Bangalore District Court
State By Karnataka vs R.Shivamurthy Naika on 18 February, 2022
1
Spl.C.C.No.5/2015
KABC010004322015
IN THE COURT OF LXXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL COURT FOR TRYING OFFENCES
UNDER THE PREVENTION OF
CORRUPTION ACT, AT BENGALURU CITY
(CCH-78)
DATED THIS THE 18 th DAY OF FEBRUARY 2022
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No. 5/2015
COMPLAINANT: State by Karnataka
Lokayuktha Police.
(Rep. by Public
Prosecutor)
/VS/
ACCUSED: 1. R.Shivamurthy Naika,
S/o Rudra Naika,
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Spl.C.C.No.5/2015
Aged about 28 years,
Civil Police Constable,
P.C.No.645,
Mangalore West Traffic
Police Station,
Mangalore,
Mangalore Town.
Presently r/at Hulikatte
Post, Davanagere Taluk
& District.
2. B.M.Rajashekaraiah,
S/o D.M.Chandraiah,
Aged about 50 years,
Fruit Merchant,
Chikkabantanahalli
Sokke Hobli,
Jagaluru Taluk,
Davanagere District.
3. A.L.Lakshmikantha,
A.P.C., S/o Late
Anjanappa, DRR Police
Constable, CAR North.
R/at Malignahalli,
Devanahalli Taluk,
Bengaluru District.
4. Dilipraj Urs,
CPC No.402,
S/o Nanjaraja Urs,
Aged 27 years,
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Spl.C.C.No.5/2015
Civil Police Constrable,
Soorathkal P.S.,
Mangalore.
R/at Near Dakshina
Kannada Nirmithi
Kendra, Srinivasa
Nagara, Soorathkal,
Mangalore City.
5. S.R.Yogesh,
C.P.C.674,
S/o Rajaiah,
Aged 26 years,
Panamburu Police
Station, Mangalore.
6.Zakir Hussain,
C.P.C.2090,
S/o Babusab,
Aged 30 years,
Yeshawanthapura P.S.,
Bengaluru City.
7.H.J.Harish,
C.P.C. 793,
S/o Late Javaraiah,
Aged 31 years,
Moodabidare P.S.,
Mangalore City.
R/at Kandali Village &
Post, Hassan TQ.
Hassan District.
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Spl.C.C.No.5/2015
8.K.Murthy,
C.P.C.563, S/o Kalaiah,
Aged 30 years,
Pandeshwara P.S.,
Mangalore City.
R/at Kedaga Village,
Saligrama Hobli,
K.R.Nagara Taluk,
Mysore District.
(Rep by Sri. VA,
Adv.for
A1, Sri.KND,Adv.for
A2,
Sri.PNH, Adv.for A3,
Sri.KSPK, Adv. for A4
to 8)
TABULATION OF EVENTS
01. Date of commision of offence: 12-12-2011
02. Date of report of offences to
the Police Station (FIR date) : 07-02-2012
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : COD(S.E.),
Halsoorgate P.S.
06. Nature of offence
complained : U/S.Secs. 465, 468,
417 & 120B of IPC
r/w Sec.7,13(1)(a) &
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Spl.C.C.No.5/2015
Sec.13(2) of the
Prevention of
Corruption Act,
1988.
07. Date of submission of
chargesheet : 24-12-2014
08. Date of commencement of
recording of evidence : 01-04-2019
09. Date of closing of evidenc : 31-01-2020
10. Date of judgment : 18-02-2022
11. Opinion of the Judge in
respect of the offences : Accused are
acquitted.
*****
JU DG ME N T
1. The Dy.S.P., CID, Bengaluru has filed the charge sheet against the accused Nos.1 to 8 for the offences punishable under Secs. 465, 468, 417 and 120B of IPC r/w Sec.7, 13(1)(a) and Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The nub of the prosecution case is that the 6 Spl.C.C.No.5/2015 accused Nos.1 and 3 who being the public servants, in particular accused Nos. 1 and 3 were Police Constables working at C.A.R. (City Armed Reserve), North, Bengaluru and in the year 2003, the 3 rd accused was deputed on OOD to the Police Headquarters Office situated at Nrupathunga Road, Bengaluru to work in Computer Section. These two Police Constables including the 2nd accused entered into an agreement with accused Nos.4 to 8 and hatched a criminal conspiracy for issuing 4 fake/created transfer orders in respect of accused Nos.4 to 8. It is also the allegation of the prosecution that accused Nos.1 to 3 forged the signatures of the higher police officers in the said transfer orders with a dishonest 7 Spl.C.C.No.5/2015 intention to extract money from accused Nos.4 to 8 and also had an intention to deceive accused Nos.4 to 8 and demanded them bribe amount of Rs. 40,000/- each and directed accused Nos. 4 to 8 to deposit the same in to the S.B.Account of the 1 st accused with State Bank of India, Belthangady Branch and in furtherance of the same, accused Nos.4 to 8 deposited the demanded amounts and the accused Nos.1 and 3 being public servants and accused No.2 demanded illegal gratification of Rs. 40,000/- each from accused Nos.4 to 8 in order to show them official favour for issuance of fake transfer orders making them to believe that they are genuine transfer orders, to their place of choice and also accepted the bribe amount, whereby 8 Spl.C.C.No.5/2015 have committed the above stated offences.
3. After securing the presence of the accused Nos. 1 to 8 before this Court, they were duly enlarged on regular bail. As per the mandatory compliance, prosecution papers were supplied to them and all the accused moved an application under Sec.227 r/w 239 of the Cr.P.C. seeking for their discharge from the case before framing charges. Those applications came to be rejected by this Court on merits, so as there was prima-facie materials to frame charges against all the accused, charges were duly framed and read over to them in their known language, for which each of the accused pleaded not guilty and claimed to be tried. In order to bring home the 9 Spl.C.C.No.5/2015 guilt of all the accused, the prosecution in all examined PWs.1 to 32, exhibits at Ex.P.1 to P.82 came to be marked and Mos.1 to 5 got identified. As there was incriminating evidence found against all the accused, statements as contemplated under Sec.313 of Cr.P.C. came to be recorded, to which all the accused denied the same and chose not to lead any defence evidence.
4. Heard the arguments on both sides.
5. The fresh points that crop up for my consideration are as follows:
1).Whether the prosecution proves beyond all reasonable doubt that accused Nos.1 and 3 being the police constables, one working with C.A.R. (North), 10 Spl.C.C.No.5/2015 Bengaluru in the year 2003, the accused No.3 was deputed on OOD basis to the Police Headquarters Office situated at Nrupathunga Road, Bengaluru to work in Computer Section and in the year 2011 accused Nos.1 to 3 entered into an agreement for committing criminal conspiracy for creating fake transfer orders which contained the forged signatures of higher Police Officers by receiving illegal gratification of Rs. 40,000/- each from accused Nos.4 to 8 who proposed to get their transfers to their place of choice and thereby have committed the offence punishable under Sec.120B of Indian Penal Code ?
2) Whether the prosecution further proves beyond all
reasonable doubt that accused Nos.1 to 3 in furtherance of their criminal conspiracy created fake transfer orders of accused Nos.4 to 8 by forging the signatures of top brass police officers of the Bengaluru Police Head Quarters, D.G. & I.G. office, Bengaluru 11 Spl.C.C.No.5/2015 with an intention to cause injury to the reputation of the said office, thereby have committed the offence punishable under Sec.465 of I.P.C.?
3).Whether the prosecution further proves beyond all
reasonable doubt that accused Nos.1 to 3 in furtherance of their intention and criminal conspiracy had a dishonest intention to extract money from accused Nos.4 to 8 for the purpose of cheating and deceiving, whereby have committed the offence punishable under Sec.468 of I.P.C.?
4).Whether the prosecution further proves beyond all
reasonable doubt that accused Nos.1 to 3 in furtherance of their mens-rea /intention had directed accused Nos.4 to 8 to deposit demanded bribe amount of Rs.
40,000/- each to the 1 st accused S.B. Account bearing No.30781221483 at Belthangady Branch, State Bank of India and 12 Spl.C.C.No.5/2015 as per his direction, accused Nos.1, 4, 6 and 7 deposited Rs.
40,000/- each and 5 th and 8 th accused Rs. 20,000/- each on various dates appearing in the bank account extract, whereby cheated them and have committed the offence punishable under Sec.417 of IPC?
