Bangalore District Court
Lokayukta Police Inspector vs Smt.Chandrakala C/O on 1 March, 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 1st day of March 2018
Spl.C.C. No. 347/2015
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: Smt.Chandrakala C/o
H.N.Shivaraju, 49 years,
Asst. Police Sub-Inspector,
Directorate of Civil Rights
Enforcement, Palace Road,
Bengaluru-01.
R/at No.885/7, Vidyanagara,
Gowribidanuru City,
Chikkaballapura District.
(By Sri. Raghunath- Adv)
Date of commission of 07-10-2013 and
offence 29-10-2013
Date of report of occurrence 30-10-2013
Date of arrest of accused: ----
2 Spl.C.No.347/2015
Date of release of accused 26-08-2015
on bail:
Date of commencement 17-01-2017
of evidence
Date of closing of 19-12-2017
evidence
Name of the complainant Sri. P.Ramesh
Offences complained of U/s.7 of PC Act,
1988.
Opinion of the Judge Acquitted
Date of Judgment: 01-03-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused for the offence punishable under Section 7 of Prevention of Corruption Act 1988.
2. The brief facts of the prosecution case is that, --
Accused Smt. Chandrakala is Asst. Police Sub-Inspector working in Civil Rights Enforcement Directorate and is public servant. The complainant P.Ramesh S/o Puttarangappa gave complaint to the Lokayukta police on 30.10.2013 stating that for non re-payment of loan of Rs.15,000/-, Siddaraju had given complaint to Rajgopalanagara Police Station and Police called complainant and matter was settled, but Siddaraju had also given complaint in Civil Rights Enforcement Directorate against 3 Spl.C.No.347/2015 complainant and accused-ASI working in the said Directorate called complainant on 07.10.2013 and recorded his statement and thereafter she called him by mobile phone and demanded amount for closing the complaint and thereafter complainant called her and she asked him to pay, Rs.5,000/- for higher officers and some amount to her. When complainant expressed his inability to pay such amount, she asked him to pay Rs.3,000/-. Even thereafter accused again called complainant and also his wife and on 29.10.2013 she again called and demanded the bribe. Complainant has recorded his conversation with accused in his mobile and as he was not interested in giving bribe, along with CD containing the conversation recorded in the mobile, he gave complaint to Lokayukta Police. On receiving the complaint, Lokayukta Police have registered the case in Cr.No.59/2013 and submitted FIR to the court. In Lokayukta office, Investigating Officer secured panchas and followed pre-trap procedures and made all arrangements for trap of accused. Thereafter, trap team visited the office of accused. As accused has not received the amount, trap attempt has failed and trap team came back to Lokayukta office. As there was demand and attempt to receive bribe amount by the accused, Investigating Officer continued the investigation and after completion of investigation and after 4 Spl.C.No.347/2015 obtaining sanction has filed the charge sheet for the offence under Sec.7 of Prevention of Corruption Act.
3. Cognizance of offence is taken by this court. Accused has appeared and is enlarged on bail. Copies of prosecution papers are furnished to Accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against accused and read over to her. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 7 are examined. Documents as per Exs.P.1 to P.23 are marked. For the prosecution MOs 1 to 8 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 the accused has denied all the incriminating evidence appearing against her. The accused has not chosen to lead any defence evidence on her behalf.
6. 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 a valid sanction to prosecute the accused ?
2. Whether the prosecution proves beyond all reasonable doubt that accused being public 5 Spl.C.No.347/2015 servant working as Asst. Sub-Inspector of Police in Civil Rights Enforcement Directorate, Bengaluru, has, for closing the complaint given in her Office by Siddaraju against complainant, on 07.10.2013, 29.10.2013 and on other dates by making phone calls to complainant and at the time of attempted Trap on 30.10.2013 in her Office in Palace road, Bangaluru, demanded Rs.3,000/- as illegal gratification as a motive or reward to do official act or to show an official favour to the complainant and thereby committed offence punishable u/s 7 of Prevention of Corruption Act?
3. 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 : As per final order for the following:
REASONS
9. Point No.1: This point is relating to validity of
sanction to prosecute the accused. Since accused is working as Asst. Sub-Inspector of Police, she is a public servant. For the offence alleged against the accused, obtaining valid sanction from competent authority is mandatory requirement. Prosecution sanction order is produced as Ex.P.13. PW.4 Smt. Divya V.Gopinath, Superintendent of Police, has given evidence stating that she is the competent authority to accord sanction and she has gone through all the investigation materials and 6 Spl.C.No.347/2015 was satisfied that there are sufficient grounds to accord sanction and accordingly she has given sanction Order as per Ex.P.13. In the cross-examination, she has admitted that sub- ordinate officials had put up the note along with the file and she has gone through all these materials and admitted that accused was not trapped and there was no trap mahazar. She has denied that without following procedures she has mechanically accorded sanction to prosecute the accused.
