Bangalore District Court
State Of Karnataka vs Sri.Puttaswamy.H.L on 28 January, 2019
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE (P.C.A.), BENGALURU (C.C.H.No.79)
Present: Sri.Ravindra Hegde, M.A., LL.M.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.A.), Bengaluru.
Dated: This the 28th day of January 2019
Special C.C. No.202/2013
Complainant: State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: Sri.Puttaswamy.H.L.
S/o Lakshmaiah,
Aged about 45 years,
Junior Engineer, Assistant Engineer's
Office, O & M-2, 9th South Sub-Division,
BESCOM, Kathriguppe, Bengaluru.
R/at No.1182, 5th A Main, 4th Cross,
Devarachikkanahalli, Bengaluru-560 078.
Permanent Address: Haluguna Grama,
J.C.Pura Post, Chikkanayakanahalli Tq,
Tumkur Dist.
(By Sri.C.G.Sundar, Advocate)
Date of commission of offence 22.08.2012
Date of report of occurrence 23.08.2012
Date of arrest of accused 24.08.2012
Date of release of accused on 27.08.2012
bail
Date of commencement of 24.07.2018
evidence
Date of closing of evidence 05.01.2019
Name of the complainant Shankar.T
2 Spl.C.C.202/2013
Offences complained of Under Sections 7, 13(1)(d)
r/w/s 13(2) of Prevention of
Corruption Act
Opinion of the Judge Acquitted
Date of Judgment 28.01.2019
JUDGMENT
1. The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against Accused for the offences punishable under Sections 7, 13(1)
(d) read with Section 13(2) of Prevention of Corruption Act, 1988.(In Short PC Act).
2. The brief facts of the prosecution case is as under:
Complainant- Shankar.T. S/o Thimmaiah is having house bearing No.235 in Bhuvaneshwarinagar, Banashankari Bengaluru, and had constructed three residential sheds in the said site and given them on rent. Accused-Puttaswamy, who is working as Junior Engineer in Assistant Engineer's Office, O&M-2, 9th South Sub-Division, BESCOM, Kathriguppe, Bengaluru had removed electricity meter of one vacant residential shed of complainant, four months prior to giving complaint. Complainant met accused and enquired him and accused informed that for not paying meter charges and rent, meter has been seized and he can take new electricity meter. When complainant insisted for an endorsement and questioned legality of act of accused, he has not responded and complainant gave application under RTI Act and also
3 Spl.C.C.202/2013 gave application to higher officers. Thereafter, complainant again met accused and requested him to fix the Meter and accused asked him to pay Rs.3,000/- to fix new Meter. As complainant was not interested in paying bribe, he went to Lokayuktha Office and met Lokayuktha police Inspector on 22.08.2012 and informed about the incident. Then Lokayuktha police Officer gave him Digital voice recorder and asked him to record the conversation with accused. Accordingly complainant on 23.08.2012 in the afternoon met accused along with voice recorder and talked to him. In his conversation, accused demanded Rs.5,000/- to do the work. Complainant recorded this conversation and then gave complaint to Lokayuktha police. On receiving the complaint, Lokayuktha police Inspector registered the case in Cr.No.71/2012 and submitted F.I.R. to the Court and secured two panch witnesses and then asked all of them including complainant to appear on 24.08.2012 at 6.15 A.M. On 24.08.2012 complainant and panch witnesses appeared before Lokayuktha police Inspector and he has made all arrangements to trap accused and trap team went to office of accused and complainant met accused and then, accused again demanded and received tainted notes of Rs.5,000/- from complainant and kept in table drawer. On complainant giving signal, trap team surrounded accused and trap procedures were followed and accused was arrested. Investigating Officer continued investigation and after 4 Spl.C.C.202/2013 completion of investigation and obtaining Prosecution Sanction Order, he filed charge sheet against accused.
3. Cognizance of offences is taken by this Court. Accused 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 him. Accused has pleaded not guilty and claimed to be tried.
