Bangalore District Court
Lokayukta Police Inspector vs Narayanagowda on 31 August, 2017
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 31st day of August 2017
Spl.C.C. No.150/2011
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: Narayanagowda,
S/o Rangappa,
32 years, P.C.No.8546,
Yashavanthapura Traffic Police station,
Bengaluru City.
R/at Chikkakalya village,
Baginagere Post, Thippasandra Hobli,
Magadi Taluk,
Ramanagar District.
(By Sri. C.G. Sundar -Adv.)
2 Spl.C.No.150/2011
Date of commission of
offence 11-05-2011
Date of report of occurrence 11-05-2011
Date of arrest of accused: 12-05-2011
Date of release of accused 17-05-2011
on bail:
Date of commencement 02-04-2014
of evidence
Date of closing of 25-03-2017
evidence
Name of the complainant Sri. M.Hyder
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: 31-08-2017
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988.
3 Spl.C.No.150/2011
2. The case of the prosecution in brief is, that the accused is a Police Constable working in Yeshwanthapura traffic Police station, Bengaluru. Complainant M.Hyder S/o M.A.Mohammed has given a complaint before the Lokayukta police on 11.05.2011 stating that he is doing travels business and he owns one tempo traveler and Tata Sumo and about one month back Police had taken his vehicle to the Police station, when he had stopped it while moving towards Chandra layout from Goruguntepalya Junction and then he went to Yeshwanthapura Traffic Police station and spoke to accused P.C. Narayana Gowda and paid Rs.2500/- for which when he asked for receipt he has demanded Rs.500/- extra amount. After 15 days, again stopped the vehicle of the complainant and asked him to pay Rs.500/- per month and has stated if the amount is not paid, cases will be filed regularly. The accused has taken the mobile number of the complainant and thereafter again and again accused contacted the complainant through phone. On 06.05.2011 accused told the complainant that he 4 Spl.C.No.150/2011 has not given the vehicle for the trip and also not paid monthly amount and he will take the vehicle to the Police station. Then on 07.05.2011 complainant came to Lokayukta office and informed about demand of bribe by the accused and they have given voice recorder to record the conversation with the accused and then on 08.05.2011 the complainant at 5 p.m. met the accused and recorded the conversation about demand of bribe by accused and came back to Lokayukta office on 09.05.2011. Then, after ascertaining that accused is on duty, he gave complaint on 11.05.2011. After receiving the complaint, the Lokayukta Police Inspector has registered the FIR in Cr.No.22/2011 and made preparation for trap of the accused. He secured two panch witnesses and pre-trap proceedings have been followed and then they went to Goraguntepalya junction on the same day and when accused has received the bribe amount from the complainant, accused was trapped and was arrested and produced before the court and was later released on bail. The Investigating Officer has 5 Spl.C.No.150/2011 followed procedure for the trap and also continued the investigation and after completion of the investigation filed charge sheet against the accused.
3. The accused appeared before the court on summons. Copies of the charge sheet and the enclosures to the charge sheet are furnished to the accused.
4. Heard both the parties regarding framing of charge. As there are prima-facie materials found against the accused, after hearing the accused before charge, charge is framed and read over to the accused. The accused pleaded not guilty.
5. In support of the prosecution case PWs 1 to 8 are examined and documents as per Exs.P.1 to P.30 are marked for the prosecution. MOs 1 to 21 are also marked.
6. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. 6 Spl.C.No.150/2011 is recorded and the accused denied all the incriminating evidence appearing against him. The accused has not chosen to lead any defence evidence on his behalf. In the cross- examination of PWs 1 and 2 two documents are got marked for the accused as Exs.D.1 and D.2.
7. Heard both the counsels and perused the records.
8. 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 the accused who is working as Police constable in Yeswanthapura Traffic Police station, being a public servant has, on 06.05.2011 demanded the bribe amount of Rs.500/- per month for not filing the case against the Tempo traveler vehicle bearing No. KA.18.A.4101 of the complainant and again on 08.05.2011 accused demanded Rs.1000/- as 7 Spl.C.No.150/2011 illegal gratification for two months at the rate of Rs.500/- per month and on 11.05.2011 at about 4.40 p.m. near bus stop at Goreguntepalya, Bengaluru accused demanded and accepted the bribe amount of Rs.1000/- as illegal gratification for two months from the complainant and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution proves beyond all reasonable doubt that the accused who is working as Police constable in Yeswanthapura Traffic Police station, being a public servant has, on 06.05.2011 demanded the bribe amount of Rs.500/- per month for not filing the case against the Tempo traveler vehicle bearing No. KA.18.A.4101 of the complainant and again on 08.05.2011 accused demanded Rs.1000/- as illegal gratification for two months at the rate of Rs.500/- per month and on 11.05.2011 at about 4.40 p.m. near bus stop at Goreguntepalya, Bengaluru accused demanded and accepted the bribe amount of Rs.1000/-8 Spl.C.No.150/2011
from the complainant to make pecuniary advantage against public interest and thereby committed offence of criminal misconduct punishable u/s 13(1)(d) of Prevention of Corruption Act which is punishable u/s 13 (2) of Prevention of Corruption Act?
4. What order?
9. 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
10. Point No.1 : As per section 19 of Prevention of
Corruption Act, no Court shall take cognizance of the offences punishable u/s. 7 and 13 alleged to have been committed by the public servant, except with the previous sanction of the competent authority. The accused was working as Police constable in Yeshawanthapura Traffic Police station at the time of alleged incident. Therefore, Accused is a public servant. 9 Spl.C.No.150/2011 Hence, valid sanction from the competent sanctioning authority is must to prosecute the accused.
