Bangalore District Court
The State Of Karnataka vs Chowdareddy on 27 April, 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 27th day of April 2018
Spl. C.C.No.340/2010
COMPLAINANT The State of Karnataka,
By Police Inspector, Karnataka
Lokayuktha Police Wing, City
Division, Bengaluru.
(Rep. by Spl.Public Prosecutor)
-v-
ACCUSED 1. Chowdareddy, P.C.No.4125,
Varthur Police station,
Bengaluru.
2. Aralanagowda,
P.C.No.10040, Varthur Police
Station, Bengaluru
(By Sri C.G.Sundar, Advocate
for A-1 & 2)
3. M.P. Maheshwaraiah,
P.C.No.6501, Varthur
Police Station, Bengaluru.
(Discharged as per orders
dated 20.7.2015)
2 Spl.C.C.No.340/2010
1. Nature of Offence Offence punishable under Sections
7, 13(1) (d) r/w 13 (2) of the
Prevention of Corruption Act, 1988
& Sections 201 & 511 of IPC.
2. Date of
Commission 11.08.2010
of offence
3. Date of First
Information Report 11.08.2010
4. Date of arrest A-1 on 11.08.2010
A-2 on 13.08.2010
A-3 on 13.08.2010
5.Date of
commencement of 23.03.2017
recording of
evidence
6. Date of 13.03.2018
closing of evidence
7. Date of
pronouncement of 27.04.2018
Judgment
The accused No.1 & 2 are
8. Result of the case acquitted under Sec.235(1) of
Cr.P.C. of the offence punishable
under Sections 7, 13(1) (d) r/w
13(2) of Prevention of Corruption
Act, 1988 and Sections 201 & 511
of IPC.
3 Spl.C.C.No.340/2010
JUDGMENT
The accused No.1 to 3 are charge sheeted for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 and Sections 201 & 511 of IPC.
2. The prosecution case is that, CW1-Eshwar being a native of Gorakhpura District, Uttar Pradesh State, was working as a Painter in Bangalore, for the last 8 years. CW9-Rajesh, CW10-Brindesh, CW11-Santosh & CW12-Paras also being natives of Uttar Pradesh, were doing building work in Bangalore and residing in the same area. CWs-1 & 9 to 12 was acquainted with each other. On 4.8.2010, CW-1 & 9 to 12 had quarreled among themselves. Thereafter, they had compromised the matter. On 7.8.2010, accused No.1 through his mobile number 9901372761 called CW-1 and told him that, there was complaint against him in Varthur Police station in connection with injury caused to CW-9 to 12 and asked to meet him nearby Vijaya Bank. He informed that he is Vijay-Police Constable, Varthur Police Station. On the same day, when he met the accused No.1, he told him that a criminal case for attempt to murder u/s 307 of IPC, is registered against him in Varthur Police Station on the basis of the complaint of Rajesh and threatened to put him behind bar. CW-1 told accused No.1 that they had compromised the matter and not to give him any 4 Spl.C.C.No.340/2010 trouble. Accused No.1 asked him to pay Rs.10,000/- to close the case. CW-1 returned home by asking two days time. On the same day, accused No.1 called CW-1 and handed over the phone to Mahesh, who also threatened him to give bribe amount, otherwise, he would be put behind bars. When Mr.Ramu-the owner of the building spoke to accused No.1 & Mahesh, they told him to settle the matter by giving money. On 9.8.2010 at about 5.00 PM, accused No.1 made a phone call to CW-1 and demanded money by threatening to put him behind bars. On 10.8.2010, when CW-1 met the accused No.1 nearby Bakery situated in front of Police Station, Mr.Satish who was in Police uniform & Mr.Vijay who was in civil dress, demanded illegal gratification of Rs.5000/-. CW-1 requested them to give one day time for arranging money.