4. In support of prosecution case, P.Ws.1 to 7 are examined. Exs.P1 to P.23 are marked. M.O.1 to M.O.11 are also marked.
5. After completion of prosecution evidence, statement of Accused, as required under Section 313 of Cr.P.C. is recorded. Accused has denied incriminating evidence appearing against him. Accused has not chosen to lead any defence evidence on his behalf. Ex.D.1 is marked for defence.
6. Heard the arguments and perused the records.
7. Now, Points that arise for my consideration are:-
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 servant, working as Junior Engineer in Assistant Engineer's Office, O & M-2, 9 th South Sub-Division,BESCOM,Kathriguppe, Bengaluru, 5 Spl.C.C.202/2013 has, on 23.08.2012 at 2.00 pm when complainant met him in connection with removal of electricity meter installed in residential shed of complainant in house No.235, Bhuvaneshwari Nagar, Banashankari Bengaluru, demanded bribe of Rs.5,000/- for installing electricity meter and on 24.08.2012 between 8.40 am to 9.10 am, in his office in Kathriguppa, Accused again demanded and then accepted Rs.5,000/- tainted notes from complainant as illegal gratification as a motive or reward to do official act or official favour to complainant and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act?
3) Whether the prosecution further proves beyond all reasonable doubt that Accused being public servant working as Junior Engineer in Assistant Engineer's Office, O&M-
2, 9th South Sub-Division, BESCOM, Kathriguppe, Bengaluru has on 24.08.2012 between 8.40 am to 9.10 a.m. in his office in Kathriguppe by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.5,000/- without public interest, from complainant and thereby committed offence of criminal misconduct under Section 13(1)(d) of PC Act, punishable under Section 13(2) of Prevention of Corruption Act?
4) What Order?
8. My findings on the above Points are:-
Point No.1 : In the Affirmative.
Point No.2 : In the Negative, Point No.3 : In the Negative, Point No.3 : As per Final Order, for the following:
6 Spl.C.C.202/2013 REASONS
9. Point No. 1 : The offences alleged against accused are under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. Since accused is a public servant working as Junior Engineer in BESCOM, sanction from competent authority is necessary to prosecute him. Prosecution Sanction Order is marked in this case as Ex.P12. R. Shridhar, the Director and Company Secretary of KPTCL at the relevant period has given evidence as P.W.6 in respect of Prosecution sanction order. He has stated that accused was employee of KPTCL and their office received a requisition from ADGP, Lokayuktha seeking Prosecution Sanction Order against accused from Board of KPTCL and along with requisition, investigation records were also produced. He has stated that the subject was placed with all annexures before 86 th Board meeting of KPTCL held on 28.06.2013 and on going through all the records, Board was convinced that there was substantial evidence against accused and then Board has authorised him to issue necessary Prosecution Sanction Order on behalf of Board and accordingly he has issued Prosecution Sanction Order as per Ex.P.12. In his cross-examination, his authority to sign Prosecution Sanction Order is questioned. He has denied that, Board has not passed any sanction order. He has admitted that the draft sanction order or Ex.P.12 were not placed again before the Board after the resolution.
7 Spl.C.C.202/2013
10. On going through the Prosecution Sanction Order- Ex.P.12 and the evidence of P.W.6, it is clear that, KPTCL Board has gone through the investigation records and passed resolution to accord sanction to prosecute accused for the offences under Prevention of Corruption Act and authorised P.W.6 to issue Prosecution Sanction Order and accordingly he has issued the same. Authority of the Board to issue Prosecution Sanction Order is not disputed. Since P.W.6 is a Director and Company Secretary of the KPTCL Board, he is said to have signed the Prosecution Sanction Order. In this case, earlier accused had filed application for discharge on the ground of invalid Prosecution Sanction Order. That application has been dismissed by holding that Prosecution Sanction Order is valid. Authority of the Board as well as P.W.6 to accord Prosecution Sanction Order is upheld by this Court. Therefore authority of P.W.6 cannot be disputed again. P.W.6 has clearly stated that Board has gone through the investigation records and authorised him to issue order and he has issued Ex.P.12. Therefore Prosecution Sanction Order issued as per Ex.P.12, on the basis of resolution of the Board of Directors of KPTCL is valid. Accordingly, Point No.1 is answered in the Affirmative.
