th East Sub-Division, Krishnarajapuram, Bengaluru in which accused was the Assistant Executive Engineer and after Assistant Engineer attending the file, it came to Accused and he has not signed the file and when Pw.1 contacted him, accused demanded Rs.2,000/- to sign the file. This conversation is stated to have been recorded by Pw.1 in a Cassette in the small tape recorder and produced along with complaint before the investigating officer/ Pw.8. As per the prosecution case, after receiving the complaint, Pw.8 registered the case and secured Pws.2 and Pw.3 and followed pre-trap procedures. Pw.1 produced Rs.2,000/- in denomination of Rs.500x4 and number of currency notes is noted down on Ex.P.1 and phenolphthalein powder was applied and on the instructions of Pw.8, Pw.3 kept 12 Spl.C.C.No.109/2012 tainted notes in the left side shirt pocket of Pw.1 and hands of Pw.3 were washed in the Sodium Carbonate solution and solution turned to pink colour and was seized. The Cassette produced by the complainant at the time of giving complaint was played and the contents were transcribed as per Ex.P.33 and signatures were taken. The instructions were given to Pw.1 to meet the accused and to give tainted notes only in case of demand and then flash signal by wiping the head and button camera and Audio recorder were given to Pw.1. Pw.2 was instructed to be a Shadow witness. Pre-trap mahazar as per Ex.P.2 was prepared and signatures were taken. At the time of pre-trap proceedings photos as per Exs.P.3 to 12 were taken.
16. It is further case of prosecution that, thereafter, trap team went towards office of the accused in K.R.Puram 7th East Sub-Division, BESCOM, Bengaluru and after stopping the vehicle at a distance and after reminding the instructions given to Pw.1 and Pw.2 earlier, they were sent at 2.15 p.m., to the office of Accused and as accused was not in his chamber, after accused coming to his chamber, at 5.30 p.m., Pws.1 and 2 have entered the chamber of the accused and Pw.1 talked about the file with accused and when accused asked for amount, he gave tainted notes and then at about 5.40 p.m., 13 Spl.C.C.No.109/2012 Pw.1 came out and gave signal to the trap team and immediately Pw.8 along with Pw.3 and his staff entered the chamber of the accused and Pw.1 has shown the accused as a person who has received the tainted notes from him. Pw.8 introduced himself and the team to the accused and ascertained his details. The Sodium Carbonate solution was prepared and the right and left hand fingers of the accused were washed and right hand wash turned to light pink colour and left hand wash turned to dirt colour and the solutions were seized in the bottles. On questioning the accused is stated to have produced the tainted notes by taking out from pant pocket and then it was compared with Ex.P.1 and it tallied and the amount was seized as M.O.1. Thereafter pant of the accused was got removed and pocket portion was washed in sodium carbonate solution and the solution turned to pink colour and pant and solution were seized. According to prosecution, Pw.8 secured copy of the file of Pw.6 as per Ex.P.38 and conversation recorded in the tape recorder was transcribed as per Ex.D.1 and micro cassettes were played before Pw.5 and he identified the voice of the accused and gave report as per Ex.P.28 and cassettes are seized as M.O.14 and 15 and photographs as per Ex.P.14 to 25 were taken at the time of trap proceedings. On questioning, accused is stated to 14 Spl.C.C.No.109/2012 have given statement as per Ex.P.26. Trap mahazar as per Ex.P.13 was prepared and signatures of the witnesses and complainant is taken and copy of the mahazar is also furnished to the accused. Thereafter Pw.8 continued the investigation and secured chemical examination report as per Ex.P.36 and obtained the spot sketch as per Ex.P.37 from the Assistant Engineer of PWD and recorded statements of the witnesses and after completion of investigation, prepared the final report and after receiving the prosecution sanction order, filed the charge sheet. As per the prosecution, after discharge of accused in Spl.C.C.No.128/2010, again prosecution sanction order was obtained from the Board, which was issued by Pw.4 on behalf of Board as per Ex.P.27 and thereafter Pw.7 has filed the charge sheet before the Court.