5).Whether the prosecution further proves beyond all
reasonable doubt that accused Nos.1 and 3 when being public servants have demanded illegal gratification of Rs. 40,000/- each from accused Nos.4 to 8 in order to show official favour in issuing transfer orders to their place of choice have accepted the bribe amount which was deposited in the said S.B. Account of the 1 st accused with Belthangady Branch, State Bank of India, and you have accepted the same and transferred a sum of Rs.20,000/- to the S.B. Account of the 2 nd accused with SBI, Vinobhanagar Branch, Davanagere, to his account No.1513101013483 and 13 Spl.C.C.No.5/2015 have committed the offences punishable under Sec.7 of the P.C. Act 1988?
6).Whether the prosecution further proves beyond all reasonable doubt that the
accused Nos.1 and 3 when being public servants having demanded and accepted illegal gratification for showing an official favour in issuing fake transfer orders to accused Nos.4 to 8 have committed criminal misconduct which is punishable under Secs.7, 13(1)(a) r/w Sec.13(2) of P.C.Act, 1988?
7).Whether the prosecution further proves beyond all
reasonable doubt that accused Nos.4 to 8 when being knowing fully well that abetting other public servants for doing any illegal act for their benefit or for the benefit of general public by misusing the official position is an illegal act punishable under law, have involved in commission of offence punishable under Sec.10 of Prevention of 14 Spl.C.C.No.5/2015 Corruption Act, 1988?
8). What order?
6. After carefully going through the materials available on record and also considering the facts and circumstances of the case, my findings to the above points are as under:
POINTS NO.1 to 7: In the negative.
POINT NO.8: As per my final order for the following:
REASONS POINTS NO.1 TO 7:
7. I have chosen to take combined discussion of all the above said aspects for the simple reason that the allegation of the prosecution is not only inter-woven, but also badly jumbled-up. The allegation as narrated by the Dy.S.P., C.I.D. before the 15 Spl.C.C.No.5/2015 Court in his charge sheet is that the accused Nos. 4 to 8 are the Police Constables, they were in need of transfers to their place of choice, so all of them approached accused Nos.1 to 3, wherein accused Nos.1 and 3 were public servants and 2nd accused was a fruit merchant. So, it is the main allegation of PW. 1 that this 1st accused took lead role which was very badly supported by the accused No.3. The charge sheet allegations further says that 1st and 3rd accused in particular promised accused Nos.4 to 8 indirectly that they would get the transfer orders in their favour to their place of choice on each of these accused depositing a sum of Rs. 40,000/- with the 1st accused Savings Bank account which was maintained at 16 Spl.C.C.No.5/2015 Belthangady branch, State Bank of India.
8. The police Head Quarters, Nrupathunga Road, Bengaluru having noticed the fact that fake transfer orders have been issued then started finding as to who is responsible for the same. In that direction PW. 1 takes the responsibility of holding a mini enquiry to ascertain as to what exactly is the problem and who are responsible for forging the signatures of top brass Police Officers who are entrusted with signing the transfer order notifications. Before a complaint could be lodged, the PW. 1 claims to have held a preliminary enquiry. This act of PW. 1 and Ex.P. 11 to 13 was found fault with by accused Nos.1 and 3 on the ground that 17 Spl.C.C.No.5/2015 when no law has empowered PW. 1 to conduct an enquiry when he was not authorized to do this act, this PW. 1 has unilaterally issued Ex.P. 13.
9. The learned counsel for the 2nd accused also vehemently contended during his arguments that no written notice was caused to accused Nos.1 to 3 and they were not asked to give their explanation and PW. 1 himself does not know under which law or under what provisions of a particular law, this PW. 1 is said to have conducted the alleged preliminary enquiry. In this regard, according to me, the evidence of PW. 1 requires to be dispassionately looked into. This witness by name N.Rameshchandra who is the 18 Spl.C.C.No.5/2015 retired S.P. now, was a Dy.S.P., Special Enquiries, CID, Bengaluru at the relevant point of time. According to him, on 12-12- 2011, his S.P. issues a memo directing him to enquire with regard to the fake transfer orders issued by the Police Chief Office, Bengaluru and along with that memo also sent 18 pages documents which contained the names of various Police Constables who were transferred to their places of choice. According to PW. 1, he records the statement of Zakir Hussain, Yogesh, Shivamurthy Naik, Dilip Raj Urs and Murthy K. It is the evidence of PW. 1 that during his preliminary enquiry, those officials who supposed to have stated before him that by using the influence of the 1st accused they got transfers to their 19 Spl.C.C.No.5/2015 place of choice by depositing a sum of Rs. 40,000/- each to the bank account of the 1st accused. According to PW. 1, he also secured the presence of 1st accused and during his interrogation, the 1st accused supposed to have told him that he used to pay that amount to a person by name B.M.Rajashekaraiah by withdrawing that amount. Through this witness all those statements came to be marked. So, according to this witness, in his enquiry, it was revealed that accused Nos.1 to 3 by colluding with each other have created such forged transfer orders in respect of various Police Constables including accused Nos.4 to 8. According to PW. 1, on the strength of that memo, on 07-02-2012 he files a complaint before the Halasurgate 20 Spl.C.C.No.5/2015 Police Station, same is marked at Ex.P. 13 and the memo at Ex.P. 14.
10. On going through this brief examination-in-chief, two things are crystal clear that the 1st fact is that this PW. 1 acts as an enquiry officer holds a mini trial/enquiry and comes to the conclusion that it is the handy work of accused Nos.1 to 3. So, Ex.P. 13 and 14 came to be lodged. Now, the question is that, what is his basis to form an opinion that accused Nos.1 to 3 are responsible for issuing fake transfer orders. The examination-in-chief of PW. 1 highly banks upon the statements of some of the witnesses and accused themselves which are at Ex.P. 5 to 10, so, the million dollar question before this 21 Spl.C.C.No.5/2015 Court is that, how safe for PW. 1 to rely upon the self serving statements which have no sanctity or no evidentiary value attached to them in the eye of law.
11. At this juncture, it is apt to refer Ex.P. 13 which is the complaint given by PW. 1 and this was addressed by him to the Police Inspector, Ulsoorgate Police Station and some of the recitals urged in this complaint calls for minute scrutiny. In unnumbered para-2 of this document, there is a clear cut averment that accused Nos.1 to 3 have right royally involved in creating, forging signatures and issuing fake transfer orders in the police department circle. The said recitals found in Ex.P. 13 is extracted as below: 22
Spl.C.C.No.5/2015 " ವಚರಣ ಸಮಯದಲ ತಳದದ ಬಬದ ಅಬಶವವನಬದರ ಮಬಗಳಳರನಬದ ದವಣಗರ , ಮಮಸಳರದ ಜಲ ಮತದತ ಬಬಗಳಳರದ ನಗರಕಕ ಕಲವ ಪಲವಸ ಪವದಗಳದ ವರರವಣ ದ , ಬಯಸದದ ಇವರದಗಳಗ ಅನದಕಳಲ ಮಡಕಳಡಲದ ಶವಮಳತರ ನಯಕ ಮತದತ ಮತಳತಬಬ ವವ ಕತ ರಜಶವಖರಯವ ಎಬಬದವರದ ಸವರಕಳಬಡದ , ಪಲವಸ ಪವದಗಳಬದ ತಲ ರಳ .40,000/- ಗಳನದ ನ ಶವಮಳತರನಯಕ ನದ ಹಳಬದರದವ ಎಸ . ಬ . ಐ . ಬವಬ ಕನ ಬಳತಬ ಗಡ ಶಖಯ ಖತ ಸಬ .30781221483 ಗ ಹಣ ದ , ಅದರಬತ ತದಬಬದವಬತ ತಳಸದದ ವರರವಣ ಇಚಚಸ ದ ಪಲವಸ ಸಬಬ ಬದಗಳದ ನಬತರ ಅವರದಗಳದ ಬಯಸದ ಜಗಗಳಗ ವರರವಣ ಆದವಶವನದ ನ ಖಳಟಟಯ ಗ ಸಸಷಟಸ , ಮವಲಧಕರಗಳ ಸಹಯ ನಕಲದ ಮಡ ಸದರ ಖಳಟಟ ( ಪವಜರರ ) ಆದವಶಗಳನದ ನ ಜಲ ಲ ಮತದತ ಕಮಷನರ ವರ ಕಚವರಗ ರವನಸ , ಸದರ 23 Spl.C.C.No.5/2015 ಪಲವಸ ಪವದಗಳನದ ನ ವರರವಣ ಮಡಸರದತತರ ."