11. Point No.2 & 3:-Since these Points are inter-linked with each other, they are taken together for discussion to avoid repetition.
12. To prove the charge against Accused for offences under Sections 7, 13(1)(d) read with Section 13(2) of 8 Spl.C.C.202/2013 Prevention of Corruption Act, prosecution has examined seven witnesses as P.Ws.1 to 7. P.W.1-Shankar.T is the complainant. P.W.2-Gopalakrishna.R. is the shadow witness. P.W.3-Lakshman is brother of P.W.1 and is said to be owner of the house of which electricity meter was removed. P.W.4-Shivasharana is higher officer of accused who is said to have identified voice and visuals of accused. P.W.5-C.K.Devaraj is Junior Engineer working in the office of accused and is said to be present when complainant met accused on the day of trap. P.W.6- R.Shridhar is Prosecution Sanctioning Officer, P.W.7- P.Narasimhamurthy is the Lokayuktha police Inspector and Investigating Officer in this case.
13. On behalf of prosecution, documents at Exs.P1 to P.23 are marked. Ex.P1 is complaint. Ex.P.16 is F.I.R. The paper showing number of currency notes is marked as Ex.P.8. Pre- trap Mahazar and Trap Mahazar are respectively marked as Ex.P.2 & 3. Attested copy of application given by P.W.1 to BESCOM office are marked as Ex.P.4 to 6. The spot sketch is marked as Ex.P.7. Copy of sale deed of P.W.3 is marked as Ex.P.9. Copy of attendance register of accused is marked as Ex.P.10. Copy of RR Book in respect of removal of meter is marked as Ex.P.11. Prosecution Sanction Order is marked as Ex.P.12. The acknowledgment given by P.W.2 on receipt of metal seal is marked as Ex.P.13. The transcriptions of recordings in the voice recorder issued by complainant is marked as Ex.P.17 and transcriptions of recordings in the 9 Spl.C.C.202/2013 button camera recorded at the time of trap is marked as Ex.P.18. Sample seal is marked as Ex.P.19. Written explanation given by accused is marked as Ex.P.20. Service particulars and work details of accused are marked as Ex.P.21 and 22. Ex.P.23 is Chemical Examination Report. The portion of statement of P.W.2 denied by him in evidence are marked as Ex.P.14 and
15. M.O.1 to 11 are also marked for the prosecution. M.O.1 is the seized cash of Rs.5,000/-.M.O.2 is metal seal. The bottles containing solution taken at different stages of proceedings are marked M.O.3 to 7. M.O.8 to 11 are C.D's.
14. In the cross-examination of P.W.4, the records pertaining to disconnection of electricity meter, RR No.S9LG5692 standing in the name of Narasimhamurthy and application given for re-connection are confronted are marked as Ex.D.1.