10. Ex.P.13 prosecution sanction order show that requisition was given by ADGP, Karnataka Lokayukta seeking sanction to prosecute the accused and after considering all the materials, sanction has been accorded to prosecute the accused. Since accused is Assistant Sub-Inspector, the PW.4 Superintendent of Police is competent authority to accord sanction to prosecute the accused. Accordingly, PW.4 has accorded sanction. The documents referred in the order which are the charge sheet documents show that there was prima- facie case against the accused and on the basis of same documents and materials, this court has taken cognizance and framed the charge. Therefore, sanction accorded by PW.4 is by proper application of mind. Accordingly, Point No.1 is answered in the Affirmative.
7 Spl.C.No.347/201511. Point No.2 : Case of the prosecution is that, one Siddaraju given complaint against complainant P.Ramesh in Civil Rights Enforcement Directorate and regarding that, complainant was called by accused and he appeared and gave statement and thereafter, accused repeatedly contacted the complainant over mobile and demanded bribe amount to close the said complaint of Siddaraju. According to the prosecution after giving complaint and after making arrangements for trap, the trap team went to the office of accused wherein attempted trap has failed. As per the prosecution case, there was clear demand of bribe by accused which is also an offence under Sec.7 of Prevention of Corruption Act.
12. In support of prosecution case, PWs 1 to 7 are examined. PW.2 is complainant. PWs 1 and 5 are panch witnesses and were members of the trap team. PW.3 is a witness for taking sample voice of accused. PW.4 is the prosecution sanctioning authority. PWs 6 and 7 are Investigating Officers.
13. PW.2, P.Ramesh-complainant in his chief- examination has stated the complaint averments. He has stated that accused called him by phone and demanded bribe amount and she also called his wife and demanded Rs.5,000/- and when he expressed his inability she has asked him to bring 8 Spl.C.No.347/2015 Rs.3,000/-. He has stated that he gave complaint and handed over the memory card to the police in which the conversation with accused was recorded and it was transmitted into CD by the Lokayukta police. He has also stated about the Investigating Officer securing PW.1 and PW.5 as panch witnesses and has also stated about the pre-trap procedure followed in the office of PW.7. Producing the amount of Rs.3,000/- noting down the numbers of the currency notes, applying phenolphthalein powder on the notes, then PW.1 verifying the notes again and keeping it in left side shirt pocket of complainant and also about the instructions given to complainant and also to PWs 1 and 5 to accompanying the complainant are also stated by the witness. He has also stated about video-graphing of pre-trap proceedings and about the mahazar drawn. He has also stated that button camera and also voice recorder were given to him and he was instructed to switch on the same while meeting the accused. The witness has also stated that after pre-trap proceedings, they proceeded to the office of the accused and he went to her office which is in the second floor and PWs 1 and 5 followed him. PW.2 has stated that when he went to the office of accused she was not there and when he contacted her by mobile, she told that she is near tea stall and asked him to come there and when he 9 Spl.C.No.347/2015 contacted Investigating Officer, he asked him to stay there and later accused came. Witness has also stated that at around 5.00 to 5.30 p.m. when he offered amount, she asked him to stay in the ground floor and he came to ground floor and as accused not came, he called her again and she told that she will send a person by name Viji or Viki and asked him to handover the amount. The witness has stated that later Viji or Viki came and when he was about to give amount, he refused to receive the amount and went back and he talked to Lokayukta Police Inspector and then came and informed that he is not going to accept the amount and asked him to pay to accused. Witness has also stated that thereafter accused called him enquired as to why he brought Lokayukta police. He has stated that thereafter they returned and return mahazar was drawn as per Ex.P.6. He has also stated about transmitting of the conversation with accused into a CD and also transcribing the contents of the CD into paper as per Exs.P.3 to P.5. He has stated that thereafter accused has not made any demand.