3. On 11.8.2010, CW-1 approached CW23- Ravishankar, Police Inspector, Karnataka Lokayuktha, and orally informed the matter in Hindi language, who prepared the complaint as per Ex.P1 by translating in Kannada language and obtained his signature. CW-1 has produced the conversation recorded in his mobile phone along with the complaint. CW23 arranged for the trap. He secured CW2-Manjunath Pujar & CW3-B.L.Ramamurthy- the employees of KPTCL, to act as witnesses to the trap. CW-1 produced Rs.5000/- (3 currency notes denomination of Rs.1000/- and 4 currency notes denomination of Rs.500/-). The serial number of the currency 5 Spl.C.C.No.340/2010 notes was recorded as per Ex.P4. The currency notes were smeared with phenolphthalein powder. CW3-Ramamaruty after verifying & counting the tainted currency notes placed it in the left side pant pocket of CW-1. Both the hand fingers were washed in sodium carbonate solution. The solution becomes pink colour. Before that, CW23 has demonstrated the chemical reaction when phenolphthalein powder comes into contact with sodium carbonate solution. Button Camera was given to CW-1 with an instruction to switch it on when he was going to meet the accused to give money and to record the conversation/scene. He was instructed to go alone in the bike to the place suggested by the accused and to give money only on demand and to give a phone call if the accused received the amount. CW2-Manjunath Pujar was instructed to observe the things from some distance and to give signal by wiping his hair if the accused received the amount. Entrustment Mahazar was prepared as per Ex.P2 and obtained the signature of the witnesses. Entire Pre-Trap Mahazar was covered by Video and contents of it were converted to CD.
4. On the same day, at about 5.00 PM, CW23 along with his team, two panch witnesses left for Varthur Police station in the Maruti Omni car. On the way to Varthur Police Station, when complainant made a phone call to accused, he was told to come nearby Honeywell Bakery in front of Varthur Police Station. CW20-Ramu also came to Varthur Police Station, 6 Spl.C.C.No.340/2010 in his car. Complainant came to Varthur Police Station in his motorbike. CW3-Ramamurthy, Lokayuktha staff-Srinivas & CW23 were sitting in the car of Ramu. Dayananda & Chandru- the Lokayuktha staff were watching by sitting in the motorbike of the complainant. CW2-Manjunath Pujar & Lokayuktha staff- Ravi, were asked to keep a watch on the complainant & the accused. The complainant went nearby Honeywell Bakery. The accused No.1 came in a Cheetah bike, spoke to the complainant and took him in his Bike towards Gunjur Road. Dayananda & Chandru-the Lokayuktha staff followed the Cheetah Bike. At about 6.05 PM, the complainant made a phone call to CW23 and informed that accused received the amount and they are on the way back to Varthur Police Station. When the accused No.1 was about to park Cheetah bike, Lokayuktha Police went nearby him. By that time, accused No.1 had a doubt and ran away from the place by leaving the Cheetah bike. Lokayuktha Police chased him for about 400 meters. The accused No.1 fell in the ditch in front of the house of Ramakrishna. By that time, the Lokayuktha Police surrounded and apprehended him. On being questioned, he disclosed his name as Chowdareddy- Police Constable of Varthur Police Station. He was in Police uniform. Accused No.1 showed the place where he kept the money. The currency notes of Rs.5000/-(MO1) was recovered from the ditch and tallied with currency notes sheet. Both hand fingers of accused No.1 were washed separately in sodium carbonate solution. The said solution becomes black colour. The accused 7 Spl.C.C.No.340/2010 No.1 was brought to Varthur Police Station, wherein Mahadevaiah-PSI & Marappa-ASI had identified the accused No.1 as Chowareddy- P.C.No.4125 attached to Varthur Police Station. The name plate attached to the uniform shirt of the accused No.1 displayed his name as 'Chowdareddy'. The complainant identified the accused No.1, that he is the person who met him nearby Honeywell Bakery and falsely introduced himself as 'Vijay'. On being questioned about another person, accused No.1 informed CW23 that he is Aralanagowda- Police Constable attached to Varthur Police Station. The uniform dress of accused No.1 was seized by making alternate arrangement. By following the due procedure, the accused No.1 was arrested and he was brought to Lokayuktha Police Station along with seized articles.
