Bangalore District Court
Lokayukta Police Inspector vs R.Gopalakrishna on 18 July, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 18th day of July 2018
Spl.C.C. No.66/2014
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: R.Gopalakrishna,
S/o Late B.Ramaiah,
Aged about 46 years,
'D' Group Employee,
Borewell Division,
Mines and Geological Department,
13th Floor, V.V.Tower,
Bengaluru.
(By Sri. G.J. - Advocate.)
Date of commission of
offence 15-05-2013
2 Spl.C.No.66/2014
Date of report of occurrence 20-05-2013
Date of arrest of accused: 20-5-2013
[
Date of release of accused 22-05-2013
on bail:
Date of commencement 20-06-2016
of evidence
Date of closing of 27-02-2018
evidence
Name of the complainant Sri. N.Laxmikanthachari
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: 18-07-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru has filed this charge sheet against accused for the offences punishable under Sections 7, 13(1)(d) r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. Brief facts of the prosecution case is as under:-
Accused - R.Gopalakrishna S/o.D.Ramaiah is working as 'D' Group Employee in Mines and Geological Department, Bengaluru and is a public servant. Complainant - Laxmikanthachari who is doing electrical contract work had taken contract work of getting electricity connection to borewell 3 Spl.C.No.66/2014 dug in land of Bachchanna. As permission from Mines and Geology Department was also necessary, on behalf of Bachchanna, complainant gave application on 15.05.2013 along with fee of Rs.500/- and documents to accused, who is working in Mines and Geology Department. After receiving this application, accused demanded Rs.5,000/- as bribe to do the work. Then, complainant approached Lokayukta Police on 18.05.2013 and they gave him voice recorder and along with voice recorder complainant came to office of accused and talked to him wherein again accused demanded bribe of Rs.5,000/- and then brought it down to Rs.4,500/-. Thereafter, complainant along with voice recorder gave complaint on 20.05.2013. On receiving complaint, Lokayukta Police Inspector registered the case in Crime No.33/2013 and submitted F.I.R. to the Court. Lokayukta Police Inspector secured panchas and made all arrangements to trap the accused and on the same day between 1.25 p.m. to 2.00 p.m. in the office of Mines and Geology Department in 13th Floor in V.V.Tower, when accused received tainted notes of Rs.4,500/-
from complainant, he was caught. Tainted notes were seized from accused. Accused was arrested and produced before the Court. Investigating Officer continued the investigation and 4 Spl.C.No.66/2014 after completion of investigation and after securing prosecution sanction order, 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 the prosecution case PWs 1 to 6 are examined. Documents as per Exs.P.1 to P.18 are marked and MOs 1 to 11 are also marked.
5. After completion of prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and accused has denied incriminating evidence appearing against him. Accused has not chosen to lead any defence evidence on his behalf.
6. Heard the arguments and perused the records.
7. Now, points that arise for my consideration are:-
POINTS
1) Whether prosecution proves that there is valid sanction to prosecute accused ?5 Spl.C.No.66/2014
2) Whether prosecution proves beyond all reasonable doubt that accused being public servant working as 'D' Group Employee in Mines and Geology Department, V.V.Tower, Bengaluru, has has on 15.5.2013 demanded bribe of Rs.5,000/- from Complainant for getting permission for obtaining electricity connection to the borewell of C.W.12 and on 18.05.2013 he again reiterated his demand for bribe of Rs.5,000/- and then brought it down to Rs.4,500/- and on 20.05.2013 between 1.25 p.m. to 2 p.m. in the office of Mines and Geology Department in 13th Floor, V V Tower, Bangalore, he again demanded and received Rs.4,500/- 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 u/s 7 of Prevention of Corruption Act?