17. The complainant - Pw.1- Sri.C.Narayanappa, in his evidence has stated the case of the prosecution in brief. He has stated in Chief-examination that, accused asked to pay 'Mamooli' which is cash paid as bribe and has stated that earlier also he had paid Rs.2,000/- in respect of house of another person. He has also stated about the trap mahazar and photographs taken at the time of Pre-trap and trap proceedings. In his cross- examination, he has stated that the conversation held between himself and accused was recorded in the tape recorder and 15 Spl.C.C.No.109/2012 identified the transcription when confronted to him and it is marked as Ex.D.1. He has stated that he might have switched on tape recorder before entering chamber of the accused and after coming out he had switch off and he has correctly recorded the conversation and has stated that only two sentences found in Ex.D.1, might have been recorded in the tape recorder. Pw.1 has admitted that after showing the receipt for having made payment accused used to send the file to Executive Engineer and payment certificate is as per Ex.D.2. Pw.1 has admitted that the Contractor's Association had approached the accused seeking grace period for implementation of Solar Panel. He has admitted that as there is a spring door to enter the chamber of the accused and also there is wooden barricade, happenings inside the chamber is not visible to outsiders. Pw.1 also admitted that Employees Association had constructed Anjaneya temple and were collecting donations from Association and also from the Contractors and the Contractors Association had instructed the Contractors to donate Rs.2,000/- and accused asked him to donate Rs.2,000/- and has admitted that, on 25.06.2009 he has paid Rs.2,000/- as donation. Pw.6- T.Lakshminarayana is said to have given work of H.T Line connection to the complainant and has stated the same. In his cross-examination, he has admitted that he had given electrical contract work to Kumar who is friend 16 Spl.C.C.No.109/2012 and Kumar introduced complainant to him. He has admitted that Kumar or C.Narananappa have not informed him that amount is to be paid in BESCOM Office for getting electrical service and connection.
18. Pw.2- Ravi Kumar.K.H, shadow witness has also stated about the prosecution case in detail. His participation in the pre-trap proceedings and trap proceedings has been stated by the witness. He has stated that accused has taken out the amount from his pant pocket on being questioned by Lokayuktha Police Inspector and thereafter his hand wash was made. The witness was partly treated as hostile and was cross-examined, wherein he has admitted that after payment of Rs.2,000/-, accused kept the file on the table and asked the complainant to get tappal number marked. He has denied that after hand wash accused has taken out tainted notes from his pant pocket. In the cross-examination for the accused he has stated that after entering the office of accused, he stood near wooden stand. He has admitted that accused told that usually signature is not put without receipt for which Pw.1 has told that receipt is already signed. Pw.3- Nagaraj.B.Vaga is another panch witness who has also stated about the prosecution case in his chief evidence. In the cross-examination he has stated that, he was standing at about 10 feet from the office building of the accused and from 17 Spl.C.C.No.109/2012 there Pw.2 was visible and Pw.2 was standing at the door of the chamber of the accused. He has stated that after they entered the office of the accused, when Pw.8 enquired, accused told that amount was towards contribution to Pooja. He has stated that accused was not visible to the person who stand at the door of the office of accused.
19. Pw.5-Mohammed Imran, who was Assistant General Manager in BESCOM, has stated about identifying the voice of accused on hearing the audio conversation played before him and also about giving report a per Ex.P.28. He was treated as hostile and was cross-examined by the learned Public Prosecutor, wherein he has stated that Audio Cassette was played before him through tape reorder and denied that two Cassettes were played and denied his statement given before Lokayuktha Police as per Ex.P.29. In the cross-examination he has admitted that for forwarding the estimate for power sanction by A.E.E, payment certificate is must and he was authorised to issue payment certificate. He has stated that consumer have to produce the receipt for payment of necessary deposit amount and then payment certificate will be issued and he had not issued payment certificate in support of this case. He has admitted that in respect of installation of Solar Water heater, all Contractors had assembled infront of their office and objected 18 Spl.C.C.No.109/2012 for the condition including the complainant. He has admitted that new Anjaneya temple was constructed and donations were collected from the staffs of the office and Contractors for doing Pooja and accused were entrusted with the work of collecting donations and till the date of trap, owner of Vayuputra electrical had not given the donation.