5. The Button Camera given to the complainant at the time of trap was played in the presence of the witnesses and Girish-PSI of Varthur Police Station, contents of it were converted to DVD and important scene/conversation was transcript into writing. The CD containing the conversation recorded in the mobile phone which was produced along with the complaint was played in the presence of Girish-PSI of Varthur Police Station, who in turn identified the voice of accused No.1 & Mr.Aralanagowda and submitted a Report. Mr.Girish-PSI of Varthur Police Station produced attested copy of SHD, Duty Roster & NCR. Accused No.1 gave his statement 8 Spl.C.C.No.340/2010 in writing. Entire trap proceedings were covered by video and contents of it were converted to DVD. All the seized articles were sealed with Metal Seal by using English letter 'F'. Metal Seal was handed over to CW3-Ramamurthy and obtained an acknowledgment. Trap Mahazar was prepared as per Ex.P3 and obtained the signature of the witnesses. On 13.8.2010, the accused No.2-Aralanagowda voluntarily appeared before CW23, who in turn arrested him after enquiry. Complainant has identified the accused No.2. On the same day, during the evening hours, CW23 has arrested the accused No.3. The accused No.2 & 3 gave their statement in writing. The Investigating Officer obtained service particulars of the accused persons as per Ex.P15, Spot Sketch from AEE-PWD as per Ex.P16, Forensic Science Laboratory report as per Ex.P17, Call Details of mobile phone of the complainant & accused No.1. After completion of the investigation, Final report was sent to the Competent Authority seeking sanction to prosecute accused No.1 to 3. After receiving the Sanction Order-Ex.P5 from the Competent Authority, the Investigating Officer has filed the charge sheet before the court against accused No.1 to 3 for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act,1988 and Sections 201 & 511 of IPC.
6. My Predecessor-in-Office took cognizance of the offence and issued process against the accused Nos.1 to 3. In 9 Spl.C.C.No.340/2010 pursuance of the summons, accused No.1 to 3 appeared before the Court and they were enlarged on bail.
7. After hearing on application u/s 227 of Cr.P.C, accused No.3-M.P.Maheshwaraiah was discharged on 20.7.2015 vide separate order.
8. After hearing, the charge was framed against the accused No.1 & 2 for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 and Sections 201 & 511 of IPC. The charges were read over and explained to the accused No.1 & 2. The accused No.1 & 2 pleaded not guilty and claimed to be tried.
9. During the trial, the prosecution has examined in all 5 witnesses as PWs-1 to 5 and got marked 18 documents as Ex- P1 to Ex.P-18 and 11 Material Objects as MO-1 to 11. The accused No.1 & 2 were examined under section 313 of Cr.P.C. for the purpose of enabling them to explain the circumstances existing against them. The accused No.1 & 2 denied all the incriminating evidence available against them. The accused No.1 & 2 have not chosen to lead any defense evidence. I have heard the arguments and perused the records.
10. The learned Counsel for accused No.1 in support of his arguments has placed reliance on the following citations:
10 Spl.C.C.No.340/20101. 2016(1) KCCR 815; R.Srinivasan and another
-v- State by Police Inspector, Lokayuktha, Bangalore.
2. 2014 AIR SCW 5740; M.R.Purushotham -v-
State of Karnataka.
3. 2015 AIR SCW 6764; N.Sunkanna -v- State of Andhra Pradesh.
4. 2016 (1) AKR 181; Dr.S.R.Chowdaiah -v-
State of Karnataka.
5. 2000(4) Crimes 162 (SC); State of Madhya Pradesh -v- J.B.Singh.
6. 19080 Supreme Court Cases (Cri) 159; Suraj Mal -v- State (Delhi Administration)
7. AIR 2015 Supreme Court; Anvar P.K -v-
P.K.Basheer and Ors.
11. 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 No.1 & 2 being public servants working as Police Constables in Varthur Police Station, Bengaluru, demanded and accepted illegal gratification of Rs.5,000/- from the complainant, as a motive or reward for showing an official favour in the matter of not registering criminal case against him, and thereby committed an offence punishable 11 Spl.C.C.No.340/2010 under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 & 2 being public servants, working as Police Constables in Varthur Police Station, Bengaluru, by abusing their position as public servants and by corrupt or illegal means and without public interest, obtained Rs.5,000/-
from the complainant as 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. Whether the prosecution proves beyond all reasonable doubt that, on 11.8.2010 accused No.1 after accepting illegal gratification of Rs.5000/- from CW1 at Thippasandra between 6.20 & 7.05 PM, attempted to cause disappearance of evidence by keeping the said amount in the ditch nearby the house of CW13-Ramakrishna at Varthur, and thereby committed the offence punishable under Sections 201 & 511 of IPC?
4. What order?
12. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: IN THE NEGATIVE
POINT No.4: AS PER FINAL ORDER
for the following:
12 Spl.C.C.No.340/2010
REASONS
13. Point Nos.1 to 3: For the sake of convenience and to avoid repetition of facts, I have taken Points No.1 to 3 together for consideration.