14. In his cross-examination, PW2 has denied the suggestion that he was running chit business and he suffered loss in that business. He has admitted that complaint was given by Siddaraju in Rajagopalanagara Police Station and he has admitted that himself and his wife have given statement 10 Spl.C.No.347/2015 before C.R.E. Cell and the matter was pending before the accused. He has stated that immediately within two hours of giving statement, accused called him and he has not recorded the conversation, but on the same day in the evening he called the accused and at that time the conversation is recorded by him. He has stated that he had no difficulty in giving complaint immediately and denied that accused for herself or on behalf of others has never demanded any money from him. He has stated that accused called him about 10 times and he has recorded all the conversations and he has given recorded memory card to the Lokayukta police and he has not converted it to CD. He has denied that accused has never demanded any bribe. He has admitted that Smt. Jyothi, President of National Federation of Women in India was also with him at the time of giving the complaint to the Lokayukta police and she has guided him to give complaint and even his wife was present at the time of pre-trap panchanama and they have not signed the same. He has stated that when the accused came to the chamber, she asked him to wait near the STD booth in the ground floor and admitted that she has not asked money at that time. He has stated that he waited, but accused has not come and he received a phone call from accused and she asked him to talk to Viji or Viki. He has admitted that Viji or Viki has 11 Spl.C.No.347/2015 not uttered any word of demanding the amount and he has admitted that he has not received the amount and stated that he will not receive it. The witness has stated that Viji or Viki had seen the Inspector and he was knowing him and as such he has refused to receive the amount. He has admitted that the accused has not come near the STD booth.
15. PW 1 Ramaiah and PW.5 Smt. Shilpa Belgaum are the panch witnesses. Both these witnesses have stated in their evidence that as per the instructions of higher officers they went to Lokayukta office and met the Lokayukta Inspector, PW.7 and he asked them to act as panch witnesses in a trap case. The witnesses have stated about the pre-trap proceedings followed in the office of PW.7 and PW.1 keeping the tainted currency notes after smearing the phenolphthalein powder to the shirt pocket of complainant and his hand wash and seizure of the solution which is turned to pink colour and also stated about CD's and transcription of the CD's on sheet of paper as mentioned in the pre-trap mahazar and also stated about the pre-trap mahazar drawn as per Ex.P.2. They have also stated about the instructions given by PW.7 to the complainant to give signal after giving the tainted notes to accused on demand by wiping his head. PW.1 has stated that after the pre-trap proceedings, complainant has contacted the 12 Spl.C.No.347/2015 accused by phone and she asked him to come to her office and they all proceeded to the office of accused and after stopping vehicle at distance PW.5 and complainant went to meet accused and PW.1 followed them. PW.1 has stated that they went to office of accused and she told that she is busy and will send her assistant and one person namely Viji or Viki came out and on seeing them he went inside to seek instructions from accused and after coming out he told that he is not going to receive the amount and when complainant contacted accused, she told that she is busy, she cannot come and after waiting for half an hour all of them returned to Lokayukta office and mahazar as per Ex.P.6 was prepared and at the time of drawing mahazar accused had conversation with complainant and said conversation was transcripted in the two different sheets. In his cross-examination PW.1 has stated that complainant had given a CD and he has not produced any memory card. He has stated that the conversation was continuously recorded without any breaks. He has stated that he did not hear the conversation held between PW.2 and accused and admitted that Viki has not received money from anyone. He has admitted that he has not dictated the contents of Ex.P.6.
16. PW.5 has stated that they left Lokayukta office in a Government vehicle and proceeded towards Cauvery Bhavan 13 Spl.C.No.347/2015 and vehicle was parked in the parking area and instructions were reminded and complainant went to CRE Cell and herself and PW.1 followed the complainant from distance and they sat on the bench outside the said office. She has stated that complainant went inside the office and talked to accused and then came out. PW.5 has stated that accused enquired them as to whom they want to meet and she told that she is waiting for a friend and thereafter complainant went down and they also followed him. She has stated that complainant has informed that he talked to Smt. Chandrakala who had demanded bribe from him and she asked him to pay the bribe amount to a boy by name Viki who will come down. She has stated that they were waiting for that boy and he came there and talked to the complainant and after seeing the Lokayukta Police Inspector Anil Kumar and he wished him and then talked to the complainant and then, left the place. She has stated that complainant informed that Viki has told that he will not receive the amount and Chandrakala will receive the amount and she will call him. She has stated that they waited till 5.30 p.m. in the ground floor and complainant came to them and told that Chandrakala had called him and told that though she wanted to help him, he has brought the Lokayukta police to trap her. As the trap had failed, they came back to Lokayukta 14 Spl.C.No.347/2015 office. She also stated about transmission of the conversation into CD and also transcription of the same on sheet of papers and also identified the accused before the court. She has stated that she does not know the name of accused. In cross- examination, PW.5 has stated that when she met Lokayukta Police Inspector, a mobile conversation was played before her. She has stated that along with the complainant, his wife and also another lady social worker was present before the Lokayukta Police Inspector. She has stated that complainant has not produced C.D, but the Lokayukta police have transmitted the recordings to the C.D. She has stated that Lokayukta police have not seized the mobile or any chip and admitted that herself and PW.1 were sitting on the bench outside the office of accused and not heard the conversation between complainant and accused. She has stated that she has seen the accused only when she came out and enquired them as to whom they want to meet. She has stated that she came to know about the boy Viki only on the say of the complainant.