11. In the present case, prosecution sanction order has been given by Deputy Commissioner of Police, Traffic East Division, Bengaluru City who is stated to be competent authority to accord sanction to prosecute the accused. Prosecution sanctioning Officer has given evidence as PW.3. In his evidence he has stated that, he received the requisition from the ADGP, Karnataka Lokayukta along with copy of complaint, pre-trap mahazar, trap mahazar, PF, Report of chemical examiner, copies of the sketch of the spot, report of CW.5 and CW.7, copy of the cell phone call details, copies of statement of witnesses. He has stated that he has perused all the materials and satisfied himself that there is prima-facie case to accord sanction to prosecute the accused and accordingly he has given sanction for prosecution on 28.06.2011 as per Ex.P.10. In the cross-examination he has stated that he has 10 Spl.C.No.150/2011 not obtained the Government order of the accused and order of revocation of the suspension order dated 28.04.2009 of the accused was not brought to his notice and denied that he was not competent to accord sanction. In Ex.P.10 prosecution sanction order it is clearly stated that the sanctioning authority after perusing the investigation materials produced before it and on applying the mind has come to the conclusion that there is prima facie case for grant of sanction against accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act. PW.3 in his evidence has stated that he has perused all the material documents which are placed before him and after perusal of the same and by applying the mind he has accorded the sanction. Since the competent sanctioning authority has considered the relevant materials and then accorded the sanction, the sanction accorded by PW.3 as per Ex.P.10 is a valid sanction. Hence, Point No.1 is answered in the Affirmative.
11 Spl.C.No.150/2011
12. Point Nos.2 and 3 : To avoid repetition of discussion and as both these two points are interlinked with each other, they are taken together for consideration.
13. The case of the prosecution is that, the accused who is working as Police Constable in Yeshwanthapura Traffic PS has continuously demanded bribe of Rs.500/- per month for not stopping and registering case against vehicle of the complainant. As per the complaint averments, accused demanded Rs.1,000/- as illegal gratification payable for two months and about this demand, complaint is given to the Lokayukta Police and after making all preparation for trap, accused was trapped on he receiving Rs.1000/- tainted notes from the complainant and it is alleged that the accused has committed the offences under Prevention of Corruption Act 1988. To prove the commission of offences by the accused prosecution has led the evidence of PWs 1 to 8. PW.2 M.Hyder is the complainant. PW.1 H.N.Raghu and PW.4 B.M.Rajendra 12 Spl.C.No.150/2011 are the panch witnesses. PW.5 N.G. Shivashankar, Police Inspector and he is the Investigating Officer. PW.6 is D.Muniraju H.C. and PW.7 Tirumalaiah is retired Sub Inspector of Police and PW.8 Ravi Kumar is Inspector of Police, Yeshwanthapura Traffic Police station. PW.3 is the sanctioning authority.
14. PW.2 complainant in his evidence has stated about his transport business and that when he had parked his vehicle at Goreguntepalya junction accused along with one Asst. Sub- Inspector of Police Thirumalaiah came there and Thirumalaiah obtained his phone number and thereafter he called him and demanded bribe of Rs.500/- every month and regarding this complaint is lodged to Lokayukta police against the staff of the Yeshwanthapura Traffic Police station as per Ex.P.5. He has stated that voice recorder was given to him by Lokayukta police and he has recorded the conversation with the accused, Thirumalaiah and some other police staff. He has stated that 13 Spl.C.No.150/2011 he has produced Rs.1000/- in Lokayukta office and numbers of the notes were noted on Ex.P.1 and phenolphthalein powder was applied on it and PW.4 placed the notes in the left side pocket of the complainant shirt and his hands were washed in solution prepared by sodium carbonate and it turned to pink colour and it was seized. The witness has also stated that he was instructed by CW.20 to give the tainted notes to the person who demands money and then to give signal by scratching his head and has also stated about preparing pre- trap mahazar. The witness has stated he along with PW.1, CW.3, CW.20 and his staff of CW.20 reached the junction of Goraguntepalya and he went near the interceptor vehicle wherein Thirumalaiah demanded Rs.1,000/- and asked him to give the same to the Police constable and when he was giving the amount Constable asked him to place the tainted currency notes on the rear seat of the said vehicle. He has further stated that he gave signal and then Police inspector came there with entire team. He has also stated about hand wash of 14 Spl.C.No.150/2011 accused and that solution turned to pink colour and it was seized. He has further stated that trap mahazar was drawn as per Ex.P.3. The witness is treated as hostile and is cross examined, wherein he denied that accused has demanded and received the bribe amount. He has also denied portion of his statement given as per Ex.P.6 to Ex.P.8. In the cross- examination he has stated that he had approached Thirumalaiah for release of the tempo traveler and he has not met the accused and has admitted he has given statement before the Enquiry Officer in the departmental enquiry as per Ex.D.2.