15. Prosecution case stems from the complaint given as per Ex.P.1 by P.W.1, alleging demand of bribe of Rs.5,000/- by accused for fixing electricity meter in the house of P.W.1, in place of earlier meter which was removed by accused. As per the prosecution case when P.W.1 enquired accused about removal of Meter illegally, he demanded Rs.3,000/- bribe for fixing new meter on 22.08.2012 and on 23.08.2012 he demanded Rs.5,000/-, P.W.1 recorded the conversation with accused on 23.08.2012 and then gave complaint. On receiving complaint, P.W.7 registered the case against accused and secured P.W.2 and C.W.3 as panch witnesses. Since, PW1 10 Spl.C.C.202/2013 informed that Accuse will be available in the morning hours, P.W.7 asked Complainant and panch witnesses to come in the morning of 24.08.2012. Accordingly, they came to office of PW.7 on 24.08.2012 at 6.15 a.m. P.W.7 introduced complainant to them and they have ascertained veracity of complaint. Complainant produced Rs.5,000/- in denomination of Rs.1000x2 and Rs.500x6 and number of notes were noted as per Ex.P8 and signatures were taken. Phenolphthalein powder was smeared on the notes and thereafter, C.W.3 has verified the notes and kept tainted notes in left side shirt pocket of P.W.1 and thereafter, sodium carbonate solution was prepared and hands of C.W.3 were washed in solution and the solution which turned to pink colour, was seized in bottle. Digital Voice recorder produced by complainant was played and recordings were transmitted to C.D. as per M.O.8 and recordings were transcribed on paper as per Ex.P.17 and signatures were taken. P.W.1 was instructed to meet accused and enquire about his work and to give tainted notes only in case of demand and then to give signal by wiping his head with hand. P.W.2 was instructed to follow P.W.1 as a shadow witness and to watch the happenings and to report later. Pre- trap Mahazar was prepared as per Ex.P.2 and Signatures were taken. Button camera was given to P.W.1 with instructions to switch on the same while meeting accused.
16. Thereafter, trap team proceeded to the office of accused and after reminding the instructions, P.W.1 was sent 11 Spl.C.C.202/2013 to meet accused at about 8.40.a.m and P.W.2 followed him. After sometime complainant made a phone call to P.W.7 and informed that accused has not come and will come at around 9.00 a.m. P.W.1 and 2 have waited for accused. After some time, accused came and entered his office and sat in his chair. Another Junior Engineer-P.W.5 was also sitting in his chair and a public person was also sitting in front of accused. P.W.1 met accused and talked to him and enquired about his work and accused gave signal to give bribe amount and then, P.W.1 took out tainted notes and gave to accused. He took the tainted notes from his left hand and then took it in his right hand and kept it in his right side table drawer. P.W.1 by asking accused to complete his work, came out and flashed signal. The shadow witness P.W.2 was standing near the door and was observing the happenings. Immediately P.W.7 and his team came near P.W.1 and he took them inside the office of accused and shown accused as the person who demanded and received tainted notes from him. Sodium carbonate solution was prepared in two bowls and after taking sample, fingers of both hands of accused were immersed in the solution separately and the solution turned to light pink colour and it was seized in bottles. On questioning, accused informed that he has kept the amount in Table drawer. Then P.W.2 took out tainted notes from table drawer of accused and on verifying notes, it tallied with number of notes noted in Ex.P.8 and then amount was kept it in a cover and was seized. When P.W.7 12 Spl.C.C.202/2013 enquired accused about the file of complainant, he produced applications given by complainant by taking out from his table drawer and produced RR Book and also application given to Junior Engineer under RTI Act and documents were taken to the custody of P.W.7 and later he took attested copies of the same as per Ex.P.4,5,6,10 and 11. Thereafter, they came to Lokayuktha Office for following further procedure along with accused. In Lokayuktha Office, P.W.1 produced button camera and it was played and then contents were transcribed on paper as per Ex.P.18. P.W.4 has identified accused and his voice in video recordings. The recordings in button camera were transmitted to CD and CD was seized and is produced as M.O.10. On questioning, accused gave written explanation as per Ex.P.20, which was found not acceptable. Thereafter, accused was arrested by following procedure and produced before court. Trap Mahazar was prepared as per Ex.P.3 and signatures were taken. P.W.7 continued investigation and after completion of investigation, he prepared final report and after obtaining Prosecution Sanction Order as per Ex.P.12, he has filed charge sheet.
17. In order to bring home the guilt of accused for the offences under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being public servant has demanded and accepted illegal gratification. Such demand and acceptance should be for doing some official act or doing official favour to complainant.
13 Spl.C.C.202/2013 On proof of demand and acceptance, presumption can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7 of P.C.Act. When acceptance of illegal gratification by accused is proved, even offence of criminal misconduct under Section 13(1)(d) will also be established.