17. PW.3 Smt. Vidyashree has stated that on 26.06.2014 as per the instructions of her higher officer, she and CW.6 Jayaram met Lokayukta Police Inspector Anil Kumar and accused was also present there and Lokayukta Police 15 Spl.C.No.347/2015 Inspector asked them to be a witness to the recording of the voice of accused and he gave some writing to accused and asked her to read it six times and accused read the same and her voice was recorded by the digital voice recorder and then it was transmitted to C.D through computer and they have identified the voice and recordings in the voice recorder was also transcribed on paper and signature was taken and it was transmitted to C.D and has been seized and mahazar was drawn as per Ex.P.10 and seal was given to her and she has produced the same as MO-1. In her cross-examination, she has stated that she has not seen the digital voice recorder mentioned in pre-trap mahazar Ex.P.2 and she has not given dictation to prepare the transcription script and has admitted that when Investigating Officer was enquiring the accused, she told that she has not demanded any amount from the complainant for herself and for any other person and has also given written explanation.
18. PW.7 Dr. Anil Kumar P.G. is the Investigating Office. He has stated about registering of the complaint, securing panch witnesses and has stated about other activities of pre- trap and drawing pre-trap mahazar and also about the instructions given to the complainant and also PWs 1 and 5. He has also stated about complainant producing a C.D at the 16 Spl.C.No.347/2015 time of giving complaint and playing the C.D. before the panch witnesses and transcribing the recordings in a sheet of paper as per Exs.P.3 to P.5 and making copy of the CD and then seizing the original C.D. and has also stated about video-graphing of pre-trap proceedings and then transmitting the same to C.D. The witness has also stated that they proceeded towards the office of accused in Cauvery Bhavan and he reminded the instructions given to the complainant and complainant and PW.5 went to the office of accused which is in the second floor and they were waiting in the ground floor till 5.10 p.m. and no information received and then he called back the complainant and complainant informed him that accused asked him to come near the xerox shop, and he went there, but accused did not come and receive the amount and when he contacted the accused again by phone at 4.45 p.m. she told him to give the amount to one Viji who will be sent by her and after some time, Viji came and talked to him about the amount to be paid to accused and then when the complainant told that it is with regard to the case, he has refused to receive the amount. The witness has also stated that complainant informed that at 5.02 p.m. when he called the accused, she told that she is busy and she would call on the next day. He has stated that then they came back to Lokayukta office and while they were boarding 17 Spl.C.No.347/2015 the vehicle at about 5.24 p.m. complainant received a phone call from the accused and the entire conversation is recorded in the mobile phone and after coming back to Lokayukta office, the recordings of the phone call was transmitted to C.D. in which accused had told that she wanted to help him, but he had brought Lokayukta police with him. He has stated that return mahazar was prepared as per Ex.P.6 and trap was postponed to the next day. He has stated that on next day complainant and panch witnesses came to their office, but as no information was received from the accused, he has dropped the idea of trap and tainted notes were returned to complainant. He has stated that thereafter by giving notice to accused and by drawing mahazar, sample voice of accused was taken and then it was transmitted to C.D. and transcribed on the paper. He has also stated about further investigation done by him and also identified the material objects. He has also stated about 65-B certificate submitted by him as per Ex.P.23. In his cross-examination, PW7 has stated that complainant has not given reasons for the delay and he has not enquired about the delay. He has stated that complainant had brought a recorded CD stating that he recorded conversation in the mobile and then transmitted to CD. He has stated that he has seen that mobile but has not seized the mobile. He has stated 18 Spl.C.No.347/2015 that at the time of registering the complaint, he has not taken any steps to ascertain and identify the voice of accused in the C.D. He has stated that he has not verified as to whether the accused had the power to close the complaint filed against the complainant in the CRE cell. He has admitted that digital voice recorder given to complainant was with him till they returned to Lokayukta office. He has admitted that in the voice recorder the conversation between complainant and accused and conversation between the complainant and Viji or Vikki with regard to the amount is not recorded. He has admitted that he is not administrator of the computer section in the Lokayukta office and admitted that the CDs mentioned in Ex.P.23 were burnt in Lokayukta computer section. He has admitted that he has not mentioned the serial number and make of the C.D. and also number of the HCL computer in Ex.P.23.