15. PW.1 is a panch witness and he is also a shadow witness according to the prosecution. He has stated that as per the direction of his higher officer on 11.05.2011 he along with PW.4 came to Lokayukta office and met PW.5 Lokayukta Police Inspector who introduced complainant to them and complainant told about the complaint given and voice recorder 15 Spl.C.No.150/2011 containing the conversation between the complainant and accused was played in which there was demand of bribe for release of vehicle. The witness has stated that the complainant has produced Rs.1000/- in denomination of 10 currency notes of Rs.100/- notes. The Serial numbers of the currency notes were written on a white paper and print out of the same as per Ex.P.1. The phenolphthalein powder was smeared to the currency notes. The currency notes were given to him for counting and gave it to Lokayukta Police Inspector. After counting the notes he has kept the amount in the right side pocket of the shirt of the complainant and thereafter sodium carbonate solution was prepared and sample was taken out and preserved in a bottle, his hands were washed in the solution and the solution turned to pink colour. The witness has stated about the instructions given to complainant and others. PW1 has stated that as per the direction, complainant telephoned to the accused and accused asked the complainant to come near Yeshwanthapur Police station and they went in 16 Spl.C.No.150/2011 one two wheeler and another van. He has stated that proceedings were recorded as per Ex.P.2 and he has signed the same. The witness has also stated that accused telephoned to complainant and he has stated that he was not near Yeshwanthapura Police station but near Gorguntepalya. The witness has stated that near Gorguntepalya complainant was moving in the van and PW.1 was asked to sit in the back side of the complainant. The witness has stated that accused had asked to come near the bus stop of Gorguntepalya and they went there and then complainant called the accused through phone and accused came near the van and enquired about the PW.1 who was in the van and complainant told that PW! is employee of his company. But accused felt suspicion and went forward and again came back and asked the complainant to come out of the vehicle and at a little distance accused asked whether the complainant had brought money. PW1 has further stated that complainant gave money in the hands of the accused and he counted the currency notes and kept it in his 17 Spl.C.No.150/2011 pocket and then complainant flashed the signal by wiping his head at about 4.40 p.m. He has stated that then Lokayukta police came and surrounded the accused and Lokayukta police inspector disclosed his identity and ascertained the details of the accused and accused was made to sit in the rare seat of the vehicle and by preparing the solution, hand wash of the accused were effected and it turned to pink colour and coloured solution was seized and sealed in bottles. He has stated that when accused was asked where was the money and he said it was in the left side pocket of the shirt and PW.4 has taken out currency notes from the pocket of the shirt of the accused and it was verified and tallied with the notes numbers mentioned earlier and his notes were put in an envelope and seized. The witness has further stated that thereafter they went to Yeshwanthapura Police station and attendance extract was also seized and then they came to Lokayukta Office and shirt of the accused was got removed and it was seized. The witness has further stated that proceedings were videographed and that 18 Spl.C.No.150/2011 accused has also given written explanation as per Ex.P.4 and further stated that proceedings were reduced into writing as per Ex.P.3 and he has signed the same. In the cross- examination he has stated that he along with PW.2 got down at the place called Gorguntepalya and from there he proceeded with PW.2 in the tempo traveler vehicle PW.2 and reached a place at Gorguntepalya of Yeshawanthapura where a interceptor vehicle was found. He has stated that he was seated just behind the seat of the driver of tempo traveler vehicle and PW.2 was driving the same. He has stated that PW.2 parked his vehicle at a distance of about 300 meters away from the interceptor vehicle and he remained inside that vehicle and PW.2 went near the interceptor vehicle. The witness has stated that he could not hear the conversation between PW.2 and the accused. He has stated that when PW.2 gave massage by wiping his head with right hand, he was still inside the tempo traveler. The witness has stated that when he reached the interceptor vehicle Lokayukta Police staff 19 Spl.C.No.150/2011 were counting money and mahazar was drawn in the office of CW.20. He has stated that he has given the instructions at the time of drawing trap mahazar and admitted his evidence given before the enquiry officer during departmental enquiry as per Ex.D.1.
16. PW.4 is another panch witness who has also stated about pre trap proceedings and that he has signed pre-trap mahazar and they all proceeded towards Yeshwanthapur and thereafter they proceeded towards Gorguntepalya junction and at about 4.30 p.m. Investigating Officer received phone call and thereafter PWs 1 and 2 proceeded towards a jeep of traffic police and he followed Investigating Officer and he found the accused seated in the traffic police vehicle and some currency notes were on seat of the vehicle and a mahazar was drawn and thereafter he has gone to Yeshwanthapura Police station and then to Lokayukta office and he has signed some documents. He has stated that signature was taken on acknowledgment, but on the date of giving evidence he went to 20 Spl.C.No.150/2011 Lokayukta office wherein seal was given and then he has produced the same before the court which is marked as MO.1. The witness has turned hostile and is cross-examined for the prosecution wherein he admitted that he has noticed the accused checking vehicles near the factory called Gokuldas Images at Yeshwanthapura. He has denied the statement given before the Lokayukta police as per Ex.P.12 and P.13. In the cross-examination for accused he has stated that he do not know contents of Ex.P.2 and P.3.
17. PW.6 is Head Constable working as driver of Interceptor vehicle. He has stated that on 11.05.2011 they were stopping the vehicle at Goraguntepalya and were checking the speeding vehicles and accused was also with them. The witness has stated that at about 4 p.m. a tempo traveler vehicle came there and driver parked the vehicle and met accused and both of them went towards TT vehicle and after 10 minutes Lokayukta police brought accused by saying that he has taken money and further proceedings were held in 21 Spl.C.No.150/2011 this vehicle and he was standing outside the vehicle. The witness has turned hostile to the prosecution case and though he has been cross-examined for the prosecution nothing worth is elicited from him and he has denied the statement given before the Lokayukta police as per Ex.P.26.
18. PW.7 Tirumalaiah, Sub-Inspector of Police of Yeshwanthapura Traffic Police station at the relevant time has stated that on 11.05.2011 after finishing lunch they were working at CMTI Junction, Tumkur Road. He has stated that at about 4.30 p.m. he found the accused talking with a person of Tempo Traveller and suddenly two persons brought accused to his vehicle and another 4 persons followed them and on enquiry they told that they are from Lokayukta. He has further stated that he was asked to stand outside the vehicle and thereafter Lokayukta police have washed the hands of accused and recovered a sum of Rs.1000/- and Lokayukta police have videographed the entire proceedings. Thereafter, they all came to Lokayukta office and he identified the voice of the accused 22 Spl.C.No.150/2011 when the conversation recorded was played before him. The witness has admitted in his cross-examination that police constables have to obey the instructions of higher officers and they do not have any independent powers. He has admitted that he could not see what happened inside as he was standing outside.