20. Pw.8 Mohammed Irshad, Investigating officer has stated about registering of the case and pre-trap and trap proceedings and about the investigation done and filing of the charge sheet. In his cross-examination, he has stated that the complainant had informed that work of power sanction was pending with the accused and admitted that as per the records, the power sanction order was already passed on 09.06.2009 as mentioned in Page Nos.84 and 85 of the charge sheet in the file Ex.P.38. Pw.8 has stated that he has not made investigation as to whether payment certificate will be given as per Ex.D.2 and he has not investigated as to whether receipt is to be shown for issuance of payment certificate. He has admitted that, new temple was constructed in the office compound of the accused and he has not made investigation as to what decision or resolution was passed in Contractor's association with regard to collection of donation for performance of Mandal Pooja. He has stated that he has not taken certificate under Section 65-B of 19 Spl.C.C.No.109/2012 Indian Evidence Act with regard to the photographs marked at Exs.P.3 to P.12 and Ex.P.14 to P.25. He has stated that he has not made investigation as to which is the receipt referred in Ex.D.1- transcription. He has stated that he has not made investigation regarding dispute between the complainant and the accused about the Solar Panel. Pw.7 Sri.Anil Kumar.V another investigating officer has stated about filing of charge sheet in this case, after obtaining fresh Prosecution sanction order.
21. At the time of recording statement under Section 313 of Cr.P.C, the accused has filed written statement highlighting the admission of the witnesses in their evidence to the effect that amount of Rs.2,000/- was to be paid by the Contractors and new temple was constructed. He has also contended that no work of the complainant was pending and he has not demanded any amount or taken any bribe. He has also produced some documents. On behalf of the accused, Dw.1- Jagganath Yalgod is examined. This witness was even cited by prosecution as Cw.4 but was not examined for the prosecution. Dw.1 has stated that after the trap, documents were secured by Lokayuktha Police Inspector form the Technical Section. He has stated that after issuance of payment certificate issued by the Accounts Section and after producing the receipt for depositing the amount, payment certificate will be issued by the Accounts 20 Spl.C.C.No.109/2012 Section. He has stated about construction of the temple in the office premises and that the Association had requested the employees and Contractors to donate for Pooja and accused and Mohammed Imran were entrusted with the work of collecting donations as per Ex.D.4. He has also stated that prior to trap of the accused, the Contractors, including PW1, were objecting to the circular imposing condition of keeping Solar Water panel for giving power supply connection and the complainant was one of the Contractors who were objecting for Solar condition and they even shouted before the Sub-division office in which accused was working. In the cross-examination, he has stated that he do not know anything about trap proceedings. Dw.2 - Yogesh Gowda has stated in his evidence that a person who has signed Ex.D.4 i.e, Secretary of Primary Committee has died and signature is that of the said Secretary Jyothi Lingarao. Apart from Exs.D.1 to D.4, referred above, accused has also produced a Circular regarding Solar Panel and also produced certified copy of a Judgment in Criminal Appeal No.769/2008 in which Karnataka Lokayuktha police had registered the case against P.Venkateshmurthy on the basis of complaint given by present Pw.1, in which accused was acquitted by the Hon'ble High Court. Accused has also produced FIR to show that a case was 21 Spl.C.C.No.109/2012 registered against the present complainant for interfering in the office work of Junior Engineer, KPTCL.
22. In order to bring home the guilt of the accused for the offences under section 7, 13(1)(d) r/w 13(2) of P.C.Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. On proof of demand and acceptance, presumption under section 20 can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established.
23. As per the prosecution case, accused has demanded and received bribe of Rs.2,000/- from Pw.1, for signing the file pertaining to HT Line Electricity connection work of Pw.6. Pw.6 is stated to have entrusted the work orally to Pw.1 who is an Electrical Contractor. Ex.P.38 file is concerned to the work of the complainant and Pw.6. In Ex.P.38 file, the internal page numbers 68 and 69 show that on 09.06.2009 itself Power sanction to HT Installation of Pw.6 22 Spl.C.C.No.109/2012 Lakshminarayana.T was signed by the accused. There were conditions imposed that 10% supervision charges will be collected in the Division office and that Security Deposit of Rs.1,02,750/- to be given by Demand Draft etc. Therefore as per Ex.P.38, H.T.Power Sanction installation order of Pw.6 was already passed on 09.06.2009. Even Pw.8 in his cross- examination has stated that the complainant had informed that work of power sanction was pending with the accused and admitted that as per records, power sanction order was already passed on 09.06.2009. Therefore the work of power sanction was not pending with the accused as on the date of giving complaint i.e., on 25.06.2009. In the complaint Ex.P.31, it has been stated that application on behalf of Pw.6 for H.T.Service line was pending for 20 days and Assistant Engineer had attended the file and for signing the file, accused demanded the amount. On which date Pw.1 met the accused with regard to clearance of the file and on which date accused demanded the bribe for the first time are not mentioned in the complaint. The complaint is dated 25.06.2009. Though it is mentioned that, when he met the accused, for signing the file he has demanded Rs.2,000/- and it has been recorded in a small tape recorder, date on which said conversation was held between 23 Spl.C.C.No.109/2012 the complainant and accused is not mentioned in the complaint.