19. PW.6 Prasanna V.Raju is Police Inspector, Dy.S.P. Karnataka Lokayukta, City Division, Bengaluru who conducted further investigation and has filed the charge sheet. He has stated about receiving prosecution sanction order and Exs.P.14, 15 and 16. In cross-examination he has denied that without looking to the investigation papers properly, he has filed the charge sheet.
19 Spl.C.No.347/201520. For the prosecution documents are marked as Exs.P.1 to P.23. Ex.P.9 is a complaint and Ex.P.17 is the FIR. The sheet containing number of currency notes is marked as Ex.P.1. Pre-trap mahazar is marked as Ex.P.2. The transcriptions of the conversation recorded in the C.D and produced by the complainant are marked as Exs.P.3 to P.5. Return mahazar is marked as Ex.P.6. The conversation at the time of trap is marked as Ex.P.7 and transcription of the recordings in the mobile on receiving phone call from the accused while returning on 30.10.2013 is marked as Ex.P.8. Ex.P.10 is sample voice recording mahazar and Ex.P.11 is written explanation given by accused. Ex.P.12 is acknowledgment given by PW.3. Ex.P.13 is the prosecution sanction order. The copy of the statement along with a letter received from CRE Cell is marked as Ex.P.14. Copy of the attendance register is marked as Ex.P.15. Sketch of spot of the incident is at Ex.P.16. Service details of accused is marked as Ex.P.18 and the report given on identifying the voice is marked as Ex.P.19. The file pertaining to the case of complainant is marked as Ex.P.20. The report of Forensic Science Laboratory regarding the voice in the CD's is marked as Ex.P.21. Ex.P.23 is the certificate under Sec.65-B of Indian Evidence Act. The call details are marked as Ex.P.22. The metal seal is marked as 20 Spl.C.No.347/2015 MO-1. The bottles containing the sample solution and solution taken at the time of pre-trap is marked as MOs 2 and 3. CD's are marked as MO-4 to 8. Covers are marked as MO-4 (a) to MO-8(a).
21. The charge sheet is filed against accused for the offence under Sec.7 of Prevention of Corruption Act. As per prosecution case, after making arrangement for the trap and after following pre-trap procedures, the trap team went to the office of accused, but the trap was not successful. Therefore, the acceptance and recovery of bribe amount from the accused is not there in the present case. Under Sec.7 of Prevention of Corruption Act, public servant, agreeing to or attempting to obtain illegal gratification would also be committing the offence. Therefore, as there is no acceptance and recovery of the amount in the present case, accused agreeing to accept illegal gratification or attempting to obtain illegal gratification is to be proved by the prosecution. Since offence alleged is under Sec. 7 of Prevention of Corruption Act, such demand of accused for illegal gratification or his attempt to obtain such illegal gratification must be for doing some official act or for doing any official favour to the complainant.
22. In the complaint and also in the evidence of PW.2 it has been clearly stated that Siddaraju has given complaint 21 Spl.C.No.347/2015 against complainant in Civil Rights Enforcement Directorate and PW.2 was called and had given statement before the accused. Even in cross-examination of PW.1 is elicited that PW.2 and his wife have appeared before the accused and have given statement. Though, in the cross-examination, PW.7 Investigating Officer has stated that he has not verified whether the accused was having any power to close the complaint filed in CRE Cell, against the complainant, evidence of PW.2 and also the documents produced by the prosecution at Ex.P.14 show that the complaint given by Siddaraju was pending before the Civil Rights Enforcement Directorate and it was the accused before whom complainant had given statement and accused was dealing with the said case. Therefore, it is clear that the complaint filed against complainant by Siddaraju was pending consideration before accused who was working as Assistant Sub-Inspector in CRE Cell. The case of the prosecution is that for closing this complaint, immediately after complainant giving statement, accused called the complainant by phone and demanded amount and she has asked him to give Rs.5,000/- to the Higher officers and when contacted her again she reduced the amount to Rs.3,000/- and thereafter even she has made call to the wife of the complainant and on such phone calls she has made 22 Spl.C.No.347/2015 demand for the bribe amount. Pendency of work of accused is established in view of the evidence stated above.