12. When this was the crux of the complaint, the notable aspect which emanates is that, this PW. 1 was to show that public servants accused Nos.1, 3 and accused No.2 are responsible for creating the document and also forging the signatures of higher police officers who are responsible for issuing transfer orders. So, PW. 1 has come before the Court with a definite stand that these two public servants accused Nos.1 and 3 have committed grave offences. But, the direction in which prosecution has led oral and documentary evidence are on a quite different footing. At no point of time, it is the consistent approach of the prosecution 24 Spl.C.C.No.5/2015 that whether it is accused No.1 or accused No.3 who was responsible for creating documents and each of them forged the signatures of a particular higher police officer/s. The dichotomy in this case is that the higher police officers who claims that their signatures on transfer orders have been forged, they themselves does not know who has forged their signatures.
Second aspect of the matter is that the prosecution has laid emphasis on the expert evidence who was a Handwriting Expert from the FSL, Madiwala, Bengaluru and her report is only in respect of giving opinion in respect of admitted and questioned signatures found on the documents. The opinion of the expert was only to show that the questioned signature 25 Spl.C.C.No.5/2015 was not in the handwriting of that person who signed admitted documents. So, every body knows that those signatures have been forged, but nobody knows who has forged those signatures and when. For ascertaining this important aspect, the entire trial was held.
13. When the cross-examination of PW. 1 was considered for its appreciation under Sec.3 of the Indian Evidence Act, the focus was that this witness himself does not know the alleged preliminary enquiry held by him was a regular domestic enquiry or he was only a part of fact finding mission. Because, according to the defence counsel, if PW. 1 claims that it was a regular domestic enquiry/internal enquiry, the 26 Spl.C.C.No.5/2015 appointing authority or a disciplinary authority shall have to follow the rules either as per KCSR or some such disciplinary rules which binds the public servant, so far as police department is concerned. To show that a notice was caused to accused Nos.1 to 3 or accused Nos.4 to 8, there is no scrap of paper. Likewise, when Ex.P. 13 and 14 are preceded by a regular domestic enquiry by the police authorities to show that accused Nos.1 to 3 have committed an act of creating documents and forging the signatures of some of the higher police officers. So, the defence counsel was trying to explain before the Court through his arguments that without following the proper procedures, there cannot be an 27 Spl.C.C.No.5/2015 enquiry. He started questioning the very act of PW. 1 in jumping to the conclusion that how can he find fault with accused Nos.1 to 3 when there is no iota of evidence pinpointing to their alleged misdeeds. I do find some force in this argument and I am compelled to draw this conclusion on account of some vague and evasive answers given by PW. 1 in his cross- examination, some of which are extracted for better understanding as below:
" I am not remembering as to, under what provision had issued such notice. I am not remembering as to whether, I had handed over the copies of the said notice to the I.O or not. .... I am not remembering as to under what provision I have recorded the statement of the accused. The enquiry conducted by me was for ascertaining the truth of the case and it was not a departmental enquiry. .... I do not know as to 28 Spl.C.C.No.5/2015 whether, a employee of a Police Department who is working as a Police constable can influence his higher officer in the head quarters or not. ... I am not remembering as to whether the copies of such notice are given to the I.O. or not."
14. So, this half hearted admission on the part of PW. 1 claiming that he undertook this exercise to ascertain whether such omission has taken place or not completely stands on the statement of the witnesses cited above. According to me, any lawful act or any act where it is questioned as not being lawful, requires either proper investigation or enquiry has to be undertaken to arrive at a truth. Ex.P.13 and 14 was lodged to find out who is at fault by holding a detailed investigation. If according to PW. 1, accused Nos.1 to 3 29 Spl.C.C.No.5/2015 hatched a criminal conspiracy and committed the offences of creating documents and forging the signatures, then they should be in a position to prove by way of cogent and cohesive evidence. The recitals found at Ex.P. 13 can only show the fact that some of the motive attributed to accused Nos.1 to 3 does not reflect in the so called act of PW. 1 in holding an enquiry. It is nothing but truth that, any order whether it is transfer or otherwise, which is issued from a competent authority or an office, has to undergo various processes, various sections and lastly through other checks and balances. It is an admitted case of PW. 1 and other official witnesses that decision to transfer any of the police officials, 30 Spl.C.C.No.5/2015 whether it is a gazetted or non-gazetted is taken at a higher level depending upon the contingencies and other circumstances. There must be a separate transfer proceedings, which is followed by a transfer order. This PW. 1 claims to have only examined some of the witnesses cited above, but there is no whisper as to what other documents he has verified at the police head quarters and what were the other steps taken to cross check how was this transfer order generated.
15. So, according to me, Ex.P. 13 and P.14 seems to be an act of eye wash and nothing else. Because, before Ex.P. 13 and P.14 could be given, there must be a disciplinary enquiry against the person 31 Spl.C.C.No.5/2015 concerned. As on the date of addressing the arguments, the prosecution has not made its stand to clear as to against how many erring officials disciplinary enquiry proceedings were initiated. The PW.1 and the concerned seems to have played a safe act in only registering the complaint, because, if they were to initiate any disciplinary enquiry proceedings either against accused No.1 or accused No.3, they should have cogent documents on which statement of imputation or charges can be leveled against any DGO. In the instant case, as that is missing, a bald Ex.P. 13 and P.14 came to be lodged. This PW. 1 seems to have ignored the role on the part of accused Nos.4 to 8. Apart from that, what is surprising is, how PW. 1 came to 32 Spl.C.C.No.5/2015 the conclusion that transfer orders can be meddled with officials of the Police Constable cader, which is really surprising. Under such circumstances, this Court is of the considered opinion that Ex.P. 12 to 14 not only requires thorough corroboration, but the ocular evidence of PW. 1 requires to be substantiated word by word and line by line through both ocular and documentary evidence.
16. When the serious allegations made by the prosecution against these 8 accused persons are kept in mind, they are not only serious, but has got all the ramification of projecting a bad image in the society. The very first allegation against the accused Nos.1 and 3 being that these both public 33 Spl.C.C.No.5/2015 servants hand-in-glove with 2nd accused by name B.M.Rajashekaraiah who was a fruit merchant of Chikkabantanahalli had ended in entering into an illegal agreement to forge transfer orders which also involved the interest of accused Nos.4 to 8. Subsequently, the other allegations revolves around forging signatures of the higher police officers, cheating, impersonation, lastly, demand for bribe, then its acceptance which has tantamounted to criminal misconduct on the part of accused Nos.1 to 3. So, basically, the prosecution is here to show before the Court that the assistance of 3 rd accused which was taken by the police headquarters, Bengaluru as a computer assistant was thoroughly misused by them, 34 Spl.C.C.No.5/2015 only to commit the above stated offences.
17. When the arguments on merits was going on, the Learned Public Prosecutor confidently spoke about the fact that in view of bank vouchers and challans which are available at Exs.P. 16, 17, 19, 20, 28, 38, 39 and 73 are looked into, they are self explanatory in so far as highlighting before the Court that accused Nos.4 to 8 either directly or through their relatives have deposited demanded illegal gratification amount to the S.B. Account of the 1st accused with his S.B.I bank at Belthangady Branch. So, it was argued by the Learned Public Prosecutor that this Court can easily draw inference against the accused that all these 8 accused have 35 Spl.C.C.No.5/2015 committed the above stated offences.
18. No doubt, these bank challans and counter foils definitely show that a specified amount was remitted to the bank account of the 1st accused, but those documents per-se have not disclosed as to, towards what purpose those remittances have taken place. Another aspect which requires to be further looked into is that this entire trial and criminal case is to find out who has committed an illegal act of forgery and concoction of documents. No doubt, when Exs.P. 1, P.2, P.13 and P.14 are kept in mind, PW. 1 has shown his fingers towards accused Nos.1 and 3 and in general accused Nos.1 to 3. As I have already extracted the admission of PW. 1 36 Spl.C.C.No.5/2015 found in his cross-examination that the so called preliminary enquiry claims to have been held by him was as per the directions of his S.P. and nothing else.