14. The prosecution has examined CW1-Eshwar, as PW1. PW1 is the complainant. PW1 has deposed that, he is the native of Gorakhpur, Uttar Pradesh. In the year 2010, he was residing in Varthur. He was doing painting work. CWs-9 to 12 were also natives of Uttar Pradesh. They were all residing in the same area. In the year 2012, CWs-9 to 12 had quarreled themselves in the state of intoxication, in the matter of wife of CW9. Later, the matter was compromised under his leadership. After some days the Varthur Police made a phone call and informed him that complaint was lodged against him in the Varthur Police Station. On every other day, the different Police officials called and threatened him that they would register a criminal case for attempt to murder of Rajesh. Every time he used to meet those Police officials in front of Bakery, Vijaya Bank, tea shop, etc. The said Police officials demanded Rs.50,000/- for not registering criminal case against him. After negotiation, finally, the amount was scaled down to Rs.5000/-. PW1 has further deposed that, site Engineer brought him to some office, wherein 4-5 persons were present. He might have given the complaint as per Ex.P1. He gave Rs.5000/- (denomination of Rs.100/-) to the Lokayuktha Inspector. The 13 Spl.C.C.No.340/2010 said amount was exchanged to Rs.1000/- denomination. He does not know what procedure the Lokayuktha Police have done. Thereafter, the Lokayuktha Police took him to Varthur, then to some forest, wherein he paid the amount to some person. He does not remember the person whom he gave money. Accused No.1 & 2 had not received money from him. He does not know from whom the amount was recovered. No proceedings have been conducted in his presence. But his signature was obtained on some documents.
15. PW1 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P has cross-examined PW1 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross- examination.
16. During the course of cross-examination made on behalf of the accused persons, it is elicited from PW-1 that, his mother tongue is Hindi. He does not know reading, writing & speaking Kannada. He does not know the contents of the documents which he signed. The contents of the documents which he signed was not translated and made known to him in Hindi language.
17. The prosecution has examined CW3- B.L.Ramamurthy as PW2. PW2 has deposed that, on 10.8.2010, he was called to Lokayuktha Police Station and to 14 Spl.C.C.No.340/2010 act as panch witness in the trap. PW2 has deposed about the presence of the complainant in the Lokayuktha Police Station, playing of Digital Voice Recorder which was produced along with the complaint, conducting of pre-trap proceedings, drawing of Entrustment Mahazar, etc. PW2 has further deposed that, he was standing nearby Varthur Police Station along with Lokayuktha staff. One Police constable by name Vijay came in the Cheetah motorbike, made the complainant to sit as pillion rider and went nearby bakery situated behind Varthur Police Station, wherein they had soft drink. Thereafter, both of them proceeded in the same road and parked the motorbike in an open place. They followed them in a car. The Police constable received the amount from the complainant. The complainant gave a call to the Police Inspector. The said Police constable & the complainant came back to Varthur Police Station in the motor bike. They chased them in a car. When they tried to apprehend the said Police constable, he had a doubt and ran away from the place and went to open place. While running, the said Police constable had thrown his jerkin. He tried to hide himself in a bush. It was a slum area and dirty water was flowing. The Police constable got stuck himself in the ditch. The tainted currency notes fell in the ditch. On being questioned, he informed the Lokayuktha Inspector, that the amount was thrown in the ditch. The amount of Rs.5000/- was recovered from the ditch and tallied with the currency notes with the help of torch, since it was dark. Thereafter, the said 15 Spl.C.C.No.340/2010 Police constable was brought to Varthur Police Station. On enquiry, he disclosed his identity as Chowdareddy-Police constable, Varthur Police Station. This fact was confirmed by ASI of Varthur Police Station. The attendance register, ledger and other records of Varthur Police Station were verified by the Lokayuktha Inspector. Thereafter, both the hand fingers of Chowdareddy were washed in sodium carbonate solution. The said solution turned to black colour. The uniform dress of Chowdareddy was seized by making an alternate arrangement. There was a name plate displaying the name of Chowdareddy in the uniform shirt. The documents were seized from Varthur Police Station. Thereafter, accused No.1 Chowdareddy was brought to the Varthur Police Station. The Button Camera given to the complainant at the time of trap, was played, contents of it were converted to CD. Trap Mahazar was prepared as per Ex.P3 and obtained his signature.