3) Whether prosecution further proves beyond all reasonable doubt that accused being public servant working as 'D' Group Employee in Mines and Geology Department, has on 20.05.2013 between 1.25 p.m. to 2 p.m. in the Office of Mines and Geology Department in 13th Floor, V.V.Tower, Bengaluru has by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.4,500/- without public interest from complainant and thereby committed offence of criminal misconduct which is an offence u/s 13(1)(d) of Prevention of Corruption Act, punishable u/s 13 (2) of Prevention of Corruption Act?6 Spl.C.No.66/2014
4) What order ?
8. My findings on the above points are :-
Point No. 1 : In the Affirmative.
Point No. 2 : In the Negative.
Point No. 3 : In the Negative.
Point No.4 : As per final order, for the following:
REASONS
9. Point No.1: Offences alleged against accused are under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act. Accused is working as 'D' Group employee in Mines and Geology Department, Bengaluru. Therefore, accused is a public servant and sanction from competent authority is necessary to prosecute him. To prove prosecution sanction order P.W.2-N.Krishnappa - Chief Executive Officer, Bengaluru Rural Zilla Panchayath has given evidence. In his evidence he has stated that accused was working as 'D' Group employee in Mines and Geology Department on deputation and was working in Zilla Panchayath. He has stated that he has received requisition from ADGP, Karnataka Lokayuktha along with copies of investigation records like FIR, chemical examination report, statement of witnesses, etc., and has stated that he has gone through the records and applied his mind and found prima facie grounds to proceed against accused and accordingly, he has issued Prosecution Sanction 7 Spl.C.No.66/2014 Order as per Ex.P.5. In his cross-examination, he has admitted that generally 'D' Group employees are not authorised to receive application from public and to dispose them and they have to work as per the instructions of their higher officers. He has denied that he has issued sanction order mechanically.
10. On going through Ex.P.5 and the evidence of P.W.2, it is clear that accused was working as 'D' Group employee and P.W.2 was competent sanctioning authority to accused. In Ex.P.5 and in the evidence of P.W.3, it is clearly stated that, on going through the investigation records which were placed before P.W.2, he has applied his mind and then issued Prosecution Sanction Order. There is no material to show that prosecution sanction order is not proper. Moreover, on the basis of the same materials this court has taken cognizance of the offence and has framed charge. Therefore, prosecution is successful in proving that there is valid Prosecution Sanction Order against accused. Accordingly, point No.1 is answered in affirmative.
11. Point Nos. 2 & 3 : Since both these points are interlinked 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) r/w/s 13(2) of Prevention of 8 Spl.C.No.66/2014 Corruption Act, prosecution has examined 6 witnesses as P.Ws. 1 to 6. P.W.1 - N. Laxmikanthachari is the complainant. Shadow witness- N.Deviprasad is examined as P.W.3. P.W.2 - N.Krishnappa is the Sanctioning Authority. P.W.4 - K.M.Nagabhushan is the higher officer of accused who has given report regarding voice identification. P.W.5 - Sanjeevarayappa and P.W.6 - Poovaiah are the Investigating Officers.
13. On behalf of prosecution, documents at Exs.P.1 to P.18 are marked. Ex.P.1 is complaint and Ex.P.14 is the FIR. Ex.P.2 is sheet containing details of currency notes. The Pre- trap mahazar is marked as Ex.P.3. Trap Mahazar is marked as Ex.P.4. Prosecution Sanction Order is marked as Ex.P.5. Transcription of the recordings in voice recorder produced by complainant at the time of giving complaint is marked as Ex.P.11. Transcriptions of recordings in button camera and digital voice recorder at the time of trap is marked as Ex.P.6. Ex.P.7 and Ex.P.15 are sample seal and Acknowledgment for seal. The explanation given by accused is marked as Ex.P.8. Report submitted by P.W.3 on voice identification is marked as Ex.P.9. Rough sketch of the spot is marked as Ex.P.10 and sketch given by Engineer is marked as Ex.P.16. Copy of Attendance Register is marked as Ex.P.12 and copy of file 9 Spl.C.No.66/2014 pertaining to work of complainant is marked as Ex.P.13. Chemical examination report is marked as Ex.P.17 and work details of accused is marked as Ex.P.18. M.Os.1 to 11 are also marked for the prosecution. Tainted notes are marked as M.O.1. Pant of accused is marked as M.O.2. M.Os 3 to 7 are bottles containing solutions taken at different stages of proceedings. M.Os. 8 to 11 are C.Ds.