24. Ex.P.33 is transcription of conversation held between complainant and the accused before giving of the complaint. Even in this transcription, date on which it was recorded is not mentioned and there are only seven sentences in the conversation and last line is to the effect that complainant can give that much which he will give. This is the only sentence which is highlighted in the pre-trap mahazar to show that there was demand of bribe amount by the accused. Though complaint states that accused demanded Rs.2,000/-, entire transcription of conversation does not contain figures of Rs.2,000/-. In the evidence, Pw.1 has stated that accused asked for Mamuli and he has recorded the conversation. In Ex.P.33 neither the figure 2,000/- nor word Mamuli is found. Apart from this, there is no Certificate U/s.65B of Indian Evidence Act produced in respect of transcription of recording in the Cassette. As held in the decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), "when the secondary evidence of the 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 24 Spl.C.C.No.109/2012 Evidence Act". Therefore Ex.P.33 transcription is not admissible in evidence. In respect of transcription of the alleged recording of the conversation with the accused at the time of trap, though no certificate U/s.65B of Indian Evidence Act is produced before the Court by the Investigating officer, the transcription is confronted to Pw.1 and marked for accused as Ex.D.1 in his cross-examination. Hence this Ex.D.1 would be admissible in evidence. Even Ex.D.1 is having only two lines in which accused states that the complainant is aware that usually he will not sign without receipt and then the complainant states that receipt is signed. It is very strange that in the entire meeting between the complainant and accused at the time of trap which is for about 10 minutes, there is only one sentence each spoken by the accused and Pw.1, which are transcribed as material sentences spoken at the time of trap. In Ex.P.33 or Ex.D.1, demand of any amount by the accused is not found. Therefore, this transcription of the conversation does not help the prosecution to prove the demand.
25. The learned counsel for the accused has vehemently argued that only after preparing payment certificate, the file will come to the accused who is the Assistant Executive Engineer for signing and only after showing the receipt, the payment certificate could be prepared as per 25 Spl.C.C.No.109/2012 Ex.D.2. This is even stated by Dw.1 who is working in Account Sections of the BESCOM. As per Ex.D.1 and as admitted by Pw.8 and also Pw.2 shadow witness, the accused has stated that without receipt he will not sign the file. Which is the receipt referred in this conversation is not made clear by the prosecution. On the other hand, Pw.8 in his cross-examination has stated that he has not made investigation as to when payment certificate will be given as per Ex.D.2 and he has not made investigation as to whether receipt is to be shown for issuance of payment certificate and he do not know the role of accused in power sanction or issuing payment certificate. As stated above the pendency of work is necessary to be established by the prosecution. The power sanction order was already signed by the accused on 09.06.2009 as per Ex.P.38. The amount of Rs.1,02,750/- Security deposit was paid by Demand Draft on 15.06.2009 as appearing in Ex.D.2 and on 26.06.2009 the Assistant Executive Engineer (Ele) has signed the payment certificate. In Ex.D.1, conversation, Accused has stated that only after producing receipt, he will sign the payment certificate. As stated by Pw.5, he was the authority to prepare payment certificate and consumer have to produce the receipt for payment and then the payment certificate will be issued. Therefore unless amount is deposited and receipt is 26 Spl.C.C.No.109/2012 produced payment certificate will not be signed. There is no material before the Court to show that though Demand Draft was taken on 15.06.2009, it was produced in the office and the receipt was issued regarding the same. Therefore Preliminary requirement of pendency of any work before the accused is not clearly established in this case.