23. In Ex.P.9 complaint and also in the evidence of PW.2 complainant, the demand made by accused for bribe over phone has been stated. The mobile number of accused and that of the complainant and also wife of complainant in which conversation has been made is mentioned in Ex.P.9 complaint. Even the call details are marked for the prosecution as Ex.P.22. Ex.P.22 does not bear any seal. As per the prosecution case, accused on 07.10.2013 and even thereafter has made phone call to the complainant and even complainant contacted over phone and in such conversation, bribe has been demanded by the accused and the conversation is recorded by complainant. In the complaint it is stated that while giving complaint, he has produced CD containing conversations which was recorded in the mobile. Therefore, as per the complaint, the complainant has produced the CD. PW.7 has also stated about the complainant producing the CD containing the conversation. However, the complainant PW.2 in his evidence has stated that he has produced memory card and in the Lokayukta office and they have transmitted the same to the CD. As admitted by PW.7 the mobile or the mobile chip in which the alleged conversations are recorded is not seized by him. As per Ex.P.9 23 Spl.C.No.347/2015 complaint and evidence of PWs 1, 5 and 7, CD was produced and it was played before PWs 1 and 5. PW.2 in his cross- examination has denied that he has produced the CD and has stated that almost all the conversations in phone call has been recorded and given to the Lokayukta police and he has given memory card and they converted it to CD. Therefore, there is confusion with regard to the instrument which was produced before the Lokayukta police at the time of giving complaint as admitted by PW.7. The mobile or the chip in which the recording has been made by the complainant is not seized and not produced before the court. Whether the complainant produced the CD or memory card or Lokayukta Police have transmitted the conversation recorded in the memory card to the CD is not clear. The fact remains that the original devise in which the recording has been made is not before the court.
24. As per the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5695 (Anwar 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 Evidence Act. In the present case PW.7 has produced certificate under Sec.65-B of the Indian 24 Spl.C.No.347/2015 Evidence Act, which is marked as Ex.P.23. This certificate given by PW.7 would not be valid for the CD produced by the complainant. Since the conversation recorded in the mobile is transmitted to C.D and then produced before the Lokayukta police as mentioned in Ex.P.9 and stated by PW.7, it is the complainant who have to comply Sec.65-B of the Indian Evidence Act. Since the CD is not burnt by PW.7 and transmission from the mobile recording into the CD is not made by PW.7 in the computer of the Lokayukta computer section in respect of this CD which is seized as article No.1 and marked as MO-4, PW.7 is not competent to give the certificate under Sec.65-B of Indian Evidence Act. The complainant has not given any such certificate and has also not given any details as to where, when and how he has transmitted recordings into the CD. On the other hand, he has stated that he had produced the memory card. Admittedly, PW.7 has not seized the mobile or the memory card containing these conversations. Therefore, PW.7 is not competent to issue certificate under Sec. 65-B of Indian Evidence Act in respect of MO-4 CD and this conversation recorded in the C.D produced by the complainant at the time of giving complaint is not admissible in evidence. In view of the decision in Anwar Vs P.K. Basheer even in respect of other CD's, PW.7 has given certificate under Sec. 65- 25 Spl.C.No.347/2015 B of Indian Evidence Act. PW.7 in his cross-examination has admitted that he has not mentioned the serial number and make of the CD and serial number of the HCL computer from which the CD was burnt and not mentioned the make of the CD Writer in the said computer and admitted that the CD mentioned in Ex.P.23 were burnt in Lokayukta computer section and he is not the administrator of the said section. Therefore, this certificate which is vague one and does not contain details of the computer in which the CD was burnt would not be helpful to the prosecution. As regards Part-A mentioned in Ex.P.23 which is with regard to the CD produced by the complainant, the certificate cannot be considered as the recordings in the mobile was not transmitted into the C.D in the computer section of the Lokayukta office or under supervision of PW.7. Therefore, the C.D MO-4 is not helpful to the prosecution case. Apart from this, in the pre-trap mahazar, Ex.P.2 it is mentioned that C.D. produced by the complainant has been played and it contains the conversation had between the complainant and accused. In Ex.P.2 pre-trap mahazar, the conversation dated 29.10.2013 has been mentioned. However, the conversation in the C.D. MO-4 is stated to have been transcribed to computer as per Ex.P.3, P.4 and P.5. Ex.P.5 transcription of the conversation dated 29.10.2013 about which 26 Spl.C.No.347/2015 there is reference in Ex.P.2. However, the conversation mentioned in Ex.P.3 & P.4 which are dated 07.10.2013 and 28.10.2013, does not find place in Ex.P.2 pre-trap mahazar. On looking to all these aspects, MO-4 CD and the transcription of the conversation recorded in this MO-4 produced at Ex.P.3 to P.5 are not helpful to the prosecution to prove the alleged demand of bribe amount by accused before giving complaint to the Lokayukta police.