14. As per the materials placed by prosecution, P.W.1- complainant gave Ex.P.1-Complaint before P.W.5-Investigating Officer stating that on behalf of C.W.12- Bachanna, he had given application for obtaining electricity connection to his borewell and as permission was to be obtained from Mines and Geology Department, along with necessary documents and fee he had given application to accused who is a 'D' Group employee in Mines and Geology Department and accused demanded bribe of Rs.5,000/- and then complainant approached Lokayukta Police and they gave him voice recorder and he met accused again on 18.5.2013 and recorded conversation in which accused asked complainant to bring Rs.4,500/- On receiving complaint, P.W.5 registered the case and secured P.W.3 and C.W.3-H.C.Siddaiah as panch witnesses and introduced them to complainant-P.W.1 and they ascertained veracity of complaint and P.W.1 produced 10 Spl.C.No.66/2014 Rs.4,500/- in denomination of Rs.500x9 and number of notes were noted on Ex.P.2 and phenolphthalein powder was applied to the notes and C.W.3 after verifying again has kept tainted notes in left side shirt pocket of P.W.1 and thereafter his hands were washed in sodium carbonate solution and solution turned to pink colour and it was seized in a bottle. Voice recorder produced by P.W.1 was played and then transmitted to C.D. and contents were transcribed as per Ex.P.11 and original C.D. was seized as per M.O.8 by taking copy. Pre-trap proceedings were video-graphed and later transmitted to C.D. P.W.1 was asked to meet accused and to enquire about his work and then to give tainted notes only in case of demand and to flash signal by folding left sleeves of his shirt and was given pen camera and voice recorder with instruction to switch-on the same while meeting accused. P.W.3 was asked to accompany P.W.1 as shadow witness and to observe the activities and to report later. Pre-Trap-Mahazar as per Ex.P.3 was prepared and signatures were taken.
15. It is further case of the prosecution that, after pre- trap mahazar, trap team proceeded towards office of accused in 13th floor of V.V.Tower and vehicle was stopped at distance and P.W.1 and 3 were sent to office of accused, after reminding instructions given earlier and by switching on button 11 Spl.C.No.66/2014 camera and digital voice recorder. Other members of trap team were watching them from distance. P.W. 1 and 3 went inside office of accused and P.W.1 met accused and talked to him and Accused by stating that procedure has changed, has demanded more amount and P.W.1 by stating that he will give more amount later, has given tainted notes and accused received it and kept in his pant pocket. P.W.3 by pretending to be person who had come to enquire about permission for digging bore well has observed the happenings. At about 2 p.m., after giving tainted notes to accused, P.W.1 gave signal and immediately P.W.5 and his staff and another panch witness came there and surrounded accused and followed further procedure of trap. In sodium carbonate solution, both hands of accused were washed and solution turned to pink colour and it was seized in bottles. Tainted notes, which were in front right side pant pocket of accused, were seized. Documents pertaining to work of P.W.1 were secured from P.W.4-higher officer of accused and then got copied and attested as per Ex.P.13. Thereafter, they came to Lokayuktha office and pant of accused was also seized. Button camera and C.D. given to P.W.1 were played before panchas and P.W.4 and P.W.4 has identified voice of accused and gave report as per Ex.P.9. The recordings in pen camera and voice recorder were transcribed 12 Spl.C.No.66/2014 as per Ex.P.6 and transmitted to C.D. and seized as M.O.10. On questioning, accused gave written explanation as per Ex.P.8 and as it was not acceptable, accused was arrested and later produced before the Court. Trap proceedings were vedeographed and then transmitted to C.D. and trap mahazar as per Ex.P.4 was prepared and signature of witnesses were taken. P.W.5 continued further investigation and on his transfer, P.W.6 completed investigation and after receiving Prosecution Sanction Order as per Ex.P.5, he has filed charge sheet.