18. Learned Counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court reported in 2015 SCC Online 814, (P.Satyanarayana Murthy vs Dist. Inspector of Police and another) in Para No.21 and 22, the Hon'ble Supreme Court has held as under:
"21. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and
(ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail.
Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."
In the light of this decision, the case of the prosecution and defence of accused and evidence lead for the prosecution are to be considered.
14 Spl.C.C.202/2013
19. To prove demand of bribe by accused, prosecution is relying on he evidence of P.W.1 and on the recordings in voice recorder produced by complainant at the time of giving complaint, which was transmitted to C.D and seized in this case as M.O.8. The transcription of these recordings is also produced as Ex.P.17. Even at the time of trap, the button camera was given to complainant and recordings in the button camera was transmitted to C.D and produced as M.O.10 in this case. The transcriptions of recordings in button camera is also produced as per Ex.P.18. Recordings of both these C.D.'s were said to have been played before P.W.4, who is higher officer of accused. P.W.4 has stated that, he has identified voice and visual of accused in video recording, but he could not identify voice in audio recording. Therefore, even P.W.4 has not identified voice of accused in M.O.8-C.D. P.W.4 has identified the visuals and voice of accused only in M.O.10-C.D. Moreover, P.W.4 is not an expert in voice identification. Admittedly, original device like digital voice recorder and button camera in which these recordings were made are not seized and produced before court. M.O.8 and 10 C.D.s are transmissions from original device and Ex.P.17 and 18 are transcriptions of recordings. In respect of M.O.8 and 10 and also transrptions Ex.P.17 and 18, no certificate under section 65B of Indian Evidence Act is obtained and produced before Court.
20. Learned counsel for accused has cited a decision 15 Spl.C.C.202/2013 reported in 2014 AIR SCW 5695(Anvar P.V -Vs- P.K.Basheer and others). In para No.22 of this decision, Hon'ble Supreme Court has held as under;
22. ...An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, Chip, etc., the same shall be accompanied by the certificate in term of section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record,is inadmissable."
As original device in which these recordings were made are not produced before the court and CDs and transcriptions as M.O.8 and 10 and Ex.P.17 and 18 are not supported by certificate under Section 65B of Indian Evidence Act, they are not admissible in evidence and will not help the prosecution.
21. Apart from this, as per the prosecution case, P.W.1 came and informed about demand of bribe to Lokayaukta Police Inspector and he gave voice recorder and asked complainant to record the conversation with accused to confirm the demand of bribe. Case was not registered immediately. Thereafter P.W.1 is said to have met accused on 23.08.2012 and then recorded the conversation, in which accused demanded Rs.5,000/- and produced the digital voice recorder before P.W.7 and gave complaint. Learned counsel 16 Spl.C.C.202/2013 for accused has drawn my attention to a decision reported in 2012 (3) KCCR 1738 ( Ramesh Desai and Another Vs. The State of Karnataka by Raichur Lokayuktha P.S.). In this decision, Hon'ble High Court has held that 'Investigating Officer should not associate himself with complainant and assist the complainant to record conversation'. It is also held that 'giving tape recorder to record conversation with regard to demand of bribe amount does not constitute enquiry, rather it amounts to collecting the evidence against person accused of and before registering F.I.R. the Investigating Officer cannot proceed to collect evidence'. These recordings as per M.O.8 and transcriptions at Ex.P17, if considered as preliminary enquiry, then they cannot be considered as evidence in this case. Looking from any angle, these recordings and transcriptions are not helpful to the prosecution and prosecution case is to be proved in the absence of these materials.