26. Even otherwise, absolutely there is no clear evidence showing that there was demand for bribe of Rs,2000/- by the accused. There is no direct demand for bribe by the accused even as per Audio recordings alleged to have been made by the complainant. Therefore the only material available to prove the demand of bribe by the accused before giving complaint is evidence of Pw.1. Pw.1 has stated that the accused had demanded Mamooli. The evidence before the Court clearly show that regarding condition to install Solar Panel for granting power supply, there was dispute of the Contractors with the Officials of the BESCOM. Even Pw,1 in his cross-examination has admitted that their Association had approached the accused seeking grace period for implementation of Solar Panel. Evidence of Pw.5 and Dw.1 show that, the Contractors had even gathered outside the office and shouted. In the course of recording 313 of Statement, the accused has produced the certified copy of the 27 Spl.C.C.No.109/2012 Judgment of Hon'ble High Court in Crl.A.No.769/2009 dated 18.04.2012, in State by Police Inspector, City Division, Karnataka Lokayukta v/s Sri.T.Venkateshurthy which was based on a case registered by Lokayukta police on the basis of complaint given by the very same complainant of this case. In that Judgment at Page No.12, in Para-14, the Hon'ble High Court has held "... In fact, in view of the shadow witness not supporting the prosecution case with regard to the demand made by the accused, the sole evidence of Pw.2 could not have been acted upon by the Trial Court, when the said witness is shown to be not a truthful witness and he is in the habit of filing complaints quite often ... ". This Pw.2 referred in this Judgment is complainant in that case, who is also complainant of this case. On the basis of these observations learned Counsel for the accused has submitted that Pw.1 is not a truthful witness and he is in the habit of filing the complaint quite often and on the basis of his evidence case of the prosecution cannot be accepted. Except evidence of Pw.1 who was having some grievances against the officers of BESCOM with regard to implementation of Solar Panel, there is no other evidence to prove the demand of bribe. In view of the evidence of other witnesses and the documents 28 Spl.C.C.No.109/2012 produced, evidence of Pw.1, standing alone, will not prove the case of demand of bribe by accused before giving complaint.
27. Even at the time of trap, accused is stated to have demanded bribe. Ex.D.1 clearly show that there is no specific word of demand found in the conversation had between accused and complainant at the time of Trap. Pws.1 and 2 were sent together to meet the accused. Pw.1 has admitted that Pw.2 was standing outside the spring door and the wooden barricade and Pw.2 could not see the happenings in the chamber. Pw.2 has clearly admitted that he could only hear the word 'receipt' in the conversation between the complainant and accused. With regard to receipt, explanation is given in the evidence of Pw.5 and Dw.1. Accused stating that without receipt he will not sign the file, cannot be considered as a demand of bribe by the accused. There is no other evidence to prove the alleged demand of bribe by the accused at the time of Trap. Therefore the accused demanding bribe of Rs.2,000/- from the complainant, to attend his file pertaining to Pw.6, before giving complaint or at the time of trap is not established by any clear evidence. Therefore the prosecution has failed to prove that the accused has demanded bribe of Rs.2,000/- to attend the work as stated.
29 Spl.C.C.No.109/201228. Then coming to acceptance of bribe amount, as per prosecution case, Pws.1 and 2 went to the office of the accused and other trap team members were outside. As per evidence of Pw.3, he could see Pw.2 standing outside the chamber of the accused. Pw.2 has stated in his chief evidence that when they went to the office, accused was not there and he came at 5.30 p.m., and then Pw.1 went inside the chamber of the accused and paid Rs.2,000/- and requested the accused to execute his work and accused received the cash and kept the same in the right side of pant pocket and thereafter signal is given. Pw.2 in his cross examination has stated that he was standing at the door and he could only hear the word 'receipt' in the conversation held between the complainant and accused. Therefore, PW2 who could here only the word 'receipt' was standing near the door and has not seen the happenings inside the chamber of accused. According to Pw.1 when he entered the chamber, accused asked whether he had brought Mamooli. The things happening inside the chamber of the accused immediately on complainant entering the chamber as stated by Pws.1, 2 and as mentioned in Ex.D.1 are totally different. Moreover, though accused is seriously disputing the demand of bribe, he is not seriously disputing the receipt of tainted notes of Rs.2,000/- from Pw.1. Accused is contending that he received the amount as a 30 Spl.C.C.No.109/2012 donation for Pooja in newly constructed temple in office compound BESCOM.