16. P.W.1-Complainant has stated about prosecution case in his chief examination. He approaching accused along with application for permission to take electricity connection to the borewell of C.W.12 and accused demanding Rs.5,000/- and then bringing it down to Rs.4500/-, etc., are all stated by him. He has stated that after pre-trap proceedings, they went to office of accused in V.V.Tower and P.W.3 was following him. He has stated that accused told him that rules have changed and amount already fixed is not sufficient and asked to pay more and P.W.1 told him that he will pay remaining amount later and then accused received tainted notes from P.W.1 from is right hand and kept it in his right side pocket and asked him to come after half an hour. He has stated that after giving 13 Spl.C.No.66/2014 signal, trap team came there and on questioning, accused admitted receipt of Rs.4,500/- and took out the same from pant pocket and handed over to police and numbers of tainted notes tallied with Ex.P.2 and then hands of accused were washed. He has also stated about further procedures that are followed, including drawing trap Mahazar. P.W.1 has also stated later that Lokayukta Police has taken out tainted notes from pant pocket of accused through P.W.3. In his cross-examination, P.W.1 has stated that he is doing electrical contract work from 15 years and he is Class-I Contractor. He has admitted that accused is a 'D' Group employee and usually he sits outside the office. He admitted that there is separate staff to receive application in office and admitted that Board issues license and C.R.O., V.C. and Dy.S.P are the members of Board who take decision. He has admitted that, in C.D. containing visuals of he meeting accused at the time of trap, visual of accused accepting amount and keeping in his pant pocket is not found. He has admitted that along with accused he went to computer room and denied that without knowledge of accused he inserted money in his pant pocket.
17. P.W.3-shadow witness has also stated the prosecution case in his evidence till he accompanying complainant as a shadow witness and they visiting office of 14 Spl.C.No.66/2014 accused. He has stated that in the office of accused, P.W.1 and accused together went to computer room, which is behind the cabin of accused, and after 10 minutes P.W.1 came out and gave signal by folding his left sleeves of shirt and thereafter Lokayukta Police officials came inside and complainant informed that he has given tainted notes to accused. He has stated that thereafter he checked right side front pant pocket of accused and took out Rs.4,500/- tainted notes. He has also stated about further procedures followed including drawing of trap mahazar and about seizing of articles and voice identification by P.W.4, etc., In his cross-examination, P.W.3 has stated that he do not know who was in tappal section in the office of accused. He has stated that, P.W.1 and accused went to computer room and after five minutes, they came out.
18. P.W.4 is higher officer of accused before whom audio and video recordings were stated to have been played. He has stated in his evidence that voice recorder was played before him and he was asked to identify the voice, but there was some confusion and he informed that one voice may be that of accused-Gopalakrishna. He has stated that in the video recordings, his office is seen, but no face is appearing and has stated that he has given report as per Ex.P.9. In his cross- examination, he has admitted that accused was only 'D' Group 15 Spl.C.No.66/2014 employee and he used to sit on chair outside the office and applications are received in tappal section and admitted that licence applied by P.W.1 was to be approved by Board consisting of himself, Superintendent, Executive Engineer of B.B.M.P., CEO and admitted that accused had no role to play in issuing licence. He admitted that he cannot definitely say that the voice heard is that of accused.