18. During the cross-examination, it is elicited that, at the time of trap, complainant alone could go nearby Honeywell Bakery. He was standing along with the Lokayuktha Police. He did not overhear the conversation between the accused & the complainant. He has not heard the voice of the accused at any time before hearing the conversation recorded in the Voice Recorder. Before trap, he did not see the person who took the complainant in the motorbike. He has not overheard the conversation nor seen what transpired between the accused & 16 Spl.C.C.No.340/2010 complainant. He does not personally know either Vijay-Police constable or Chowdareddy.
19. The prosecution has examined CW-2 Manjunath Pujar, as PW-3. PW-3 is co-panch witness. PW3 has deposed about the presence of the complainant in the Lokayuktha Police Station, playing of Digital Voice Recorder which was produced along with the complaint, conducting of pre-trap proceedings, drawing of Entrustment Mahazar, etc. PW3 has further deposed that, at about 3.00 PM, they left for Varthur Police Station in a Government vehicle. The complainant made phone call to accused No.1, wherein he was told to come nearby Honeywell Bakery. The complainant alone could go to Honeywell Bakery. Other Trap Team Members were standing secretly nearby Honeywell Bakery. Accused No.1 came to Honeywell Bakery in Cheetah Bike, made conversation with the complainant. He took the complainant in his cheetah Bike and proceeded towards Gunjur main road. Two other members of trap team had followed the complainant. After sometime, complainant made a phone call to the Lokayuktha Inspector and told him that the accused No.1 received the amount and they are coming back to Varthur Police Station. When the accused No.1 arrived the Varthur Police Station, Lokayuktha Police surrounded him. Accused No.1 by having a doubt, removed and thrown the jerkin and ran away from the place by leaving his Cheetah bike. They chased him for about 500-600 meters. The accused No.1 tried to hide himself in the bush. After some 17 Spl.C.C.No.340/2010 time, the accused No.1 came out of the bush. On searching the person of accused No.1, tainted currency notes were not found. On being questioned, accused No.1 told the Lokayuktha Inspector that, he kept the tainted currency notes in the mud. Currency notes were recovered from the mud and tallied with the currency notes sheet. Accused No.1 was brought to Varthur Police Station. Accused No.1 was in police uniform. The name plate in the shirt displayed his name as 'Chowdareddy'. Both the hand fingers of accused No.1 were washed. The said solution becomes dark colour. On an enquiry, accused No.1 told the Lokayuktha Inspector that, the other persons introduced to the complainant as Satish & Mahesh are Aralanagowda & Mahaeshwaraiah. The complainant has identified the accused No.1 to 3. The Police Sub-Inspector has also identified the accused persons. Thereafter, the accused persons were brought to Lokayuktha Police Station, wherein the Button Camera given to the complainant at the time of trap was played, contents of it were converted to CD and transcript into writing. The PSI of Varthur Police Station has identified the voice of the accused persons. SHD, Duty Roster, NCR Register were seized. Trap Mahazar as per Ex.P3 was prepared and obtained the signature of the witnesses.
20. During the course of cross-examination, it is elicited that, complaint was in Hindi language. CW2-Ramamurthy and one of the staff of the Lokayuktha Police read the complaint and 18 Spl.C.C.No.340/2010 translated to Kannada. Complainant has not given any other complaint, apart from one given in Hindi. The complainant was not acquainted with reading & writing of Kannada. It is further elicited that, complainant could alone go to the Varthur Police Station at the time of trap. He was standing along with the other Trap Team Members. He has not seen the complainant making phone call to any person nor overheard the mobile conversation. He did not follow the complainant to the open field, where he said to have received the money. Lokayuktha Inspector has apprehended the accused No.1, nearby bush. Nobody told the Lokayuktha Inspector to apprehend him. He does not know whether the name plate of accused No.1 was seized or not. The Trap Mahazar was prepared in the Lokayuktha Police station. He did not give instructions to prepare the Trap Mahazar. The Lokayuktha Police have not recorded his statement at the time of Trap Mahazar. It is further elicited that, he knows the consequences of facing Departmental Enquiry, if he deposed contrary to the contents of Trap Mahazar & statement u/s 164 of Cr.P.C.