22. Complainant-P.W.1 would be only witness to speak about demand of bribe by accused before giving complaint. In Ex.P.1 it is mentioned that P.W.1 is owning house No.235, Bhuvaneshwarinagar and he has constructed three residential sheds and gave it on rent and one shed was vacant and electricity meter of vacant shed was removed by accused and regarding this, when P.W.1 approached accused for re-fixing the meter, accused demanded bribe. P.W.1 has also stated 17 Spl.C.C.202/2013 the same in his evidence. He has stated that, when he met accused on 20.08.2012, accused shown three fingers and then he assumed that accused is demanding Rs.3,000/-. Accused showing his fingers and thereby signaling complainant to pay Rs.3,000/- is not mentioned in complaint. When exactly meter was disconnected and removed is not mentioned in the complaint or evidence. As per Ex.P.1, about 20 days prior to giving complaint, accused had demanded Rs.3,000/-. But according to P.W.1, on 20.08.2012 such demand through signal was made. It is stated by P.W.1 that on 22.08.2012, he met Lokayuktha police and on the same day voice recorder was given to him and on 23.08.2012 he recorded the conversation. This is stated even in complaint. In the entire complaint and in the evidence of P.W.1 Meter number which was removed by accused is not stated. In the cross-examination, P.W.1 has admitted that he had not given any application for reconnection of Meter. He has identified his application as per Ex.P.4 to 6 which are the applications given under RTI Act and are complaints given to officers about illegal removal of Meter. They are not applications given for reconnection. Moreover, Meter number mentioned in Ex.P.4 to 6 is S9LG5692. P.W.1 has admitted that Lokayuktha police have secured Ex.P.4 to 6 from office of accused. He has admitted that he had not given any application for re- installing of Meter and also that he had not produced any documents to show that this Meter belonged to him.
18 Spl.C.C.202/2013
23. On looking to the evidence of P.W.1 and documents as per Ex.P.4 to 6, it is clear that P.W.1 had given applications in respect of removal of Meter No.S9LG5692 and had expressed his grievance and sought clarifications. There is absolutely no document to show that this Meter was standing in the name of P.W.1. P.W.1 has stated that he is owning House No.235 and he had constructed the residential sheds and rented the portion to the tenants and one Meter of vacant shed was removed by accused and in respect of same accused has demanded bribe. Complainant has not produced any document along with his complaint to show that he is owner of house No.235 and the said house was having electricity connection and electricity Meter was removed by accused. In the evidence of P.W.4, documents pertaining to electricity Meter S9LG5692 are confronted and are marked as Ex.D.1. Ex.D.1 show that meter S9LG5692 is standing in the name of Narasimhamurthy and it is connected to house no.137, Ittamadu, Bengaluru. There are no documents to show that Meter No.S9LG5692 was installed in the house No.235 of complainant and was disconnected by accused as contended by P.W.1. Even in the course of investigation, no such documents are collected to connect this Meter with House No.235. There are no materials before the Court to connect Meter number S9LG5692 of Narasimhamurthy with complainant. Brother of P.W.1 by name Lakshman is 19 Spl.C.C.202/2013 examined as P.W.3. He has stated that he is owner of property in site No.39 of Ittamadu Village, which is now called as Bhuvaneshwari Nagar and his brother Shankar-P.W.1 is residing in the said house. A copy of his sale deed is produced as Ex.P.9. He has also not stated the Electricity Meter number of the said house. Evidence of P.W.3 and Ex.P.9, only show the purchase of property bearing site No.39 by P.W.3 from Smt.Shashikala. It does not show that P.W.3 is owner of house No.235 and electricity Meter No.S9LG5692 was installed to the said house. Ex.P.4 to 6 which are even admitted to have been given by P.W.1, to BESCOM office contain particular Meter Number and as per Ex.D.1, this Meter is standing in the name of Narasimhamurthy and is not standing in the name of P.W.1, 3 or his vender Smt.Shashikala. Apart from this P.W.1 has no where stated that house No.235 was purchased by his brother P.W.3 and is standing in the name of P.W.3.
24. Under these circumstances, only on the oral evidence of P.W.1, case of the prosecution about accused removing electricity meter installed in one residential shed in house No.235 and accused demanding bribe, does not get established. Prosecution has failed to establish that house No.235 was belonging to P.W.1 or P.W.3 and it was having a electricity Meter and the said Meter was removed by Accused. Ex.P.4 to 6 does not show that Meter was standing in the name of complainant or it was installed in house No.235.