19. P.W.5 and P.W.6 are Investigating Officers and have stated about investigation done by them and also about filing charge sheet. In his cross-examination, P.W.5 has denied that while meeting him P.W.1 had brought a conversation recorded in mobile. He has stated that in respect of audio and video clippings produced in this case, he has not produced certificate under Section 65B of Indian Evidence Act. He has stated that he has not subjected voice to spectrographic test to identify voice of accused. He has admitted that file pertaining to P.W.1 was received in office of accused on the date of trap and admitted that file was not with accused and it was with case worker -Laxminarayana and he was not present in seat at the time of trap. He has denied that complainant himself has inserted tainted notes in the pocket of accused. P.W.6 in his cross-examination has admitted that sample voice of accused is 16 Spl.C.No.66/2014 not taken in the course of investigation and voice recording was not sent to F.S.L.
20. 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. Prosecution must also prove that demand and acceptance of illegal gratification is for doing official act or for doing official favour. 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. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established. In various decisions of Hon'ble Supreme Court, it has been held that, demand of illegal gratification by accused is sine-qua-non for constituting offence under Sections 7 and 13(1)(d) of Prevention of Corruption Act. Therefore, without proving demand of illegal gratification by accused, prosecution case cannot proceed further.
21. To prove demand of bribe by accused prior to giving of complaint, prosecution is relying on the evidence of P.W.1 and also recordings in voice recorder stated to have been produced by complainant while giving complaint as per 17 Spl.C.No.66/2014 Ex.P.1. In Ex.P.1, it has been stated that on 15.5.2013 accused demanded Rs.5000/- and then on 18.5.2013, P.W.1 recorded conversation with accused in voice recorder, in which he brought-down bribe amount to 4,500/-. P.W.1 has also stated about demand of bribe amount. However, P.W.1 in his evidence has stated that when he met accused, he demanded Rs.5,000/- and that was recorded in his mobile and as this conversation in mobile was not audible, Police Inspector gave him voice recorder. This is not stated in complaint and is even denied by P.W.5. Further, P.W.1 has stated that accused had demanded Rs.5,000/- and then he brought it down to Rs.4,500/- for doing work. Conversation of P.W.1 with accused is stated to have been recorded in voice recorder and then transmitted to C.D. as per M.O.8 and recordings are even stated to have been transcribed during pre-trap proceedings and transcription is marked as Ex.P.11. Even at the time of trap, accused is stated to have demanded amount and then received Rs.4,500/- tainted notes. Even to prove demand of bribe by accused at the time of trap, there are audio and video recordings made in digital voice recorder and button camera which are stated to have been transmitted to C.D. during trap proceedings as per M.O.10 and recordings are transcribed as per Ex.P.6.
18 Spl.C.No.66/201422. Therefore, apart from the evidence of P.W.1, prosecution is mainly relying on audio recordings and its transcriptions at Ex.P.7 and M.O.8 which are pertaining to demand before giving complaint and Ex.P.6 and M.O.10 which are pertaining to recordings at the time of trap. P.W.5 in his evidence has clearly admitted that he has not obtained any certificate as required under Section 65B of Indian Evidence Act. P.W.5 has even admitted in his cross-examination that he has not subjected voice to spectrographic test to identify voice of accused. P.W.6 has admitted that no sample voice of accused was taken in the course of investigation and voice recordings were not sent to F.S.L. to ascertain voice of accused. C.D.s M.O.8 and 10 to which these recordings were transmitted were played before P.W.4, who is higher officer of accused and he has given report as per Ex.P.9. In this report it is mentioned that, he has heard audio recordings and seen video recordings and identified voice of accused. However, P.W.4 has stated in his evidence that there was some confusion regarding identification of voice of accused and he has opined that voice may be that of accused and also stated that in video recordings, no face was seen and only office of accused was seen. Moreover, P.W.4 is not expert in identifying voice. Therefore, evidence of P.W.4 and his report at Ex.P.9 will not 19 Spl.C.No.66/2014 help the prosecution to prove that voice which was heard by P.W.4 and was recorded in C.D.- M.O.8 and 10 is that of accused. As admitted by P.W.6, no sample voice of accused was taken and recordings were not sent to F.S.L. for getting expert's opinion. Therefore, there is no evidence before the Court to prove that one voice heard in M.Os 8 and 10 is that of accused. Apart from this, as stated above, in respect of these M.Os 8 and 10 and also transcriptions at Ex.P.11 and P.6, no certificate under Section 65B of Indian Evidence Act is obtained and produced. Voice recorder and pen camera in which these recordings were made are not produced before the Court.