21. The prosecution has examined CW13-Ramakrishna, as PW-4. According to the prosecution, PW4 had seen the Lokayuktha Police arresting the person who was in police uniform and recovered the amount of Rs.5000/- from him. But PW4 has deposed nothing, except the Lokayuktha Police collecting his home address.
19 Spl.C.C.No.340/201022. PW-4 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P has cross-examined PW-4 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross- examination.
23. The prosecution has examined CW23-K.Ravishankar as PW5. PW-5 is the Investigating Officer. PW-5 has deposed about registering of FIR, drawing of Entrustment Mahazar, laying of trap, recovery of currency notes of Rs.5,000/- from accused No.1, resultant hand wash of accused No.1 turning to black colour, playing of Digital Voice Recorder and Button Camera, converting the contents of it into DVD and transcript into writing, identification of voice of accused No.1 & 2 through Girish-PSI of Varthur Police Station, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, obtaining of attested copy of Station House Diary, Duty roster and NCR, collecting service particulars of accused No.1 & 2, recording of statement of accused No.1, receipt of Chemical Examination Report, obtaining spot sketch, call detail report of mobile phone of the complainant & accused No.1 & 2 and receiving Sanction Order from the Competent Authority to prosecute the accused persons, etc. 20 Spl.C.C.No.340/2010
24. It is well settled that demand of illegal gratification by the accused and acceptance of the same is sine-qua-non for constituting the offence under Section 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that there was demand and acceptance 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 complaint and the accused was the Competent Authority to do an official favour to the complainant.
25. The accused persons alleged to have demanded & accepted bribe of Rs.5000/- from the complainant, by threatening to foist a criminal case u/s 307 of IPC and to put him behind bars.
26. In the present case, complaint-Ex.P1 is not given against accused No.1 & 2. PW1-Eshwar, the complainant has not supported the prosecution case. He disowned making of complaint-Ex.P1 and stated in his examination-in-chief that, the accused persons had not demanded anything from him, and he does not know what is written in Ex.P1, the accused persons had not received money from him, no proceedings have been conducted in his presence. The complainant did not support the prosecution case in so far as demand and acceptance of money by the accused is concerned. The complainant has failed to identify the accused persons. In so far as PWs 2 & 3 are concerned, they are panch witnesses. They have not overheard 21 Spl.C.C.No.340/2010 the conversation between the accused No.1 & the complainant nor saw the complainant paying the money to the accused No.1. The evidence of PWs 2 & 3 will not be helpful for the prosecution to prove that the complainant paid the money in pursuant to demand made by accused No.1. The Trap Mahazar was not prepared as per the instructions of the panch witnesses. The only other material available is the recovery of the tainted currency notes. The evidence on record reveals that the currency notes were recovered from the ditch and it was covered with mud. The hand wash of the accused No.1 also turned to dark colour. Mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute an offence. The above also will be conclusive in so far as the offence under Section 13(1)(d) is concerned, as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage, cannot be held to be established. It is only on proof of acceptance of illegal gratification the presumption can be drawn under Section 20 of the Act that such gratification was received for doing or fore-bearing to do any official act. Unless there is proof of demand of illegal gratification, proof of acceptance will not follow. In the present case, the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.
22 Spl.C.C.No.340/201027. Further, the accused persons being the Police constables have no independent power to register FIR and to investigate the case. They have to carry out the work as per the directions of the superior officers. No case was registered against the complainant or his colleagues in Varthur Police Station. No official work of the complainant was pending in Varthur Police Station. These facts are admitted by PW5. Since the accused persons had no authority or competency to register FIR and to investigate the case, the question of demand of illegal gratification by the accused persons and acceptance of the same, is legally & factually does not arise.
28. In the present case, MO-9 & MO10 is the DVD & CD said to have contained the conversation, MOs-4 & 11 are the CDs containing the video-graph of Pre-Trap Mahazar and Trap Mahazar which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused No.1 & 2 and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MO-9 & MO-10 are not admissible in evidence.