19. This PW.1 also makes it very clear that even though he had caused notices to accused Nos.1 to 3 and some of the witnesses, but he does not know under what provision of law that was issued and how his report becomes tenable, because, admittedly the said preliminary enquiry was not a domestic enquiry. Again if we consider the main contention of the accused Nos.1 to 3 that when PW. 1 was not authorized to be an enquiry officer, no charges of imputation or charge sheet can be issued in favour of accused Nos.1 to 3. 37
Spl.C.C.No.5/2015 The claim of PW. 1 that he held the preliminary enquiry only to lodge Ex.P. 13 and P.14 cannot be accepted. Indeed, it is a reality that if any domestic enquiry has to be conducted, then not only a procedure, a fair opportunity must be given to the delinquent Government Officials or the accused to put forth their say and and also to take the assistance of next friend. In the instant case, the opinion expressed by PW. 1 that as he collected information from PW. 23 and PW. 25 that the signatures found on the alleged transfer orders does not belonged to them, PW. 1 formed an opinion that it was a handy work of accused Nos.1 to 3 in commission of concocting documents and forging of signatures. According to me, this will not 38 Spl.C.C.No.5/2015 help the prosecution to project that there was an agreement and a conspiracy on the part of accused Nos.1 to 3 for the purpose of creating documents i.e. fake transfer orders and forging the signatures of PW. 23 and 25. As I have clubbed the different 7 allegations faced by all the accused together for my discussion, now the very important aspect which requires to be distilled is, is there any evidence placed by the prosecution to show that the so called amount remitted into the bank account of the 1st accused was towards paying bribe.
20. In this regard, I would like to go in detail and examine the role of PW. 2. This witness by name R.Nijaguna, S/o Rupla Naik, who was the S.D.A. in the JMFC 39 Spl.C.C.No.5/2015 Court in Davanagere. According to this person, he was working as the Police Constable in Mangalore City in one of the police stations and he claims to have known the 1st accused. According to him, in the year 2012, he has worked with the 1st accused and on one day, the 6th accused had brought his father to Manipal Hospital for treatment and at that time, both of them were staying in his room and subsequently this 1st accused was transferred from Mangalore to Davanagere and thats all. Subsequently, the CID police summoned him for investigation and asked him about his acquaintance with 1st and 6th accused persons. His further examination- in-chief is to disclose the fact that he has no role in the alleged fake transfer orders 40 Spl.C.C.No.5/2015 of police officials. He also says that Ex.P. 15 statement is not given by him and lastly, he completely turned hostile. In the entire cross-examination conducted by the Learned Public Prosecutor, there was an effort, of course, to suggest in respect of the contents of statement at Ex.P. 15 which came to be denied by this witness in toto. When the contents of Ex.P. 15 is taken note of, the allegation that this PW.2 acted as a middleman and also a catalyst between the 1st accused and the police constables who wanted transfer to their place of choice on paying bribe amount has not been proved at all. So, the first independent witness on the part of the prosecution has failed to support its own case.
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21. Coming to the evidence of PW. 3 by name Chandan Raj Urs who is the native of Mavatturu in K.R.Nagar Taluk in Mysore District. He claims to have known the accused No.4 Dilip Raj Urs. During the year 2011-12, he was working as a sweeper at the State Bank of India, Jigani Branch, Bengaluru and according to him, he does not know anything about this case and he has not advanced loan of Rs. 40,000/- to accused No.4 at that time. Even though through this witness a voucher cum challan dtd.02-10-2011 was shown and marked at Ex.P. 16, he completely denies this alleged transaction and even in respect of seizure panchanama at Ex.P. 17. He denies its contents, but admits his signature only on that document. During 42 Spl.C.C.No.5/2015 the course of examination-in-chief, this witness completely turned hostile. His statement is at Ex.P. 18 came to be denied by him. The very first suggestion has been denied by him which reads as under:
"It is false to say that Dilip Raj Urs and Kempa Raj Urs are my friends and relatives. ... It is false to say that, at the instance of Kempa Raj Urs, I had deposited the amount mentioned in Ex.P. 16 for getting transfer of Dilip Raj Urs, who was working as P.C. at Mangalore to Mysore. It is false to say that, on 02-10-2011, I had deposited the amount mentioned in Ex.P. 16."
22. As I have said earlier, the main ground of attack on the part of the prosecution was that when there are documentary evidence to show that accused Nos. 1 to 3 have accepted the bribe by way of demanding the beneficiary to deposit them 43 Spl.C.C.No.5/2015 in the S.B. account of the 1st accused, the burden of proving the same on its part was lessened, because this bank documents comes with presumption. According to me, the prosecution was wrong in highlighting this aspect before this Court, merely because, Ex.P. 16 has taken place, the Court has to consider that amount as demanded bribe amount. As I have said earlier, this document itself does not contain any recital to the fact that this amount was paid towards the bribe. So, even this second independent witness of the prosecution has not helped it.
23. Coming to the evidence of PW. 4 by name T.D.Jagadaiah, who is the 7th accused's wife's brother. According to this 44 Spl.C.C.No.5/2015 witness, his brother-in-law was a Police Constable at Bellary, through him he came to know about the 1st accused. So, this witness makes it very clear that in the year 2011, the 1st accused had requested him to advance a loan for the purpose of house construction, so at that point of time, twice he has deposited some amount i.e. Rs. 15,000/- at the 1st instance and Rs. 25,000/- at the 2nd instance on the same day. Through this witness Ex.P. 19 and P.20 came to be marked. This witness by turning hostile completely denied the suggestions that this total amount of Rs. 40,000/- was paid as the bribe to the 1 st accused in order to show favour to the 7th accused to get transfer to the place of his choice. So, in the cross-examination 45 Spl.C.C.No.5/2015 conducted by the Learned Public Prosecutor of this witness, Ex.P. 21 came to be completely denied by this witness. As I have said earlier, if these PWs. 2 to 4 had supported the case of the prosecution, documents at Ex.P. 16 to 21 would have got life and their recitals would have conveyed some fruitful meaning. But, as these witnesses have completely turned hostile and negatived the story and the allegations made by the prosecution against the accused, the entire case of the prosecution is now in dole-drums.
24. Coming to the evidence of another independent witness by name Shankar Naik, who has been examined as PW. 5, who was the contract employee with the 46 Spl.C.C.No.5/2015 Devaraj Urs Backward Classes and development Board and he had a brother by name Manju Naik, through him, he came to know the 1st accused and according to this person, he was summoned by the C.I.D. and asked him about the role of the 1st accused in demanding and accepting the bribe for the purpose of showing official favour by asking the beneficiary to deposit Rs. 40,000/- into his bank account. But, according to this witness, he has not seen the 2nd accused receiving the bribe amount of Rs. 40,000/- on behalf of the 1 st accused and completely disowns his statement which is at Ex.P. 22. In fact, he has been thoroughly cross-examined by the prosecution in spite of the fact that this 47 Spl.C.C.No.5/2015 witness turned hostile. But, nothing worth considering for appreciation is found in the cross-examination, because, the sequence of events which are tried to be connected by the prosecution's to the allegations made against the accused could not be successfully done. So, this independent witness has not supported the stand of the prosecution.
25. Coming to the evidence of PW. 6 by name Kemparaj Urs, who is a native of H.D.Kote, Mysore District and elder brother of the 4th accused. According to this person, he does not know why the 4th accused had been prosecuted. He admits his signatures at Ex.P. 16 and P.17, but he does not know its contents, because, 48 Spl.C.C.No.5/2015 according to this witness his signatures were obtained by C.I.D. police on those documents forcibly. This witness too has turned hostile and not supported the case of the prosecution. When the contents of Ex.P. 23, his statement, are gone through, much hope was pinned on this document by the prosecution to substantiate the fact that in respect of alleged transfer of 4th accused amount in a sum of Rs. 40,000/- was collected by the 1st accused as a bribe. Again there is a complete failure on the part of the prosecution to substantiate this aspect.