20 Spl.C.C.202/2013 There is no evidence to show that meter fixed to house No.235 was removed by accused. Hence, accused demanding bribe from P.W.1 for re-fixing of Meter which was removed is not established by the prosecution. In letter of Executive Engineer of BESCOM as per Ex.P.22, it has been mentioned that house No.235 was supplied electricity with meter number BS9LG692 and electricity connection was disconnected and Meter was removed on 04.09.2010 for non payment of dues of Rs.722/- and even agreement was cancelled on 27.01.2011 and the meter was standing in the name of Smt.Shashikala. Therefore, Electricity Meter Number of House No.235 is different than the Meter Number mentioned in Ex.P. 4 to 6 and Meter standing in the name of Shashikala who is vendor of P.W.3 as per Ex.P.9 was disconnected and removed in 2010 itself, which is about two years prior to Ex.P.1 complaint. Even application was not given by P.W.1 for reconnection as admitted by him. Therefore, pendency of any work of complainant to be attended by accused is not established. When no work of complainant is pending before accused, there would be no occasion for accused to demand bribe. For all these reasons, evidence of P.W.1, 3 and the documents produced, does not help the prosecution to prove alleged demand of bribe by accused prior to giving of complaint. At the time of trap, when complainant met accused there was no conversation of demanding bribe. Even P.W.2-Shadow witness has not stated 21 Spl.C.C.202/2013 about accused demanding bribe at the time of Trap. Therefore accused demanding bribe at the time of trap or prior to giving of complaint is not established.
25. When demand of bribe is not established, acceptance of amount and recovery of amount from accused has no relevance. Even otherwise, P.W.2-shadow witness was sent with complainant to observe the happenings and to report later. He has stated that when P.W.1 went to give amount to accused, he refused to receive the same by making hand signal and still complainant kept the amount in his hand and that, he has not seen what accused has done with that amount. Though P.W.2 is cross-examined by learned Public prosecutor, witness has denied that he has seen the accused receiving tainted notes from complainant. Therefore, independent shadow witness P.W.2 has not stated about accused voluntarily accepting tainted notes from complainant. Evidence of complainant about accused receiving tainted notes from him and keeping it in Table drawer is not corroborated by evidence of shadow witness. Moreover, demand of bribe itself is not established in this case. Pendency of any official act to be done by accused is also not established in this case. Therefore, even if acceptance of tainted notes by accused is accepted on the basis of evidence of P.W.1 and hand wash of accused turning to pink colour, mere acceptance of tainted notes does not prove the guilt of accused. Even evidence of another Junior Engineer P.W.5, who 22 Spl.C.C.202/2013 was present in the office of accused when P.W..1 came there, does not contain any incriminating material against accused.
26. In a decision reported in 2006 (KCCR) 1445 (State of Karnataka Vs. K.T.Hanumanthaiah), Hon'ble High Court has held that, 'In case of offence under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act there should be independent corroboration in proving the case of demand and acceptance of bribe.'
27. In the present case, evidence of shadow witness P.W.2 and another witness P.W.5 does not corroborate with evidence of P.W.1 in any aspect. On looking to the evidence of prosecution, demand of bribe by accused to do any official act or favour to the complainant is not established. Even acceptance of tainted notes by accused is not established. When demand and acceptance are not established even presumption U/s 20 of PC Act cannot be drawn. For all these reasons, prosecution has failed to prove that accused has demanded and accepted illegal gratification from complainant and committed the offence under Section 7 of Prevention of Corruption Act. Similarly, any criminal misconduct of accused by receiving any pecuniary advantage without any public interest is also not made out. Therefore, prosecution has failed to prove the guilt of accused beyond all reasonable doubt. Accordingly, points Nos.2 and 3 are answered in the Negative.