19. PW.8 Ravi Kumar, was the Police Inspector of Yeshwanthpura Traffic Police station who has stated that he has deputed the accused to work with PW.7 in interceptor vehicle by making an entry in the SHD as per Ex.P.27. He has stated he has received information that the accused was trapped and on 12.05.2011 he went to Lokayukta office where audio was played and on hearing he has identified the voice of the accused. He has given report as per Ex.P.22. He has stated that mobile number mentioned belong to the accused and in the cross-examination he has stated that he has not ascertained in whose name the said mobile number stands. He has admitted that the voice of the person can be imitated. 23 Spl.C.No.150/2011
20. PW.5 N.G.Shivashankar, is the Police Inspector and Investigating Officer, in this case. He has stated that on 07.05.2011 complainant PW.2 appeared before him and asked for procedure to lodge the complaint against the accused who is demanding bribe. He has stated that as complainant did not produce any evidence, he gave him a voice recorder and asked him to record the conversation regarding demand of bribe. The witness has stated that on 11.05.2011 complainant came and lodged complaint along with the voice recorder and then he registered the case in Cr.No.22/11. The witness has stated about securing panchas and following pre trap procedures, smearing phenolphthalein powder on the currency notes produced by complainant and drawing of pre trap mahazar as per Ex.P.2 and keeping tainted notes in the shirt pocket of complainant, hand wash of PW2 etc. The witness has also stated about transmission of recordings in the voice recorder to CD and transcribing the same in the sheet of paper as per Ex.P.16. Witness has further stated that he instructed PW.1 to 24 Spl.C.No.150/2011 accompany the complainant as shadow witness and to observe the activities and to report later. Witness has stated that all of them went to Goraguntepalya to take the vehicle of the complainant and then proceeded to Yeshwanthapura Traffic Police station. He has stated that complainant made call to the accused and asked to come near Goraguntepalya bus stand and they went to that spot and they all scattered and found that accused was checking the vehicles. The witness has further stated that the complainant went in a tempo traveler and stopped near the accused thereafter at about 4.40 p.m. complainant flashed the signal by wiping his head and then staff and panchas rushed to the spot and complainant pointed out the accused and told that he was the person who received the bribe money and then he has disclosed his identity and ascertained the details of the accused and thereafter his staff prepared sodium carbonate solution nd after taking sample the hands of the accused were washed in the solution and it turned to pink colour. The witness has stated that PW.1 was asked to 25 Spl.C.No.150/2011 take out the said notes and thereafter PW.1 has taken out and then it was verified again with Ex.P.1 and it tallied and witness has identified the amount as per MO.2. The witness has further stated that thereafter they came to Yeshwanthapura Police station and he obtained copy of the Station house dairy. He has also stated about the drawing of trap mahazar and preparing rough sketch as per Ex.P.17 and also arrest of the accused. The witness has further stated that by making alternative arrangement, shirt of the accused was got removed and it was seized and sealed in a cover and he identified the shirt as MO.3. The witness has further stated that the voice recorder and the spy camera given to the complainant at the time of trap was played with the help of computer and contents were transmitted to a CD and CD were transcripted and same was got identified by CW.5. He has also identified metal seal marked as MO-1. The witness has further stated about recording statement of the witnesses and also stated that the recording and voice recorder were transcribed as per Ex.P.19 26 Spl.C.No.150/2011 and P.20. The witness has also stated that on 17.05.2011 he has produced the complainant and CW5 before the Additional Chief Metropolitan Magistrate and got recorded the statement under Sec.164 of Cr.P.C. and received chemical examination report and service details, as per Ex.P.9 and received the sketch from Asst. Engineer, PWD as per Ex.P.25 and after completing the investigation he has submitted report through proper channel seeking sanction to prosecute the accused and after receiving the sanction order as per Ex.P.10 he has submitted the charge sheet. In the cross-examination for the accused, the witness has stated that he do not remember whether he had made any entries in station house dairy on 07.05.2011 about complainant appearing before him. He has stated that earlier to 11.05.2011 he has not registered any FIR. The witness has stated that original devices of audio and video recorders are not seized in the case and has admitted that he has not obtained any certificate as required under Sec.65B of the Evidence Act. He has admitted that the police constable 27 Spl.C.No.150/2011 has to act as per the directions of the official superiors and he has no independent powers. He has admitted that he dictated the contents of Ex.P.2 and P.3. The witness has stated when the complainant went near tempo traveler he was at a distance of about 20 feet and admitted that there were many people moving near the tempo traveler. The witness has stated that the hand wash of the accused was conducted on a road near metro pillars bearing No.381 and 382 at Goraguntepalya bus stand. The witness has stated that trap mahazar was running mahazar and it was not prepared at the spot.
21. To prove the commission of the offences by the accused under Sec.7 and 13 of the Prevention of Corruption Act, prosecution has to mainly establish the demand and acceptance of the bribe amount by the accused. The prosecution also have to prove that the said demand and acceptance of the bribe amount is in respect of official act to be 28 Spl.C.No.150/2011 performed by the accused. Only if these requirements are established, accused can be held guilty.