26. Coming to the evidence of star witness, according to me is PW. 7 by name Miss.Asha, daughter of Marappa, who was 49 Spl.C.C.No.5/2015 the FDA at D.G. and I.G.P. Office, Bengaluru at the relevant point of time. She was examined before this Court, because, according to the prosecution, she knew the niti-grities of the day today transactions which took place at that police headquarters more so in respect of transfer of police personnel. According to this lady, from 19-01-2010, she was working at that headquarters and she was an Assistant to C.Channappa in establishment section No.7, then, she was posted to work under one Udayashankar in establishment Section No.2, finally she was independently given charge in establishment Section No.9. During her tenure as the Assistant in establishment section No.2, there was transfer order of 50 Spl.C.C.No.5/2015 100 Head constables and Police constables. So, this lady makes it very clear that there is not even one transfer order in respect of single transfer of any one police officials. She claims that she knew accused No.3 who was assisting as a typist. Further, according to this lady, she spoke about how transfer orders used to take place and particularly on 05-03-2012, she was called by the C.I.D. police and enquired about the fake transfers by showing the fake transfer orders and as she has acquainted with signatures of PWs.23 and 25, she has answered that those signatures does not belonged to them. So, according to this lady, the documents shown by C.I.D. to her at that time claiming to be the transfer orders did not contain the original 51 Spl.C.C.No.5/2015 signatures of PWs.23 and 25. But, in the cross-examination, she failed to identify accused No.2. According to her, she does not know how the fake transfer orders took place and she also spoke about the possibility of bulk transfer order getting generated and disowned the fake transfer order in respect of any one police officials. So, this Ex.P. 24 has not been supported by her because, this lady also has been partly treated as a hostile witness. According to her, in respect of identity of the 2nd accused she has not spoken anything about Ex.P. 24. But, in the cross- examination conducted by the 3rd accused's counsel, there is some admission which is helpful to them, which are extracted as under:
52
Spl.C.C.No.5/2015 "Accused No.3 Lakshmikantha was attending all types of works in our office like xeroxing the documents, typing, attending the inward and outward work and supplying tea and coffee to the staff. It is true that, on account of his nature, usually our staff and public used to consult him."
27. This admission was canvassed by the 3rd accused counsel to submit before the Court that it is highly improbable to imagine a staff like 3rd accused could alone can influence and obtain transfer orders of police officials to the place of their choice.
According to me, considering the nature of the work which was given to the 3 rd accused, it cannot be said that any transfer orders in respect of police officials either can be tampered or created independently in an isolation.
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28. Coming to the another important witness PW. 8 by name Smt.Pavithra, W/o B.N.Nagaraj who was also a First Division Assistant in the Police headquarters office, D.G. & I.G. Office, has given evidence and tried to support the prosecution case. According to her, she was attending work in respect of transfers and deputations of constables and Head constables of inter districts. She claims to have known about the accused No.3. According to this lady, she has gone through the signatures of PWs.23 and 25 on the fake transfer orders and has given her opinion before the C.I.D. police that it does not belonged to them. She also makes it very clear in her examination-in-chief that those signatures were not belonged to those PWs.23 and 25. 54
Spl.C.C.No.5/2015 But, in the cross-examination, there is some admission which enlightens this Court that on 22nd July 2011, she was not working in that particular establishment section, which had generated that fake transfer order. She also claims that she had no any independent power to transfer any police constable directly on deputation without the direction of the higher authorities. But, the main admission found in her cross-examination is extracted as under:
"It is true that, generally the Police Officers, who are transferred from one place to another place is not personally aware of the mistakes or details appearing in their transfer order. It is true that, the transfer order will not directly go into the hands of transferred police constable".55
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29. This admission was extracted to show before the Court that as handwriting science is not an exact science and as this PW. 8 is not an expert, her opinion that signatures found on Exs.P.25 and 27 does not belonged to PWs.23 and 25 cannot be accepted. Likewise, when the transfer orders are sent to different S.P. offices, the official who is under transfer is unable to know whether such particular transfer order has any mistakes or omissions. So, this type of answers given by PW. 8 in her cross-examination can only be considered as cat sitting on the fence and nothing else. The role of PW. 8 was questioned by way of cross-examination only to highlight before the Court that Ex.P. 25 and 27 were not issued from that particular section. Here, 56 Spl.C.C.No.5/2015 this particular witness's evidence who has not stated anything about the role of accused Nos.1 to 3. So, it will not help the prosecution to canvass that there was a criminal conspiracy amongst accused Nos.1 to 3. In this regard I rely upon a decision reported in AIR 1971 SC 885 ;
N.M.M.Y. Momin Vs. State of Maharastra ; Where in it is held that A conspiracy from its very nature is generally hatched in secret. That element is not at all found in the present case and the prosecution has failed to prove this aspect.
30. In my preceding paras this Court held discussion that neither accused Nos.1 to 3 with 2nd accused did not form a team or entered into an agreement to hatch 57 Spl.C.C.No.5/2015 criminal conspiracy. As the allegation of the IO who filed the charge sheet against these 8 accused are manifold, so the allegations made against these accused are badly mixed up. The next part of the serious allegation are in respect of creating false transfer orders which include the name of accused Nos.4 to 8 and that was done with a dishonest intention to extract money, whereby the IO has invoked Secs.465 and 468 of IPC. When these allegations were made against those accused, it is not only the document which is branded as created/fake orders requires to be relooked into but also the person who is involved in this illegal act has to be found out.
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31. When we fall back on the main document of the prosecution at Ex.P. 2, which is a letter of direction issued from the office of D.G.P. to the Director of CID, Bengaluru to look into the matter of issuing fake transfer orders of Police Constables by holding a detailed enquiry and on the basis of Ex.P. 2, documents at Ex.P.11 to P.14 have taken place. Now, when the contents of Ex.P. 11 which is his report-cum-complaint of PW. 1 is looked into, the recitals of that document show that serious charges are made against accused Nos.1 and 3 that they are responsible for creating fake and false transfer orders. The subsequent documents which are discussed supra Ex.P. 12 and 13 also raises big question 59 Spl.C.C.No.5/2015 mark in respect of the way in which PW. 1 has come to the conclusion that on a preliminary enquiry, he came to the conclusion that accused Nos.1 and 3 with the help of 2nd accused who was an outsider/private person are responsible for committing offences under Secs.465 and 468 of IPC. This bald allegations made against accused Nos.1 to 3 in particular, that they have committed heinous offence of creating documents and extortion sounds baseless.
32. So far as the evidence of PW. 9 by name Shiva Prasad is concerned, who was the FDA at the Bengaluru Police Commissioner Office for the relevant period, according to him, he was 60 Spl.C.C.No.5/2015 discharging his duty in the establishment section. So, he was looking after the transfers, promotions and Court matters of police constables, stenos and typists. On 30th October 2011, he receives a letter from the S.P., Dakshina Kannada District containing a direction that accused No.6 has to be relieved from his duty as that official was transferred to Mysore. According to this person, having gone through that transfer order, he suspected in respect of its genuineness and immediately contacted his counter part of the S.P. office, Mysore. So, immediately he brings to the notice of the higher authorities in respect of the fake transfer orders which was in turn communicated to I.G.P. office at Mysore. Through this 61 Spl.C.C.No.5/2015 witness, 4 fax message copies at Ex.P. 2(a) to (d) are marked. In so far as cross- examination of this witness by the counsel appearing for accused Nos.4 to 8 is taken into consideration, they elicited evidence that, this witness has not looked into the original transfer order. Subsequently, he also gives evidence that he does not know whether the I.O. has issued another direction in writing to Dy.S.P. Naik to record the statements of accused Nos.4 and 6 or not. The evidence contained in this document was to show before the Court that accused No.6's transfer order was fake. The available materials have shown that the documents which are questioned are fake transfer orders came to be confirmed by the Police headquarters 62 Spl.C.C.No.5/2015 that it is not a genuine documents. But, the point for consideration is who are the culprits. For that purpose, this entire exercise and trial has been conducted. But, this evidence of PW. 9 by itself has not signaled the fact that either accused No.1 or 3 are responsible for this committing this offence, wherein they involved, in particular, commission of offences under Secs.465 and 468 of Indian Penal Code.
33. Coming to the another crucial evidence of PW. 10 by name Ganesh, according to him, the 8th accused is his younger brother and his younger brother was working in the year 2011 at Pandeshwara Police Station, Mangalore. His wife Sowmya was working in Hudjan higher Primary School, 63 Spl.C.C.No.5/2015 Mysore and through his brother, he came to know about the 1st accused. But, according to this person, he does not know whether his brother 8th accused was subsequently transferred. About 8 years back, he has sent a sum of Rs. 15,000/- to the bank account of the 1st accused. Through this witness, Ex.P. 28 filled challan/counter foil came to be marked. But, this witness makes it very clear that as the 1st accused requested for financial help, he has sent this amount to his bank account. This evidence at his examination- in-chief is extracted as under:
At that time, the accused No.1 has requested me for financial assistance to provide medical treatment to his father. I have not stated before the CID police stating that, I have deposited the said Rs. 15,000/- to the S.B. 64 Spl.C.C.No.5/2015 account of accused No.1 Shivamurty Naik as he has promised me that, he will get my brother transfer from Mangalore to Mysore.