25. In the absence of these recorded conversations the entire case of demand of bribe by accused is to be proved by evidence of PW.2 alone. PW.2 has stated in his evidence about the demand of bribe amount by accused. In his cross- examination there are several suggestions put to regarding chit transaction and he has stated that he owed Rs.15,000/- to Siddaraju and has denied his liability to pay any amount to any person in any chit transaction. PW.2 has stated that on 07.10.2013 accused first demanded bribe. The present complaint is given on 30.10.2013. In the entire evidence of PW.2 the reason for the delay in lodging complaint is not mentioned. Though the accused has demanded bribe amount from the complainant on 07.10.2013, the complaint is given on 30.10.2013 and long delay is not explained in the evidence of PW.1. Moreover, in the entire period from 07.10.2013 to 27 Spl.C.No.347/2015 30.10.2013 the demand of bribe made by accused to the complainant is only by phone calls. It is not the case of the complainant that after receiving the phone call he met her personally and then again she demanded bribe amount. The entire evidence and complaint averments show that entire demand of bribe by the accused is through phone calls made to complainant and his wife. Though the call details are produced at Ex.P.22, there is no material before the court to show that these phone numbers mentioned in the call details and in the complaint, belongs to complainant, accused and the wife of complainant. There was no demand of bribe by accused face to face with the complainant even as per the evidence of the complainant. There is no such evidence before the court to show that accused has called the complainant and his wife and has demanded the bribe amount, as CD and transcription are not admissible. It is not the case of the complainant that he has personally met the accused and at that time she demanded the bribe amount. Therefore, the prosecution has failed to prove that accused demanded the bribe amount prior to giving complaint on 30/10/2013.
26. As per the prosecution case, after making all arrangements, the trap team went to building in which office of the accused is situated and along with complainant, PWs 1 and 28 Spl.C.No.347/2015 5 also went to the office of accused. PW.2 has stated that accused was not there in the office and then he contacted her by phone and she told that she will send one person by name Viji or Vikki, but he has not received the amount. PWs 1 and 5 who have followed the complainant PW.2, have not heard the conversation between the complainant and accused. PW.5 has admitted that she has seen accused only when she came out and enquired her and she came to know about conversation of complainant with accused only from complainant. PW.2 in his cross-examination has clearly admitted that when accused came to her chamber, she asked him to wait near STD booth in the ground floor and she has not asked money at that time. It is stated by PW.2 that Viji or Vikki had not uttered any word of demanding the amount. Therefore, even at the time of alleged attempt of trap, there is no specific demand of bribe amount by accused, as per evidence of PW.2. PWs 1 and 5 have not heard any conversation between complainant and accused. Therefore, even demand of bribe money by accused at the time of attempted trap is also not proved in the present case. Apart from this, though there was phone calls exchanged between the complainant and accused, at the time of attempted trap and the conversations recorded in the mobile phone is transmitted to CD and transcribed through computer 29 Spl.C.No.347/2015 as per Ex.P.7 and 8, in these transcriptions there is no such demand of bribe by accused. Even if the transcriptions at Exs.P.7 and 8 are considered as admissible inspite of defective certificate under Sec.65-B of Indian Evidence Act, Exs. P.7 and 8 does not show that there was a demand for bribe by accused. Apart from this, PW.7 Investigating Officer in his cross- examination has admitted that digital voice recorder given to the complainant was with him till they returned to Lokayukta office. He has admitted that in the voice recorder the conversation between complainant and accused and conversation between complainant and Viji or Vikki with regard to the amount is not recorded. Though the voice recorder was with complainant, these conversations at Exs.P.7 & 8 are not recorded in the voice recorder for the best reasons known to prosecution.
27. On looking to all these aspects, either before filing of the complaint or subsequent to filing of the complaint, the demand of bribe amount by accused to close the complaint filed against the complainant by Siddaraju in CRE cell is not proved by the prosecution beyond all reasonable doubt. Admittedly, the trap has failed and accused has not received the amount from the complainant. Therefore, the happenings at the time of attempted trap need not be considered except to 30 Spl.C.No.347/2015 ascertain whether there was any demand for bribe amount by accused. As stated above, even at the time of attempted trap, any demand for bribe amount made by accused is not proved in this case. Therefore, prosecution has failed to prove that accused has either demanded or agreed to accept or attempted to obtain any illegal gratification from complainant to do some official act or to do some official favour to complainant and thereby committed offence under Sec.7 of Prevention of Corruption Act. Therefore, prosecution has utterly failed to prove the guilt of accused. Hence, accused is entitled to be acquitted. Accordingly, Point No.2 is answered in the negative.