22. As per the case of the prosecution accused was the Police constable and he was demanding bribe amount at the rate of Rs.500/- per month for not stopping and checking and not registering case against the tempo traveler vehicle of the complainant which was regularly passing through Goraguntepalya junction. Therefore, according to the prosecution for doing the official favour of not registering the case against the complainant's vehicle, accused has demanded the bribe. The learned counsel for accused has vehemently argued by referring to the evidence of PW.5, PW.6 & 7, to the effect that police constables have to obey the instructions of higher officers and they do not have any independent powers, that accused had no authority to do any official favour to the complainant by not registering the case and not stopping the vehicle. Therefore, it is argued that there is no work of 29 Spl.C.No.150/2011 complainant pending with the accused or accused was not having any power to do any official favour to the complainant and as such complainant demanding and accepting bribe does not arise. No doubt, PW.5, 6 and 7 have admitted in the cross- examination that the police constables have to obey the instructions of higher officers and they do not have any independent powers. The evidence of PW.8 the Inspector of Police and the evidence of PW.6 and 7 would show that on 11.05.2011 accused was deputed to work with PW.7 in interceptor vehicle and entry was made in the Station House Dairy as per Ex.P.27. Therefore, it is clear that on 11.05.2011 accused was deputed to work with the Sub-Inspector of Police PW.7 and they were required to work in the interceptor vehicle. The evidence before the court also shows that the accused along with PW.6 and 7 was stopping the vehicles on 11.05.2011. In the complaint also it has been stated that even earlier when the complainant had been to the Police station as his vehicle was taken to the Police station it was accused who 30 Spl.C.No.150/2011 has taken the amount and released the vehicle. Though the accused is working only as Police constable, he was deputed to work with PW.7, Sub-Inspector in the interceptor vehicle on 11.05.2011 as per Ex.P.27 and evidence of PW.8. Admittedly, the accused who was a Police constable was working in Yeshwanthapur Traffic Police station and on 11.05.2011 he was entrusted with the work in the interceptor vehicle along with PW.7. As such it could be accepted that the accused as Police constable in Yeshwanthapura Traffic Police station was in a position to do official favour to the complainant by not taking action for Violation of Traffic Rules by the vehicle of the complainant. Therefore, the contention that there was no official work of the complainant pending with the accused cannot be accepted. There are sufficient materials to show that accused was in a position to do official favour to the complainant by not registering the cases against the complainant's vehicle for Traffic Rules Violations. 31 Spl.C.No.150/2011
23. The next aspect to be considered is demand and acceptance of the bribe amount by the accused. To prove the demand of the bribe amount, prosecution has contended that the accused has obtained the mobile number of the complainant and has again and again called the complainant and demanded Rs.500/- per month for not stopping and filing case against the vehicle of the complainant and accused demanded Rs.1000/- as the bribe for two months. As per the prosecution case, as there was repeated demand for bribe by the accused to the complainant through mobile phone, complainant contacted the Lokayukta police on 07.05.2011 and PW.5 has given voice recorder to the complainant and thereafter complainant met the accused and had conversation with him which was recorded in the voice recorder and same was given to PW.5 and it was played before the panch witness PWs 1 and 4 and then was transmitted to the CD and C.D. was seized and then it was also transcribed in a sheet of paper as per Ex.P.15. This transcription of the voice recorder is 32 Spl.C.No.150/2011 contending the conversation of the accused with the complainant wherein there is demand of bribe by the accused.
24. To prove that accused has demanded bribe from the complainant when the complainant contacted the accused personally on 08.05.2011, the prosecution is relying on Ex.P.15 transcription of the audio conversation and the C.D. In this case, complainant has given evidence as PW.2. PW.2 has turned hostile and has denied that accused was talking to him and that he was demanding Rs.1000/- as bribe for two months. According to PW.2 it was the Inspector Thirumalaiah PW.7, who was demanding amount from the complainant. In the entire evidence of PW.2, there is no specific allegation against the accused about demanding of bribe. In his cross- examination for the prosecution by treating him as hostile, PW2 has only admitted the suggestion that accused had demanded bribe from him and accused had obtained his telephone number and was repeatedly demanding the money. However, 33 Spl.C.No.150/2011 the witness has stated that he do not know whether the contents of his complaint are true or false. PW2 has stated in his cross-examination for the accused that he has not met the accused for release of tempo traveler and he has also admitted his statement given before the enquiry officer in the departmental enquiry as per Ex.D.2. In Ex.D.2 also this PW.2 has not stated that accused Narayana Gowda has demanded the bribe from him. Hence, the evidence of PW.2 complainant is not helpful to the prosecution to prove the demand of bribe amount by the accused prior to lodging of complaint against the accused as per Ex.P.5. Therefore to show that on 08.05.2011 or earlier, before registering the complaint, there was demand of bribe amount by the accused, there is no oral evidence available before the court. Ex.P.15 is the transcription of the alleged conversation held between the complainant and the accused. Even the conversation is stated to have been transmitted to the CD and the CD is produced before the court. Even there is another transcription of the conversation alleged 34 Spl.C.No.150/2011 to have been had between the complainant and accused on 11.05.2011 at the time of pre-trap proceedings which is marked as Ex.P.16 even the CD of the same is produced before the court. These transcriptions of the conversation are electronic records and are not primary evidence.