34. Having given this evidence, this witness turned completely hostile and he denies the entire cross-examination conducted by the Learned Public Prosecutor and the Ex.P. 29. As discussed earlier, the main trump card for the prosecution that there are duly filled counter foils of bank for having remitted a specified sum of money to the bank account of the 1st accused which is at State Bank of India, Belthangady Branch, but those documents themselves cannot show that all the amounts remitted by these people were towards bribe or as 65 Spl.C.C.No.5/2015 gratification. In this regard I rely upon a decision reported in 2011 Cr.L.J. 4671 (A.P.) State ACB Vs. J. Chandrashekara Reddy, wherein the Honble High Court has held that mere recovery of tainted amount from the accused officer divorced from the circumstances is not sufficient to prove the case of the prosecution. It is because even if the bank account of the 1 st accused is considered, the amounts remitted by accused No.4 to 8 and their relatives to that bank account cannot amount to acceptance of bribe. Those bank documents require further corroboration, but they have not been proved by the prosecution.
35. Coming to the evidence of PW. 11 by 66 Spl.C.C.No.5/2015 name Lokesh, police constable, who is attached to the Chikkajala Police Station. He claims that he knew the accused No.3 and in the year 2010-11 he was working as a P.C. at Kadoor Police Station, Magadi Taluk of Ramanagar District. He had submitted requisition for his transfer from Ramanagar district to Bengaluru City, so he came in touch with accused No.3. Though he submitted his application for transfer, but he did not get any reply. According to this witness, the 3rd accused did not help him, but later on, it was brought to his notice that once his application for transfer is processed, S.P. from D.G. office will call him over phone and ask him about his necessity for getting transfer and as such, he waited for a reply 67 Spl.C.C.No.5/2015 from that office. Even though, he spoke to accused No.3 over telephone it is only in respect of that matter and this is what he stated before the CID. So, in his examination-in-chief, it was tried to be impressed upon by this Court that even PW. 11 was in contact with accused No.3, only to get his transfer to a place of his choice by paying a bribe. But, second half of the evidence of this witness in respect of payment of bribe amount to the accused is not proved.
36. Coming to the evidence of PW. 12 K.S.Shashidhar, according to him, in the year 2011, one Lingaraju was working as a Special Officer in the Chief Minister Office, Vidhana Soudha, Bengaluru. So, he was 68 Spl.C.C.No.5/2015 working as an assistant in room No.235, where the said Lingaraju was also working. According to him, he does not know the person by name Rajashekaraiah and he has not seen him. Further, this witness completely turned hostile and in his cross- examination, apart from denying the prosecution suggestions, has denied his own statement at Ex.P. 31. The nexus which the prosecution tried to establish is one Mr.Lingaraju who was working with him, then with the help of this person transfer orders were made but on account of this witness completely turning hostile that document at Ex. P-31 is not proved.
37. Coming to the evidence of PW. 13 by name Basavaraj who was the police 69 Spl.C.C.No.5/2015 constable attached to the Bagalakote town police station, he had come in contact with accused No.3 and this accused No.3 used to call him over phone. This witness has injected a new evidence that whenever accused No.3 used asked for money, he used to pay Rs. 50/- or Rs. 100/-. Through accused No.3, he came to know that a case is registered by the CID police and they had questioned him as to whether he has paid any bribe amount to the accused No.3 to which, according to him, he has not paid that bribe amount. The relevant examination-in-chief of PW. 13 is extracted as below:
" I was called by C.I.D. police to their station and enquired me as to whether, I have paid any bribe to accused No.3 in connection with my transfer or not. For that, I told 70 Spl.C.C.No.5/2015 him that, I have paid the amount to him as a loan, but not as a bribe."
38. Even this witness has completely turned hostile denies the entire statement at Ex.P. 32. The 3rd accused counsel has cross-examined this witness. But, the sum and substance is that there was no demand or acceptance of bribe by the accused No.3. In this regard I rely upon a decision reported in 2008 Cr.L.J. 3312; State Vs. V.Sejappa, wherein the Hon'ble High Court has held that a plain reading of the provision of Sec. 7 of the P.C. Act, 1988, will make it clear that all that is required to bring the case within the ambit of Sec.7 is for the prosecution to prove that a public servants accepts or obtains or 71 Spl.C.C.No.5/2015 agrees to accept or attempts to obtain from any person any gratification other than legal remuneration as a motive or reward for doing any official favour to any person. But in this case that is missing.
39. Coming to the evidence of PW. 14 by name Srinivas, he claims to have known a person by name Dr.S.K.Shankar who was the P.S.I. at Davanagere extension police station. This witness claims that he knew the 2nd accused but he did not meet this 2nd accused in connection with transfer of one Mr.Shankar. Again in his examination-in- chief, this witness turns hostile denies the suggestion in the cross-examination in respect of remittance of bribe amount to the bank account of the 1st accused. Bank 72 Spl.C.C.No.5/2015 statement is marked through this witness at Ex.P. 33. But, considering the entire evidence of PW. 14, Ex.P. 33 plays a little significant role because there is no dispute in respect of remittance of a sum of Rs. 15,000/-. But, whether that amount is a bribe amount is a million dollar question, because in his examination-in-chief, there is a categorical denial that, that amount remitted by him was towards transfer of one Shankar paid as a bribe to the 1 st accused. So, the entire case set up by the prosecution in respect of alleged extortion of money, creating false and fake transfer orders falls to the ground. In this regard I rely upon following decisions. 2002 AIR, SCW 16; Punjab Rao Vs. State of Maharashtra and another reported in 73 Spl.C.C.No.5/2015 2005 Cr.L.J. 3650; Raghotan Rao Vs. State of Andhra Pradesh; wherein it is held that in a case where the accused offers an explanation for the receipt of the alleged amount, the question that arises for consideration is, whether the explanation is said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.
40. Coming to the evidence of PW. 15 by name N.M.Halaswamy who is said to be an independent witness claims that he knew the 2nd accused and about 7 years back, the CID police had gone to his native place 74 Spl.C.C.No.5/2015 to enquire in the matter and they have obtained the statements and signatures. Further, this witness makes it clear that in his presence, the police have not seized the mobile phone of the 2nd accused. He also makes it very clear that he does not know anything about this case. Even though Ex.P. 34 came to be marked, this witness has not supported that document. So, there is a failure to show before the Court when alleged seizure of mobile phone belonged to the accused No.2 was as per law.
41. Coming to the evidence of PW. 16 by name Thippeswamy, who is also an independent witness, he claims to have known the 2nd accused. The Police have 75 Spl.C.C.No.5/2015 enquired him and recorded his statement and Ex.P. 34 was not drawn in his presence. It is a seizure panchanama. Again this witness claims that no mobile phone belonging to the 2nd accused was seized in their presence. Likewise, according to him, motorcycle bearing No.KA-17 EE-6465 was also not seized. So, this witness who has identified Ex.P. 36 completely denies that document and Ex.P.
37. According to him, when he was proceeding to his agricultural land, police have mechanically obtained his signatures on those two documents. So, the sum and substance of this witness's evidence is that mechanically he has signed on the panchanama when going to his agricultural land and he has not enquired as to for 76 Spl.C.C.No.5/2015 what purpose they have drawn.
42. Coming to the evidence of N.Jagadisha, PW.17 who was the FDA attached to RTO office, Davanagere and according to this person, he knew one Jayarathna, she was working as a 'D' group employee in D.C.T. Office, Shivamogga. In the year 2011, she had requested him that, as she is the native of Gubbi Taluk, she wanted transfer to Tumkur or Tiptur as she knew the 2 nd accused she asked for a help. In the year 2009, accused No.2 has brought a letter from Bengaluru Transport Commissioner Office requesting for arranging a bus facility to Chikkabanthanahalli Village in Jagalur Taluk of Davanagere District, at 77 Spl.C.C.No.5/2015 that particular time, the accused No.2 showed the letter heads of politicians like B.S.Yediyurappa, the then District Minister S.A. Ravindranath and promised him that he would get a transfer of her place of choice. According to this witness, at that time, the accused No.2 demanded a bribe of Rs. 25,000/- from him and this was communicated to Jayarathna CW.24 and she deposited this amount in the SB account of this witness. Later he withdrew that amount, paid the same to accused No.2. After 2-3 months, when CW.24 did not receive any transfer orders, she reminded this witness, in turn it was communicated to the 2nd accused and on enquiry by CW.24, they came to know that there was a transfer order issued. That 78 Spl.C.C.No.5/2015 transfer order was bearing the signature of the then Transport Commissioner Sri.T.Sham Bhat and later accused No.2 demanded a bribe of Rs. 15,000/- and this witness claims to have paid the same to the accused No.2 on behalf of CW.24. According to this witness, later on CW.24 told that the transfer order which is received is a bogus transfer order and she demanded accused No.2 to refund that Rs. 40,000/- through this PW. 17.