29. In so far as, the allegation that accused No.1 attempted to cause disappearance of evidence by hiding money 23 Spl.C.C.No.340/2010 in the ditch is concerned, no doubt PWs 2 & 3 have by and large supported the case of the prosecution. But the fact remains that the complainant who lodged the complaint and said to have given money to the accused No.1 after he made demand, has turned hostile to the prosecution case. PW1 in his examination- in-chief has deposed that accused No.1 & 2 had not received money from him. PWs 2 & 3 being Government servants, there is likelihood that they would support the prosecution against the accused because of fear of initiation of disciplinary proceedings, if they do not support the prosecution case. In that context, the evidence of PWs2 & 3 will have to be appreciated with reference to the evidence of PW1-complainant and not in isolation. The prosecution failed to prove that the accused No.1 accepted the money from the complainant in pursuant of the demand. The ingredients of Section 7 & 13(1)(d) of the Prevention of Corruption Act,1988 are not established. When such being the case, the question of accused No.1 hiding the money in the ditch and thereby attempted to cause disappearance of evidence, does not arise. The necessary ingredients of Sections 7, 13(1)(d) of Prevention of Corruption Act,1988 and Sections 201 & 511 of IPC are not established.
30. I have gone through the facts of the case and ratio laid down in the decisions relied on by the Counsel for accused No.1 & 2. The above said decisions are squarely applicable to the facts of the present case. Hence, I answer Point Nos.1 to 3 in the Negative.
24 Spl.C.C.No.340/201031. Point No.4: In the result, I proceed to pass the following:
ORDER The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under Sections 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and Sections 201 & 511 of IPC and set at liberty.
Bail bonds executed by the accused No.1 & 2 stands cancelled.
MO1- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
Mos-2 to 11 being worthless is ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment writer directly on the computer, after transcription, corrected and then pronounced by me in the open court on this the 27th day of April 2018) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 25 Spl.C.C.No.340/2010 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Eshwar
PW2 B.L.Ramamurthy
PW3 Manjunath Poojar
PW4 Ramakrishna
PW5 K.Ravishankar
List of documents marked on behalf of prosecution:
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-2 Pre Trap Mahazar
Ex.P-2(a) Signature of PW1
Ex.P-2(b) Signature of PW2
Ex.P-2(c) Signature of PW3
Ex.P-2(d) Signature of PW5
Ex.P-3 Trap Mahazar
Ex.P-3(a) Signature of PW1
Ex.P-3(b) Signature of PW2
Ex.P-3(c) Signature of PW3
Ex.P-3(d) Signature of PW5
Ex.P-4 Currency notes sheet
Ex.P-4(a) Signature of PW2
Ex.P-4(b) Signature of PW3
Ex.P-5 Sanction Order
Ex.P-6 FIR
Ex.P-7 CD transcription
Ex.P-8 Transcription of scene/conversation
recorded in the Button Camera
Ex.P-9 Report
Ex.P-10 Attested copy of Station House Diary,
Duty Roster & NCR
Ex.P-11 Statement of accused No.1
Ex.P-12 Sample seal
26 Spl.C.C.No.340/2010
Ex.P-13 Acknowledgment
Ex.P-14 Statement of accused No.2
Ex.P-15 Service particulars of accused persons Ex.P-16 Spot Sketch Ex.P-17 Forensic Science Laboratory Report Ex.P-18 Call detail report of mobile phone of complainant, accused No.1 & 2 List of material objects marked on behalf of the prosecution:
MO.1 Tainted currency notes Article No.4 MO.2 Sample solution Article No.1 MO.3 Hand wash of CW3 Article No.2 MO.4 CD containing the video Article No.3 recording MO.5 Sample solution Article No.5 MO.6 Right hand wash solution of Article No.6 & 6A 6A accused No.1 MO.7 & Left hand wash solution of Article No.7 & 7A 7A accused No.1 MO.8 Uniform pant of the accused Article No.8 No.1 MO.9 DVD containing the Article No.9 scene/conversation recorded in the Button Camera MO.10 CD containing the Article No.10 conversation recorded in the mobile phone MO.11 DVD containing the Article No.11 proceedings pf the Trap Mahazar List of witnesses examined on behalf of the accused :
-Nil-27 Spl.C.C.No.340/2010
List of documents marked on behalf of the accused:
-Nil-
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 28 Spl.C.C.No.340/2010 Judgment pronounced in open court (vide separate orders) ORDER Accused No.1 & 2 present. The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under Sections 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and Sections 201 & 511 of IPC and set at liberty.
Bail bonds executed by the accused No.1 & 2 stands cancelled.
MO1- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
Mos-2 to 11 being worthless is ordered to be destroyed after the appeal period is over.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77)