25. As per the decision of Hon'ble Supreme Court relied by learned counsel for accused and reported in 2015 (1) SCC (Cri) 24 = (2014) 10 SCC 473 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. The Hon'ble Supreme Court has also held in para No18 that, "The evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under section 65B of the Evidence Act are not complied with, 35 Spl.C.No.150/2011 as the law now stands in India". The Hon'ble Supreme Court also held in Para No.22 of this Judgment that; "The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with 65 of the Evidence Act shall yield to the same. ...". On going through this decision it is clear that unless certificate U/s.65-B of the Indian Evidence Act is produced along with the electronic record, it cannot be considered as admissible evidence. Therefore, as the prosecution has not produced any certificate under Sec.65-B of the Indian Evidence Act, as admitted by PW.5, CD's and Ex.P.15 and P.16 alleged transcription of the conversation, cannot be considered as evidence. As stated above, there is no other evidence to prove the demand of bribe amount by the accused prior to giving of the complaint. Though PW.2 complainant has given evidence he has not stated about the demand of bribe amount by the accused. 36 Spl.C.No.150/2011 Hence, the demand of bribe by the accused prior to filing of the complaint is not made out by the prosecution.
26. As regards the demand of bribe by the accused at the time of trap, though there is alleged conversation at the time of trap recorded in the voice recorder and in the Spy Camera and the same is said to have been transmitted to CD as per MO-5, MO-7 and its alleged transcription are produced at Ex.P.19 and P.20. There is no certificate as required U/s.65B of the Indian Evidence Act regarding these CD's and also the transcriptions at Ex.P.19 and P.20. Hence, as discussed above, even these transcriptions at Ex.P.19 and P.20 and the CD's are not of any help to the prosecution and are not admissible evidence. According to the prosecution the accused has demanded the bribe amount and received the bribe amount at the time of trap in the presence of PW.1 shadow witness from the complainant. As stated above, complainant PW.2 in his evidence has stated about the demand of bribe amount by 37 Spl.C.No.150/2011 the Inspector and not by the accused Police constable. PW.2 complainant in his chief evidence has stated that he met Thirumalaiah and accused was also found checking the vehicles at that spot and he alone went near the interceptor vehicle and Thirumalaiah demanded Rs.1000/- and told him to give it to a police constable and was told to keep the same on the rear seat of the interceptor vehicle and he placed the tainted currency notes on the rear seat of the said vehicle and accused was stopping the other vehicles in that place. Therefore, evidence of PW.2 does not support the prosecution case that at the time of trap, accused has demanded the bribe amount and has accepted the same. Though this witness is cross-examined for the prosecution the witness has denied his statement as per Ex.P.6, P.7 and P.8 and has also denied that he has paid the tainted currency notes to the accused and he kept the notes in the left side pocket of his shirt and that he has pointed out the accused to Lokayukta police and told that the accused accepted tainted currency notes and has also denied that after the hand 38 Spl.C.No.150/2011 wash the accused took out the tainted notes from the left side pocket of shirt and produced before the Investigating Officer etc. Therefore, evidence of PW.2 complainant does not help the prosecution to prove the demand and acceptance of bribe amount by the accused at the time of trap.
27. The prosecution case would mainly rely on the shadow witness who is PW.1. PW.1 in his evidence has stated that in Goraguntepalya while the complainant was driving tempo traveler he was sitting in the behind seat and complainant stopped the vehicle after seeing the accused and then he went to the accused and then accused came back along with the complainant and enquired about the PW.1 who was inside the vehicle and then complainant and accused went near the interceptor vehicle and there they talked for a while and accused asked whether money is brought and then complainant gave amount to the accused and he counted it and then kept it in his pocket and then complainant flashed the 39 Spl.C.No.150/2011 signal. Admittedly, complainant was sitting in the tempo traveler vehicle. In the cross-examination PW.1 has clearly stated that he was seated just behind the seat of the driver of tempo traveler vehicle and that PW.2 was driving the vehicle and parked vehicle at a distance of about 300 meters away from the interceptor vehicle and PW.2 got down from the tempo traveler and PW1 remained inside that vehicle and PW.2 went near the interceptor vehicle and he could not hear the conversation between PW.2 and the accused. He has stated that when he reached near the interceptor vehicle Lokayukta Police staff were counting the money. Therefore, though he has stated that amount was paid by the complainant to the accused and accused received the same and then kept in the pocket, this witness PW.1 was not accompanying the complainant, but he was sitting in the tempo traveler which was parked at the distance of about 300 meters from the interceptor vehicle as stated by PW.1. In such condition it is difficult for the PW.1 to see the accused counting the notes and 40 Spl.C.No.150/2011 keeping it in the pocket from a distance of 300 meters. PW.5 in his cross-examination has clearly admitted that when the complainant went near tempo traveler he was at the distance of about 20 feet and at that time near tempo traveler many people were moving. It is a busy area wherein the trap is done and according to the PW.1 he was sitting in the tempo traveler and accused received the amount near the interceptor vehicle. The complainant has not supported the case of the prosecution and has stated that Thirumalaiah has asked him to give the amount to the constable but he asked him to keep it in the rear seat of the interceptor vehicle. There is no other evidence before the court to state that they have seen the accused receiving the amount. According to PW.5 he was at a distance of 20 feet of tempo traveler. PW.5 has not stated that he has seen the accused receiving the amount. Even the other witnesses have not stated that they have seen the accused taking the amount. PW.6 and 7 were also present at the spot and were checking the vehicles at the spot, but they have only 41 Spl.C.No.150/2011 stated that the driver of the TT got down from the vehicle and was talking with the accused and both of them went towards the TT vehicle and thereafter Lokayukta police came. Therefore, except the say of PW.1 that amount was given by complainant to the accused and accused received the same and counted it and then kept it in the pocket, there is no other evidence to show that the accused demanded and received the amount and kept it in the pocket.