23. In a decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has held that "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". As original device in which recordings are made is not produced before the court and CDs and transcriptions which are produced are not supported by certificate under Section 65B of Indian Evidence Act, these documents at Ex.P.11 and P.6 and M.Os.8 and 10 are not admissible in evidence and will not help the prosecution.
20 Spl.C.No.66/201424. Since, Ex.P.11 and P.6 and M.Os.8 and 10 are not helpful in the case, prosecution have to prove demand of bribe amount by other evidence. P.W.1 has stated prosecution case in his evidence. In his chief examination, he has stated that he is Electrical contractor from 20 years. In his cross-examination, he has stated that he is doing electrical contract work from 15 years and is a Class-I Contractor. C.W.12- Bachchanna is stated to have entrusted work of getting electricity connection to his borewell to P.W.1 for Rs.35,000/-. As permission from Mines and Geological Department was necessary, by taking signature of C.W.12, complainant is said to have given application with requisition and also legal fee of Rs.500/-. As per Ex.P1, this application is given on 15.5.2013. P.W.5 in his cross-examination has stated that application of P.W.1 had come to office of accused only on the date of trap. Application and documents are marked as Ex.P.13. Though accused is mentioned in Ex.P1 as Clerk in Mines and Geological Department, accused is only a 'D' Group employee. Even P.Ws.1, 4 and 5 have stated that accused is 'D' Group employee. Work particulars of accused in Ex.P.18 also show that accused was earlier daily wage employee and then he was taken as 'D' Group employee. As a 'D' Group employee, accused had no role to play in giving permission for obtaining 21 Spl.C.No.66/2014 electricity connection to borewell of C.W.12. This is admitted by P.W.4, who is higher officer of accused and also Member of the Board, which gives such permission. P.W.1 has also admitted that accused is only a 'D' Group employee who usually sits outside the office and there is separate staff to receive applications and Laxminarayana - Case Worker was dealing with issuing of licence. P.W.1 has even admitted that Board issues licence and CRO, VC, Dy.S.P. are members of the Board. Since accused was only a 'D' Group employee, he had no connection with work of complainant which was to be attended by case worker and licence or permission was to be accorded by Board. P.W.1 cannot be considered as ignorant of these facts as he is class-I electrical contractor and doing contract work from about 15 -20 years. It is nowhere stated in the complaint that P.W.1 went to office and gave application for obtaining electricity connection to borewell and accused met him and promised to get the work, etc., or he has induced complainant to pay bribe by stating that he will get the work done through higher officer. Under such circumstances accused, who is 'D' Group employee demanding bribe of Rs.5,000/- or Rs.4,500/- from Class-I Contractor-P.W.1 for getting licence for electricity connection to borewell which is beyond the scope of his work, is highly doubtful. As an 22 Spl.C.No.66/2014 electrical contractor from 15 to 20 years, P.W.1 is an expert in the field and would be knowing procedure of giving application and then getting a licence. Under such circumstances, P.W.1 approaching a 'D' Group employee with application for getting licence is highly unbelievable and doubtful. Except evidence of P.W.1, there is no other evidence to prove the alleged demand of bribe by accused.