43. It is also spoken by this witness that on 19-08-2011 he has transferred a sum of Rs. 25,000/- from his account to the SB account of CW.24 and retained the balance amount of Rs. 15,000/-. When CID police have issued a notice he appeared before 79 Spl.C.C.No.5/2015 him with a pass book and xerox copy of the same. Through this witness Ex.P. 38 and 39 are marked. Now, when this evidence of PW. 19 is kept in mind, the role of CW.24 in particular, initially there is no allegation made against accused No.2. He had duped CW.24 and in the cross-examination conducted by the 2nd accused counsel, all the related issues in respect of places of work, nature of work, etc. have been asked. According to this witness, he met CW.24 in the year 2009 in the D.C.T. Office Shivamogga and he had no any dealing with him. It is elicited in his evidence that both 2nd accused and CW.24 are not known to each other. But, the important admission of this witness is that there is no documentary evidence to show that he has 80 Spl.C.C.No.5/2015 paid the bribe of Rs. 40,000/- to the accused No.2 which is extracted as under:
"There is no documentary evidence with regard to payment of Rs.15,000/- by me to accused No.2. there is no documentary evidence with regard to payment of above said Rs. 40,000/- by the accused No.2 to me."
44. So, this is the evidence given by PW.
17. In a nut shell, according to PW. 17, he acted as a middleman through whom, CW.24 paid the bribe. But, this evidence has also brought in new aspect as to when he claims that he has refunded Rs. 25,000/- to CW.24, why he has not collected the said amount from the accused No.2, to which there is no answer at all. As I have said earlier, the new aspect of bribing accused No.2 to get a favourable 81 Spl.C.C.No.5/2015 order to CW.24, it is not found in earlier evidence, both oral and documentary evidence but all of a sudden it surfaces. This part of the evidence of PW. 17 if considered as an improvement in the case of prosecution, it may not be wrong. So, the prosecution through various witnesses trying to improve its case only to show that the accused No.2 received the bribe amount. Admittedly, the accused No.2 is not a public servant. Then how the alleged acceptances of bribe amount will have bearing on issuance of fake transfer orders is again another question not answered by the prosecution. I should say, these aspects have not been properly linked to each other and as I said earlier, the modes through which evidences are collected 82 Spl.C.C.No.5/2015 seems to be direction less.
45. In respect of Sec.417, there is one more serious allegation that fake transfer orders were created with a dishonest intention of cheating. This allegation not only contemplates but also pre-supposes the fact that there must be a calculated move on the part of accused No.1 to 3, firstly to project the said transfer order as a genuine then to deceive accused Nos.4 to 8 and others. In the instant case, the prosecution is trying to connect the so called bank challans which pertains to the SB Account of the 1st accused at Belthangady branch, SBI claiming that accused Nos.4 to 8 including CW.24 through PW.17 have deposited bribe 83 Spl.C.C.No.5/2015 amounts demanded by the 1st accused to his bank account. So, this amount found in the bank account of the 1st accused according to prosecution is the bribe amount. In the nutshell, according to the prosecution accused No.1 to 3 have cheated the so called beneficiaries of the fake transfer orders. This allegation stands on its own leg if it is proved to the satisfaction of the Court that the alleged amount found in the bank account of the 1st accused was a bribe amount. In this regard, it is needless to repeat that the evidence tendered by some of the witnesses earlier, they have disowned in this regard. In fact, they have not only disowned, but they have completely turned hostile. So, when the person who has remitted the 84 Spl.C.C.No.5/2015 amount to the SB account of the 1 st accused comes out with an explanation that it was a hand loan, financial assistance and the amount paid towards treatment of the 1st accused family members, again branding that amount as a bribe amount will not sustain for consideration at all. In this regard I rely upon a decision reported in 2007 (4) Crimes 44 (SC); A.K.Ritola Vs. State of Bihar wherein it is held that where there was nothing to show that accused had the requisite intention so as to deceive somebody with a view to cause unlawful loss and to make unlawful gain for themselves question of committing the offence of cheating will not arise at all. In the instant case the allegation leveled 85 Spl.C.C.No.5/2015 against accused of Sec.417 of IPC is not proved by the prosecution at all.
46. Coming to the evidence of PW. 18 who was a Technical expert in CCPS, Bengaluru and on 5-03-2012 CW.24 C.K. Lingeshkumar, Dy.S.P. informed him that the systems used by the accused No.3 Lakshmikanth has to be seized in connection with Halasuru P.S. crime No.49/2012, so on his request, he had been to D.G. and I.G. office, Bengaluru to seize the systems. According to this witness, I.O. shown the four systems to seize, and as per his instructions, he has seized them. Out of the 4 systems/hard disks, two were of 80 GB capacity, one was of 1GB capacity and another was 160 GB 86 Spl.C.C.No.5/2015 capacity. Through this witness Ex.P. 40 to 43 which were 4 panchanamas came to be marked and his signatures also got identified on those panchanamas. As it was formal and nothing much was attributed to anyone of the accused in this case, this witness was not cross-examined by anybody.
47. Coming to the evidence of PW. 19 who was the retired District Administrative Officer, DG & IG Office at Bengaluru, according to him, he knew the 3rd accused and again on 05-03-2012 CW.42 IO visited their office in connection with seizure of said systems used by the accused No.3. He was also a mahazar witness to those seizure panchanamas. Even this witness 87 Spl.C.C.No.5/2015 was not cross-examined by all the accused except accused No.3. The only cross- examination of the accused No.3 was to elicit admission from this witness to know that there was any password allotted to this system used by this witness. By culling out those admissions, it was tried to be impressed by this Court that the alleged fake transfer orders cannot be easily brought out or published with the help of few persons working therein as the said process has got different procedures, checks and balances.
48. Coming to the evidence of PW. 20, K.N.Srinivasmurthy who was the FDA in the police headquarters in the year 2012. He claims to know accused No.3. On 05- 88 Spl.C.C.No.5/2015 03-2012, IO visited their office for investigation and by that time, one technician by name Mallikarjun was present with accused No.3 and the IO seized one hard disk from the system allotted to him and his system was used by accused No.3 and after seizer of hard disk the IO drawn a mahazar, to which his signature was taken and this witness identified his signature at Ex.P. 42(b). In the cross-examination by the accused No.3 counsel, it is admitted that his client i.e. accused No.3 was only assisting for computer operation to this PW. 20. This evidence was placed to show and to corroborate other main aspects that there is a link already established by the prosecution to prove the guilt of the 89 Spl.C.C.No.5/2015 accused No.3.
49. Coming to the the evidence of PW. 21, he is the Nodal Officer, Bharathi Airtel Ltd. by name Stanley Hegnolo who has received a letter from CID Police with a request to furnish the call details of two mobile sim numbers for the period commencing from 1-5-2011 to 13-12-2011. In compliance of the same, this gentleman has issued Ex.P. 44 and 45 and through this person Ex.P. 47 and 48 came to be marked. In the cross-examination, it is his answer that as the IO has sought for the information in respect of call details, he has issued the covering letter containing this information for a specific period. But, this witness admits that he has not issued any separate 90 Spl.C.C.No.5/2015 certificate under Sec.65B of the Indian Evidence Act. So, it was easy for the defence counsel to submit that any opinion provided by way of electronic document cannot have legs to stand, because they are without any Sec.65-B I.E.A. certificate issued from the competent authority. Of course, when it was submitted in the arguments, the prosecution has no answer to this.
50. Coming to the evidence of PW. 22 witness by name Rathnakar Naik who is a Nodal Officer of BSNL, who has also issued call details in respect of one sim number for a particular period. According to this witness, he issued the call information details with a certificate under Sec.65B of 91 Spl.C.C.No.5/2015 the Indian Evidence Act, which were respectively came to be marked as Ex.P. 50 and P.51. So far as this evidence of Nodal Officer of BSNL is concerned, having gone through both oral and documentary evidence, it was to show before the Court that those information have been properly made use of by the IO during the course of investigation. As it is not a trap case, as there is no any sting operation, question of depending upon the voice records or going through the call details only to connect accused No.1 and 3 with all the accused No.4 to 8 that these people have demanded bribe amount will not arise for consideration at all as it is either abetting or commission of conspiracy, cheating, forging signatures, creating documents by 92 Spl.C.C.No.5/2015 themselves are independent offences of their own. So, the prosecution through these type of circumstances trying to connect accused No.1 to 3 to these alleged offences but they have completely failed in this regard.