28. PW.1 in his cross-examination has clearly stated that the conversation was not audible from the place in which he was sitting as the accused and the complainant were at a distance near the interceptor vehicle and the TT was parked at a distance of 300 meters from the interceptor vehicle. It is natural that the PW.1 could not hear the conversation between the complainant and the accused from that distance. Therefore, demand of bribe amount by the accused from the complainant at the time of the alleged trap is not established by 42 Spl.C.No.150/2011 any evidence. The evidence of PW.4 another panch witness also does not support the prosecution case. He has stated that when he went there, he found the accused seated in the traffic police vehicle and some currency notes were on the seat of that vehicle. Though witness is cross-examined he has denied the suggestion that the hands of the accused were washed in the solution and has also denied that he took out the tainted notes from the left side pocket of the shirt and gave statement as per Ex.P.13. The PW.5 Investigating Officer is also not an eye witness for demand and acceptance of the bribe amount by the accused, as, when PW.5 reached the spot after receiving the signal, complainant pointed out the accused as the person who received the bribe amount from the complainant. PW.2 complainant has stated that he has not given bribe amount to the accused and accused was checking the vehicles. Even PW.6 and 7 who were stated to be present at the spot and were inspecting the vehicles have also not stated that they 43 Spl.C.No.150/2011 have witnessed the accused demanding and receiving the bribe amount from the complainant.
29. On looking to the entire evidence, there is no direct evidence before the court to show the receipt of the tainted notes by the accused. Similarly, there is no evidence to show the demand of bribe amount by the accused at the time of trap. The conversation between the complainant and accused was not audible to PW.1 from the TT vehicle in which he was sitting and none of the other witnesses have stated about such demand of the bribe amount by the accused from the complainant and the electronic record produced by the prosecution is not admissible in evidence. Therefore, demand of the bribe amount by the accused at the time of trap and its acceptance are not established by any cogent evidence. Among panch witnesses PW.4 has not supported prosecution case. Though PW.1 has partly supported the prosecution case, his evidence standing alone does not prove the demand and 44 Spl.C.No.150/2011 acceptance of the tainted notes by the accused for the reasons stated above.
30. In the decision reported in (2011) 2 SCC (Cri)1010 = (2011) 6 SCC 450 State of Kerala and another Vs C.P. Rao the Hon'ble Supreme Court has held that mere recovery of tainted money, divorced from circumstances under which it is paid, is not sufficient to convict accused. It is also held that when there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on.
31. In another decision reported in 2012 (1) KCCR 414 R.Malini Vs State of Karnataka, Hon'ble High Court has held that; mere possession of the amount by the accused cannot be taken as receipt of the amount by 45 Spl.C.No.150/2011 the accused after demand made by him as the evidence of demand is totally lacking. It is also held that "It is not the passing of the money alone that establishes a Corruption charge because the gravemen of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount". It is also held in the decision that, In the absence of any evidence of demand and acceptance of the amount as illegal gratification -Mere acceptance of Money by the appellant will not be sufficient to fasten the guilt. In 2015 SCC Online SC 814 Sathyanarayana Murthy Vs District Inspector of Police and another Hon'ble Supreme Court has held that; suspicion, however grave, cannot take the place of proof - Thus, prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true. It is also held in the decision that "mere possession and 46 Spl.C.No.150/2011 recovery of currency notes from an accused without proof of demand would not establish an offence".
32. In another decision reported in 2015 AIR SCW 951 C. Sukumaran Vs State of Kerala, the Hon'ble Supreme Court has held that the demand of Illegal gratification by the accused is sine-qua-non for constituting the offences u/s.7 and 13 of the Prevention of Corruption Act. In 2013 (4) SCC 153 State of Punjab Vs Madhan Mohanlal Verma it is held that mere recovery of tainted notes is not enough, as there is necessity of demand for illegal gratification. In a decision of our Hon'ble High Court reported in 2008 (2) KCCR 985 State by Lokayukta police, Mandya Vs K.M.Gangadhar, it is held that 'Evidence on record brings out the fact of the currency notes being recovered from the pocket of the accused and his hands being tested positive, yet they themselves are not sufficient to hold that the accused 47 Spl.C.No.150/2011 demanded illegal gratification from the complainant and received the same'. In a decision reported in 2000 SCC (Cri) 878 Meena Vs State of Maharashtra, Hon'ble Supreme Court on different facts has held that; mere recovery of the currency note and positive result of the phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence - Charge must be proved beyond reasonable doubt.
33. On going through these decisions, in the light of the facts of the present case, there is absolutely no evidence to show demand of bribe by the accused from the complainant. Even there is no cogent evidence to prove the acceptance of bribe amount by the accused. The panch witnesses PWs 1 and 4 and complainant PW.2 and also the other two witnesses PWs 6 and PW.7 have not stated that the tainted notes have been 48 Spl.C.No.150/2011 recovered from the accused. Even otherwise, in view of the decisions cited above, unless there is a proof of demand of illegal gratification by the accused, mere recovery of the amount is not sufficient to hold that the accused demanded illegal gratification from the complainant and received the same. Though it is stated that the hand wash of the accused had turned to pink colour, showing that the accused has touched the notes, as held in the decision cited above, mere touching of the currency notes by the accused would not be sufficient and on the basis of inference, the guilt cannot be proved.