25. When demand of bribe amount is not established, acceptance of amount and recovery of amount from accused has no relevance. Even otherwise, on looking to the work of accused as 'D' Group employee, possibility of P.W.1 approaching accused and accused demanding amount of Rs.5,000/- or 4,500/- is doubtful. As per Section 7 of the Prevention of Corruption Act, the demand of illegal gratification must be as a motive or reward for doing any official act or for showing some official favour to the person. In this case, accused being a 'D' Group employee had no capacity to do any official work of complainant and was also not in a position to do any official favour to complainant. Accused was not incharge of the work which was to be attended. The issuing of licence by Mines and Geological Department is work of Board as admitted by P.W.1 and P.W.4. Accused had no role to play in issuing of licence. Therefore, there was no official work of complainant 23 Spl.C.No.66/2014 pending before accused. Therefore, pendency of any official act or possibility of accused doing any official favour to P.W.1 is not present in this case. When there is no official act or official favour to be done by accused, there is no possibility of accused demanding bribe from complainant. Therefore, accused demanding illegal gratification from complainant is not established in this case.
26. Coming to acceptance of bribe amount, P.W.1 has stated that when he went and met accused, accused told him that work cannot be done with that much amount and then complainant promised to pay more amount later and then accused received tainted notes of Rs.4,500/- and kept in his pant pocket. This evidence of P.W.1 is not corroborated by evidence of shadow witness -P.W.3. Purpose of sending shadow witness is for corroboration of evidence of complainant. In this case P.W.3 has stated that accused and complainant together went to computer room which is just behind cabin of accused and after ten minutes complainant came out and gave signal. Evidence before the court shows that accused who was 'D' Group employee was not given any table and not given any cabin. Even otherwise, when complainant and accused went inside computer room, what transpired inside the room is not seen by P.W.3. Therefore, P.W.3 has not seen complainant 24 Spl.C.No.66/2014 giving and accused receiving tainted notes and then keeping it in his pant pocket. As admitted by P.W.1, in the recordings of button camera, accused receiving amount is not recorded. Even P.W.4 has stated that in video recorder only name board of his office is seen and no face is found. Therefore, alleged video recordings are not only not admissible in evidence, but also does not show accused receiving tainted notes. Evidence of P.W.3 does not corroborate with evidence of P.W.1. Therefore, accused accepting tainted notes of Rs.4,500/-as illegal gratification from P.W.1 is not established.
27. 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."
28. In another decision reported in (2011) 6 SCC 450 (State of Kerala and another Vs C.P. Rao) Hon'ble Supreme Court has 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, 25 Spl.C.No.66/2014 therefore, evidence of complainant cannot be relied on."
29. In 2016 (1) KCCR 815 (R.Srinivasan and another Vs. State of Police Inspector Lokayuktha, Bangalore) it is held that, "In a trap case complainant will normally be an interested person in the sense he would be interested in getting the accused trapped since accused is stated to have not acted legally, according to him. However, his evidence needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance."
In the present case, the evidence of shadow witness - P.W.3 does not corroborate with the evidence of P.W.1.
30. Though tainted notes are stated to have been recovered from accused and hand wash of accused in sodium carbonate solution is stated to have turned to pink colour as stated by P.Ws 1, 3 and 5, mere recovery of tainted notes does not prove guilt of accused. P.W.1 in his chief-evidence has stated that after getting the signal, trap team came inside and then accused was questioned and he admitted that he received Rs.4,500/- from complainant and took out amount from his pant pocket and handed over to police. If before hand wash, accused has taken out tainted notes from his pocket and gave 26 Spl.C.No.66/2014 it to police as stated by P.W.1, then hand wash turning to pink colour will not have any relevance. Even otherwise, without proving demand, acceptance and recovery will not prove guilt of accused.
31. In 2013 SAR (Criminal) 945 (State of Punjab Vs. Madan Mohan Lal Verma), in para No.7 the Hon'ble Supreme Court has held as under : -
"The law on the issue is well settled that demand of illegal gratification is sine- qua-non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification."
Therefore, even if recovery of amount from the accused is proved, guilt of accused will not be established.