28 Point No.3: For the discussion and findings on Point Nos. 1 & 2, 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 her for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and her surety stands cancelled.31 Spl.C.No.347/2015
MO-1 Metal seal is ordered to be returned to the Karnataka Lokayukta Police after the expiry of appeal period.
M.Os.2 to 8 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 1st day of March 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 Ramaiah PW.2 P.Ramesh PW.3 Smt. Vidyashree PW.4 Smt. Divya V.Gopinath PW.5 Smt. Shilpa Belgaum PW.6 Prasanna V.Raju PW.7 Dr.Anil Kumar P.G.
List of documents exhibited for the prosecution:
Ex.P.1 Sheet containing serial number of notes P.1 (a) Signature of PW.1 P.1 (b) Signature of PW.5 P.1 (c) Signature of PW.7 Ex.P.2 Pre-trap mahazar P.2 (a) to (e) Signature of PW.1 P.2 (f) Signature of PW.2 P.2 (g) Signature of PW.5 P.2 (h) Signature of PW.2 Ex.P.3 Transcription dtd. 7.10.2013 32 Spl.C.No.347/2015 P.3 (a) & (b) Signature of PW.1 P.3 (c) & (d) Signature of PW.2 P.3 (e) Signature of PW.5 Ex.P.4 Transcription dtd. 28.10.2013 P.4 (a) & (b) Signature of PW.1 P.4 (c) & (d) Signature of PW.2 P.4 (c) Signature of PW.5 Ex.P.5 Transcription dtd. 29.10.2013 P.5 (a) & (b) Signature of PW.1 P.5 (c) & (d) Signature of PW.2 P.5 (e) Signature of PW.5 Ex.P.6 Returned Mahazar P.6(a)to (d) Signature of PW.1 P.6 (e) Signature of PW.2 P.6 (f) Signature of PW.5 P.6 (g) Signature of PW.2 Ex.P.7 & 8 Transcription on two different sheets P.7(a)&P.8(a) Signature of PW.1 P.7(b)&P.8(b) Signature of PW.5 Ex.P.9 Complaint P.9 (a) Signature of PW.2 P.9 (b) Signature of PW.7 Ex.P.10 Voice recording mahazar P.10 (a) Signature of PW.3 P.10 (b) Signature of PW.7 Ex.P.11 Written explanation of accused P.11 (a) Signature of PW.3 P.11 (b) Signature of PW.7 Ex.P.12 Acknowledgment and direction P.12 (a) Signature of PW.3 Ex.P.13 Prosecution sanction order P.13 (a) Signature of PW.4 Ex.P.14 Attested copies of three notice Ex.P.15 Attendance register attested copy Ex.P.16 Sketch Ex.P.17 FIR Ex.P.18 Service particulars of accused P.18 (a) Signature of PW.7 Ex.P.19 Report of Dy.SP, DCRE.
33 Spl.C.No.347/2015
Ex.P.20 Details of case pending before DCRE
P.20 (a) Signature of PW.7
Ex.P.21 FSL report
P.21 (a) Signature of PW.7
Ex.P.22 Call details
Ex.P.23 Under Sec.65-B Evidence Act
P.23 (a) Signature of PW.7
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
- Nil -
Material Objects marked by Prosecution :
MO-1 Metal seal
MO-2 Bottle Article No.2
MO-3 Bottle Article No.5
MO-4 CD
MO-4 (a) Cover
MO-5 CD Article No.4
MO-5 (a) Cover
MO-6 CD Article No.5
MO-6 (a) Cover
MO-7 CD Article No.6
MO-7 (a) Cover
MO-8 CD Article No.6A
MO-8 (a) Cover
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
34 Spl.C.No.347/2015
Orders pronounced in the open
Court vide separate Judgment :
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 offence punishable
under Section 7 of the
Prevention of Corruption Act,
1988.
The bail bond executed by
accused and his surety stands
cancelled.
MO-1 Metal seal is ordered to
be returned to the Karnataka
Lokayukta Police after the
expiry of appeal period.
M.Os.2 to 8 are ordered to be
destroyed after the expiry of
appeal period, as are
worthless.
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.