34. For all these reasons, prosecution has failed to prove the demand of bribe by the accused, which is an essential requirement to constitute the offence u/s.7 and 13 of Prevention of Corruption Act. The prosecution has also failed to prove actual acceptance of tainted currency notes by the accused. The complainant himself has not supported the 49 Spl.C.No.150/2011 prosecution case with regard to acceptance of bribe amount by the accused. Though the PW.1 has stated that the accused has counted the notes and then kept it in his shirt pocket, PW.1 was sitting in the vehicle and was at a considerable distance from the place in which complainant and accused were standing. None of the other witnesses have stated about acceptance of the tainted notes by the accused from the complainant. Complainant has stated that he has kept notes in the rear seat of the interceptor vehicle. The PW.4 another panch witness has also stated the same. Even the PW.6 and 7 who have given statement u/s.164 of Cr.P.C. before Addl. Chief Metropolitan Magistrate as per Ex.P.29 and P.30, have not stated in their evidence or in this statement that they have seen the accused receiving the tainted notes. Therefore, receipt of the tainted notes by the accused as the illegal gratification for not registering the case against the complainant's vehicle is not established in this case. Even if the acceptance of tainted currency notes by the accused is 50 Spl.C.No.150/2011 accepted, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or the illegal gratification demanded by the accused. On considering all these aspects, prosecution has failed to prove the guilt of the accused for the offences punishable u/s.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act 1988, beyond reasonable doubt, by leading cogent, concrete and convincing evidence before this court. Hence accused is entitled to be acquitted. Accordingly, Point No.2 and 3 are answered in the negative.
35. Point No.4: For the discussion and findings on Point Nos. 1 to 3, accused deserves to be acquitted. Hence, 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 Sections 7, 13(1)(d) 51 Spl.C.No.150/2011 r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
M.O.1, 3 to 21 are ordered to be destroyed after the expiry of appeal period, as are worthless.
MO.2 is ordered to be confiscated to the state Government after the expiry of appeal period.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 31st day of August 2017) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
*** 52 Spl.C.No.150/2011 ANNEXURE List of witnesses examined for the prosecution:
PW.1 H.N.Raghu PW.2 M.Hyder PW.3 V.Ramaiah PW.4 B.M.Rajendra PW.5 Shivshankar PW.6 Muniraju D PW.7 Tirumalaiah H PW.8 Ravikumar
List of documents exhibited for the prosecution:
Ex.P.1 Currency detail sheet P.1(a) & 1 (b) signature of PW.4 P.1(c) & 1 (d) signature of PW.5 Ex.P.2 Pre-trap Mahazar P.2(a) Signature of PW.1 P.2(b) to 2(g) Signature of PW.2 P.2(h) to 2(m) Signature of PW.4 P.2 (n) Signature of PW.5 Ex.P.3 Trap Mahazar P.3 (a) Signature of PW.1 P.3 (b) to 3 (k) Signature of PW.2 P.3 (l) to 3(u) Signature of PW.4 P.3 (v) Signature of PW.5 Ex.P.4 Explanation P.4(a) Signature of PW.1 Ex.P.5 Complaint P.5(a) to 5 (b) Signature of PW.2 P.5(c) Endorsement of PW.5 P.5(d) Signature of PW.5 Ex.P.6 Portion of the statement of PW.2 Ex.P.7 Portion of the statement of PW.2 Ex.P.8 Portion of the statement of PW.2 Ex.P.9 Service particulars of accused 53 Spl.C.No.150/2011 P.9 (a) Signature of PW.3 Ex.P.10 Sanction order P.10 (a) Signature of PW.3 Ex.P.11 Acknowledgment letter P.11 (a) Signature of PW.4 Ex.P.12 Portion of statement of PW.4 Ex.P.13 Portion of statement of PW.4 Ex.P.14 FIR P.14 (a) Signature of Complainant P.14 (b) Signature of PW.5 Ex.P.15 Transcription of Voice Recorder Ex.P.16 Transcription sheet dtd.07.05.2011 Ex.P.17 Rough Sketch Ex.P.18 Report of CW.5 Ex.P.19 Transcription of Voice Recorder P.19 (a) Signature of PW.5 Ex.P.20 Transcription of button camera Ex.P.20(a) Signature of PW.5 Ex.P.21 Letter of CW.5 Ex.P.21 (a) Last receipt of 11.05.2011 produced by CW.5 Ex.P.22 Letter dtd.12.05.2011 with enclosures Ex.P.23 Covering letter with CDR Ex.P.24 Chemical Examination Report Ex.P.25 Sketch of the place of incident (PWD) Ex.P.26 Portion of statement Ex.P.27 Attested copy of SHD entry Ex.P.28 Statement u/s.164 of CPC of PW.2 Ex.P.29 Statement u/s.164 of CPC of PW.6 Ex.P.30 Statement u/s.164 of CPC of PW.7 54 Spl.C.No.150/2011
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
Ex.D.1 Deposition of H.N.Raghu
Ex.D.2 Deposition of M.Hyder in Enquiry
Material Objects marked by Prosecution :
MO-1 Metal seal
MO-2 Cash of Rs.1000/-
MO-3 Shirt of the accused
MO-4 Cover in which shirt was seized
MO-5 C.D. (Article No.11)
MO-6 Cover in which CD was seized
MO-7 C.D. (Article No.12)
MO-8 Cover in which CD was seized
MO-9 & 10 Bottles containing sample solutions
MO-11 C.D. (article No.3)
MO-12 C.D. (article No.4)
MO-13 C.D. (article No.5)
MO.14 to MO-16 Covers in containing three CDs
MO-17 Bottle (article no.6)
MO-18 Bottle (article no.7)
MO-19 Bottle (article no.7A)
MO-20 Bottle (article no.8)
MO-21 Bottle (article no.8A)
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
55 Spl.C.No.150/2011
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 offences
punishable under Sections 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.
M.O.1, 3 to 21 are ordered to be
destroyed after the expiry of appeal
period, as are worthless.
MO.2 is ordered to be confiscated to
the state Government after the expiry
of appeal period.
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
56 Spl.C.No.150/2011
57 Spl.C.No.150/2011
58 Spl.C.No.150/2011