32. On looking to entire evidence led by the prosecution, demand of bribe amount by accused to do any official act of complainant or to do an official favour to complainant itself is not established in this case. When 27 Spl.C.No.66/2014 demand of bribe to do an official act itself is not established, question of accused accepting illegal gratification does not arise. Though there is a presumption U/s.20 of Prevention of Corruption Act, only on proof of demand and acceptance of amount, presumption can be drawn that such receipt of gratification is as a motive or reward as mentioned under Section 7. When demand and acceptance are not proved, even the presumption cannot be drawn.
33. 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.
34. POINT No.4:- For the discussion and findings on Point Nos.1 to 3, accused is to be acquitted. Hence, following order is passed:
ORDER Accused is found not guilty.28 Spl.C.No.66/2014
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences 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 Cash of Rs.4,500/- is ordered to be confiscated to the State after expiry of appeal period.
M.O.2 to 11 are ordered to be destroyed after expiry of appeal period, as they are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed by me and then pronounced in the open court on this the 18th day of July 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 N.Lakshmikanthachari PW.2 N.Krishnappa PW.3 Deviprasad.N. PW.4 K.M.Nagabhushan PW.5 Sanjeevararayappa PW.6 C.W. Poovaiah
List of documents exhibited for the prosecution:
Ex.P.1 Complaint
P.1 (a) Signature of P.W.1
P.1 (b) Signature of P.W.5
29 Spl.C.No.66/2014
Ex.P.2 Sheet containing details of currency notes
P.2 (a) & (b) Signature of P.W.3
P.2 (c) and (d) Signature of P.W.5
Ex.P.3 Pre-Trap mahazar
P.3(a) Signatures of P.W.1
P.3(b) Signatures of P.W.3
P.3(c) Signatures of P.W.5
Ex.P.4 Trap Mahazar
P.4 (a) Signatures of P.W.1
P.4 (b) Signatures of P.W.3
Ex.P.4(c) Signature of P.W.5
Ex.P.5 Prosecution Sanction Order
Ex.P.5(a) Signature of P.W.2
Ex.P.6 Transcriptions of the recordings in the
button camera and digital voice recorder Ex.P.6(a) Signature of P.W.3 Ex.P.6(b) Signature of P.W.5 Ex.P.7 Sample seal Ex.P.7(a) Signature of P.W.3 Ex.P.7(b) Signature of P.W.5.
Ex.P.8 Explanation given by accused
Ex.P.8(a) Signature of P.W.3
Ex.P.8(b) Signature of P.W. 5
Ex.P.9 Report submitted by Nagabhushan
identifying the voice of accused
Ex.P.9(a) Signature of P.W.3
Ex.P.9(b) Signature of P.W.4
Ex.P.9(c) Signature of P.W.5
Ex.P.10 Rough sketch of the spot
Ex.P.10(a) Signature of P.W.3
Ex.P.10(b) Signature of P.W.5
Ex.P.11 Transcription of recordings in voice
recorder produced by complainant along
with complaint
Ex.P.11(a) Signature of P.W.3
Ex.P.11(b) Signature of P.W.5
Ex.P.12 Copy of the Attendance Register.
30 Spl.C.No.66/2014
Ex.P.12(a) Signature of P.W.4
Ex.P.13 Copy of file of work of complainant
Ex.P.13(a) Signature of P.W.4
Ex.P.14 FIR
Ex.P.14(a) Signature of P.W.5
Ex.P.15 Acknowledgment for seal
Ex.P.16 Sketch given by Engineer.
Ex.P.17 Chemical Examination Report.
Ex.P.17(a) Signature of P.W.5
Ex.P.18 Work details of accused
Ex.P.18(a) Signature of Pw.5
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
- Nil -
Material Objects marked by Prosecution :
MO-1 Cash of Rs.4,500/-.
MO-2 (a Pant
MO-2(a) Cover
MO-3 to 7 Bottles containing solution
MO-8 to 11 C.Ds
MO-8(a) to 11(a) Covers
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
31 Spl.C.No.66/2014
Orders pronounced in the open Court
vide separate Judgment :
ORDER
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
32 Spl.C.No.66/2014