29. The cross-examination of Pws.1 to 3 and explanation of accused as per Ex.P.26 and evidence of Dw.1, show that new temple was constructed in the office compound and for performing Pooja donations were being collected by the Employees Association from the staff and also from the Contractors. Pw.1 in his cross-examination has admitted that Contractors Association had directed the Contractors to pay donations of Rs.2000/-and also stated that on 25.06.2009 he has given the donation of Rs.2,000/-. 25.0.6.2009 itself is the date of trap. Therefore Pw.1 has admitted that he has paid Rs.2,000/- to accused as donation on date of Trap. As per Ex.D.4, accused and Pw.5 were entrusted the work of collecting donations. This is even admitted by pw.1 in his cross- examination. Pw.8 Investigating officer stated that has not made any investigation regarding the resolution or decision made by the Employees Association for collection of donation. Even after accused giving written explanation as per Ex.P.27 stating that he has received the amount as a donation to the temple, Pw.8 has not made investigation regarding the same. Even Pws.2 and 3 in their cross-examination have stated that accused informed that he has received amount as a donation 31 Spl.C.C.No.109/2012 and not as a bribe and they do not know whether his explanation is correct or not. On looking to the evidence of all these witnesses, the defence of the accused that he has received the amount of Rs.2,000/- as donation from complainant to the new temple appears highly probable.
30. The learned counsel for the accused has cited a decision reported in (2012) 11 Supreme Court Cases 642(Mukut Bihari and another /vs/ State of Rajasthan) in which, Hon'ble Supreme Court has held that:
"While invoking Provisions of Section 20 of Prevention of Corruption Act, the Court is required to consider explanation offered by the accused, if any, only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt".
31. As held in this decision, to rebut the presumption under section 20 of P.C.Act, the accused can establish his defence on preponderance of probability. As per the evidence of Pws.1 to 3, in the chamber of accused there is a spring door and there is also wooden barricade and the person outside the chamber, cannot see the happenings inside the chamber. Pw.2 was standing outside the chamber near the door as admitted by him and also Pws.1 and 3. Therefore what happened inside the chamber of the accused is not seen by Pw.2. Pw.1 himself has 32 Spl.C.C.No.109/2012 stated that he has given Rs.2,000/- as donation on 25.06.2009. It is no where stated that, apart from giving Rs.2,000/- tainted notes, on the same day, Pw.1 has made another payment of Rs.2,000/- towards donation separately. On looking to all these aspects though the receipt of Rs.2,000/- tainted notes by the accused is admitted and recovery of amount from the accused is not in dispute, receipt of said amount as a bribe by the accused is not established. Accused demanding Rs.2,000/- as bribe and receiving the tainted notes as bribe is not established in this case. When demand of bribe is not established, recovery of tainted notes will not have any relevance.
32. In a decision reported in (2015) 11 SCC 314, (C.Sukumaran /vs/ State of Kerala) Hon'ble Supreme Court has held in para No.13 as under:
".....it has been continuously held by this Court in a Catena of cases after interpretation of the provisions of Sections 7 and 13(1) (d) of the Act that the demand of illegal gratification by the accused is the sine-qua-non for constituting an offence under the provisions of the Act".
33. In another decision reported in AIR 2015 SC 3549, (P.Satyanarayana Murthy /vs/ Dist. Inspector of Police and another) in Para No.21 and 22, the Hon'ble Supreme Court has held as under:
33 Spl.C.C.No.109/2012"21. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or 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."
34. In another decision reported in (2009) 3 Supreme Court Cases 779, (C.M.Girish Babu /vs/ CBI, Cochin, High Court of Kerala,) the Hon'ble Supreme Court has held that:
" Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".
In para 18, it is held " ... mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".
34 Spl.C.C.No.109/201235. In (1979) 4 Supreme Court Cases 725, Suraj Mal /vs/ State (Delhi Administration) the Hon'ble Supreme Court has held, "The mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money".
36. These decisions of the Hon'ble Supreme Court makes it clear that proof of demand is sine-qua-non qua for the offenceU/s.7 and 13(d)of Prevention of Corruption Act. As discussed above, the demand of bribe by the accused is not proved in this case. Similarly, acceptance of tainted notes by the accused as Bribe is also not established. Presumption under Section 20 of P.C.Act also cannot be drawn, when demand of illegal gratification by the accused is not established.