23 Spl.C.C.202/2013
28. Point No.4.:- For the discussion on Point Nos.1 to 3, Accused is to be acquitted and hence, following Order is passed:
ORDER Accused is found not guilty.
Acting under Section 235(1) of Cr.P.C. Accused is acquitted from the charges levelled against him for the offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
The bail bond executed by Accused and his surety stands cancelled.
M.O.1-Cash of Rs.5,000/- is ordered to be confiscated to the State, after expiry of appeal period.
M.O.2 Metal seal be returned to Lokayukta Police, after expiry of appeal period.
M.Os.3 to 11 are ordered to be destroyed, after expiry of appeal period, as they are worthless.
(Dictated to the Stenographer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the28 th day of January 2019).
(Ravindra Hegde), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru 24 Spl.C.C.202/2013 ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - Shankar.T P.W.2 - Gopalakrishna.R P.W.3 - Lakshman P.W.4 - Shivasharana P.W.5 - C.K.Devaraj P.W.6 - R.Shridhar P.W.7 -P.Narasimhamurthy List of documents exhibited for the prosecution:
Ex.P1 - Complaint
Ex.P.1(a) - Sign of P.W.1
Ex.P.1(b) - Sign of P.W.7
Ex.P2 - Pre-trap Mahazar
Ex.P.2(a) - Sign of P.W.1
Ex.P.2(b) - Sign of P.W.2
Ex.P.2(c) - Sign of P.W.7
Ex.P3 - Trap Mahazar
Ex.P.3(a) - Sign of P.W.1
Ex.P.3(b) - Sign of P.W.2
Ex.P.3(c) - Sign of P.W.7
Ex.P4 to 6 - Attested copy of application given by
P.W.1 to the BESCOM office
Ex.P7 - Spot sketch
Ex.P8 - The paper showing number of currency
notes
Ex.P.8(a) - Sign of P.W.2
Ex.P.8(b) - Sign of P.W.2
Ex.P9 - Copy of sale deed of P.W.3
Ex.P.9(a) - Sign of P.W.3
Ex.P10 - Copy of attendance register of accused
Ex.P.10(a) - Sign of P.W.4
Ex.P11 - Copy of RR Book in respect of removal
of meter
Ex.P.11(a) - Sign of P.W.4
Ex.P12 - Prosecution Sanction Order
25 Spl.C.C.202/2013
Ex.P.12(a) - Sign of P.W.6
Ex.P13 - The acknowledgment given by P.W.2
on receiving metal seal
Ex.P.13(a) - Sign of P.W.2
Ex.P14 & 15 - Portions of statement of P.W.2
denied by him in evidence
Ex.P16 - F.I.R
Ex.P.16(a) - Sign of P.W.7
Ex.P17 - The transcriptions of recordings in the
voice recorder.
Ex.P.17(a) - Sign of P.W.7
Ex.P18 - Transcriptions of recordings in the
button camera at the time of trap
Ex.P.18(a) - Sign of P.W.7
Ex.P19 - Sample seal
Ex.P.19(a) - Sign of P.W.7
Ex.P.20 - Written explanation given by accused
Ex.P.20(a) - Sign of P.W.7
Ex.P.20(b) - Sign of P.W.3
Ex.P21 - Service particulars of accused
Ex.P21(a) - Sign of P.W.7
Ex.P22 - Work details of accused
Ex.P.22(a) - Sign of P.W.7
Ex.P23 - Chemical Examination Report
Evidence adduced on behalf of the defence:
NIL Documents marked on behalf of the defence:
Ex.D.1 - Copy of documents pertaining to electricity meter, RR No.S9LG5692 26 Spl.C.C.202/2013 Material Objects marked by Prosecution:
M.O.1 - Cash of Rs.5,000/- M.O.1(a) - Cover M.O.2 - Metal Seal
M.O.3 to 7 - The bottles containing solution take at different stages of proceedings M.O.8 to 11 - C.D's M.O.8(a) to M.O.11(a) - Covers (Ravindra Hegde), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), ***