37. In (2006) 13 SCC 305, V.Venkata Subba Rao Vs State, Represented by Inspector of Police,( A.P.) the Hon'ble Supreme Court has held that, when demand by accused is not proved, the presumption under Sec.20 of the Prevention of Corruption Act cannot be raised. Even otherwise, accused has successfully rebutted the presumption if any, by establishing his defence that amount is received as donation by preponderance of probability.
35 Spl.C.C.No.109/2012Therefore, prosecution has failed to prove the demand and acceptance of the bribe amount by the accused beyond all reasonable doubt. Hence, prosecution has failed to prove the commission of offence under Sec.7 of Prevention of Corruption Act by the accused. Similarly, any criminal mis-conduct done by accused by receiving pecuniary advantage without any public interest is also not proved. Therefore, prosecution has failed to prove the guilt of accused beyond reasonable doubt. Accordingly, Point Nos. 2 and 3 are answered in the negative.
[
38. Point No.4: For the discussions made above, following order is passed:
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
MO-1, amount of Rs.2,000/- is ordered to be confiscated to the State Government after the expiry of appeal period.36 Spl.C.C.No.109/2012
MO-3 Metal seal is ordered to be returned to the Karnataka Lokayukta police after the expiry of appeal period.
M.Os.2 and 4 to 15 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 7th day of June, 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 C.Narayanappa PW.2 Ravi Kumar PW.3 Nagaraj B.Vaga PW.4 Dr. Muddumohan PW.5 Mohd. Imran PW.6 T.Lakshminarayana PW.7 Anil Kumar PW.8 Mohd. Irshad
List of documents exhibited for the prosecution:
Ex.P.1 Currency details sheet P.1 (a) & (b) Signature of PW3 P.1 (c) (d) Signature of PW8 Ex.P.2 Pre-trap mahazar 37 Spl.C.C.No.109/2012 P.2 (a) Signature of PW2 P.2 (b) to (e) Signature of PW3 P.2 (f) Signature of PW8 Ex.P.3 to 12 Photos (Pre-trap) Ex.P.13 Trap mahazar P.13 (a) to (g) Signature of PW2 P.13 (h) to (n) Signature of PW3 Ex.P.13 (o) Signature of PW1 P.13(p) Signature of PW8 Ex.P.14 to 25 Trap photos (12) Ex.P.26 Explanation of accused P.26 (a) Signature of PW3 P.26 (b) Signature of PW8 Ex.P.27 Prosecution sanction order P.27 (a) Signature of PW4 Ex.P.28 Report of PW5 P.28 (a) Signature of PW5 Ex.P.29 Portion of statement of PW5 Ex.P.30 Memo of ADGP P.30 (a) Signature of PW7 Ex.P.31 Complaint P.31 (a) Signature of PW8 Ex.P.32 FIR P.32 (a) Signature of PW8 Ex.P.33 Cassette transcription Ex.P.34 Sample Seal Ex.P.35 Acknowledgment Ex.P.36 Chemical examination Report Ex.P.37 Sketch Ex.P.38 Attested copy of the File Ex.P.39 Service particulars of accused P.39 (a) Signature of PW8 Ex.P.40 Report on duties of Accused. Ex.P.41 Report on work of PW6. P.41 (a) Signature of PW8 Ex.P.42 and 43 Requisition to rectify mistake in pre-trap 38 Spl.C.C.No.109/2012 mahazar and Trap Mahazars. P.42 (a) and 43 (a) Signature of PW8
Evidence adduced on behalf of the defence :
DW.1 : Jagannath Yalgod DW.2 : Yogesh Gowda Documents marked on behalf of the defence: Ex.D.1 : Transcription Ex.D.2 : Payment certificate Ex.D.3 : Department evidence of PW2 Ex.D.4 : Request letter of associations D.4 (a): Signature of DW2 Material Objects marked by Prosecution :
MO-1 Rs.2,000/- (500X4) Cash
MO-2 Cover
MO-3 "A" Metal Seal
MO-4 Pant of accused
MOs-5 to 13 Bottles solutions
MO-14 & 15 Cassettes
MO-14 (a) Cover
MO-15 (a) Cover
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
39 Spl.C.C.No.109/2012