51. Coming to the evidence of a very important witness PW. 23 by name H.N.Sathyanarayana Rao, retired DGP given evidence that in the year 2011, he was working as the ADGP Crimes and Technical service in the police headquarters, Bengaluru and from 10-08- 2011 to 30-10-2011, he was in Addl. Charge of ADGP, Administration and he came to know that some false transfer orders were issued in the name of their 93 Spl.C.C.No.5/2015 office with respect to the constables of inter-district. On 9-12-2011, his Chief Officer has shown some signatures on the transfer orders with a request to identify the said signatures belonged to him or not. After careful scrutiny of the said signatures, it was his opinion that they are not his signatures. So, through this witness Ex.P. 53 to 60 came to be marked and later on they were sent to FSL for scientific examination by the Handwriting expert. In fact, this witness too has not been cross-examined by any of the accused. The sum and substance of his examination-in-chief is that he says that his signature has been forged, but he does not know who has done it. Another interesting aspect is, but for the complaint 94 Spl.C.C.No.5/2015 given by PW. 1 that Ex.P. 2, P.11 to 14, this person or PW. 25 on their own have not taken any action which is still more surprising. Whether office has taken action or not, it is a subsequent thing, but he should take the matter seriously and initiate proceedings. In the instant case also, when Ex.P. 11 is gone through, it is very surprising as to how PW. 1 has come to the conclusion that it is only accused No.1 and 3 are responsible for forging the signatures. As I have said earlier, they does not stand a test of time because there are no proper reasons assigned for it. Under such circumstances, this evidence of PW. 23 cannot show before the Court that accused No.1 to 3 either created fake transfer orders or forged his signatures on 95 Spl.C.C.No.5/2015 them. At this juncture, it is also relevant to examine the evidence of PW. 25 by name Jeevan Kumar who too was the ADGP at the relevant point of time and according to him, he has also served as ADGP, administration in the police headquarters and he came to know that some unknown persons have crated fake transfer orders and he also went through such orders and according to him, it was found that signatures found on those orders does not belonged to him. In fact, this witness also says that he had put a suggestion to the I.G. Stating that a separate preliminary enquiry has to be conducted in connection with fake transfer orders by appointing a Dy.S.P. So, PW. 1 was appointed, then Ex.P. 1, 11 to 14 has taken place. In the 96 Spl.C.C.No.5/2015 cross-examination, there are some admissions which show that, he suspected that, his signatures were forged on transfer orders, but he does not know who is the culprit. He also admits that he had no any impediment to give a complaint in this regard. This witness spoke about the role of PW. 1 and admitted that the so called preliminary enquiry conducted by the PW. 1 are not domestic enquiry. By saying so, he deposes that the alleged preliminary enquiry claims to have been conducted by PW. 1 virtually has no legal force or no sanctity in the eye of law. Some of the material admission given by PW. 25 is extracted as under:
"The security code is given to each computers int hat office and the operator of that computer 97 Spl.C.C.No.5/2015 knows the same. Generally, nobody can operate the computers in or office except the particular computer operator."
52. So, when it is his evidence that these were the precautions taken in the computer headquarters, then there should not be any doubt about the identifying the culprits. Under such circumstances, the evidence of PW. 23 and 25 have failed to show before the Court that even though their signatures were forged, but both of them did not act on their own or have shown least interest in initiating any action against the persons they suspected of forging their signatures on the transfer orders. Because of initiation from the PW.1 on account of direction from higher authorities, Ex.P. 11 came to be lodged and 98 Spl.C.C.No.5/2015 nothing else. In this reard I rely upon a decision reported in 2009 Cr.L.J. 1317, Surain Singh Vs. State of Punjab. It is now by well established principle of law that for the offence under sections 409, 467 and 471 of the IPC the existence of mens rea (guilty mind) must be proved.
53. Now, it is the earnest appeal and case of the prosecution that admitted, questioned and standard signatures of PW. 23 and 25 have been sent to the expert and in view of her report at Ex.P. 63 to 68, so the opinion of PW. 24 is the foundation stone on which the present complaint and FIR are standing.
54. Coming to the evidence of PW. 24, 99 Spl.C.C.No.5/2015 Zeenath, the incharge Sr. Scientific Officer, FSL, Madiwala, Bengaluru, on 1-08-2014, their laboratory has received a file and a sealed cover sent by Halasur Gate P.S. in the Cr.No.49/2012. That file was referred to their division and she receives that sealed cover. She also spoke about the contents of the said sealed cover. According to this lady, the documents found in the sealed cover were carefully and thoroughly examined by using scientific instruments. After her examination, it is her opinion that the person who wrote the standard signatures marked as S1 To S13, R1 to R6 did not write the questioned signature marked as QD1. The questioned signature marked as QD1 is produced by means of imitation 100 Spl.C.C.No.5/2015 forgery. Further, according to this PW. 24, the person who wrote the standard signatures marked as S14 to S27, R7 to R12 did not write the questioned signatures marked as QD2 to QD11. The questioned signatures marked as QD2 to QD11 are produced by means of imitation forgery. So, according to her, signatures of PW. 23 and 25 found on transfer orders are on account of imitation forgery. So, on the basis of this report, PW. 1 and even the IO have come to the conclusion that accused No.1 to 3 are responsible for the same and this illegal act was abated by accused No.4 to 8. But, in the cross-examination, none of the accused did not bother much in respect of this report, because, it did not attribute to a particular person. This is what she 101 Spl.C.C.No.5/2015 say in the cross-examination which is extracted as under:
"I cannot say as to who imitate the forged signature of Sri.H.N.Sathyanarayana Rao and Sri.J.V.Gaonkar on the disputed documents."
55. So, the entire case set up by the prosecution now falls like heap of cards. In this regard, when the report of PW. 24 is looked into separately, in Ex.P. 64, over leap of the document which reads as follows:
"1. The person who wrote the standard signatures marked as S1 to S13, R1 to R6 did not write the questioned signature marked as QD1. The questioned signature marked as QD1 is produced by means of imitation forgery.
2. The person who wrote the standard signatures marked as S14 to S27, R7 to R12 did not write the questioned signatures 102 Spl.C.C.No.5/2015 marked as QD2 to QD11. The questioned signatures marked as QD2 to QD11 are produced by means of imitation forgery."
56. So, according to me, this Ex.P. 64 definitely cannot enure to the benefit of the prosecution and this document cannot be the culprit finding document, because, the serious allegations made in respect of accused No.1 to 3 in respect of creation and concoction of documents and then forging of signatures have not been proved at all. Under such circumstances, commission of offence under Sec. 465 of Indian Penal Code falls to ground.
57. So far as the allegations made against accused Nos.4 to 8 that they have actively committed an offence of abating, because 103 Spl.C.C.No.5/2015 they have paid demanded bribe money towards getting their favourable transfer orders illegally is also not proved. In this regard, there are few more witnesses whose evidences, I would like to examine and discuss now.
58. Coming to the evidence of PW. 26 by name N.M.Kotresh who was a fruit merchant in Kottur, Kudligi Taluk, Bellary District, according to him, he knows 5th accused and 2nd accused, but he does not know the 7th accused. About 7 years back, he was also questioned by the CID police and according to him, in his presence 1 st accused has not produced any bank challans before the police and no panchanama at Ex.P. 69 was drawn by the 104 Spl.C.C.No.5/2015 CID police, but has identified his signature on Ex.P. 69. This witness completely turned hostile and in the cross- examination, his entire statement at Ex.P. 71 came to be denied by this witness.
59. Coming to the evidence of PW. 27 by name Asif Ulla, police constable attached to the CCB, Bengaluru. According to him, he knows accused Nos.5 and 6. In the year 2012, he had been to the CID office to give a letter and on that day, CID police have not seized any bank challans produced by accused No.5 and 6 in his presence, no panchanama was drawn and this witness completely denies panchanamas at Ex.P. 72 and 74 and he identifies his signatures at Ex.P. 72(a) and P.74(a). According to this 105 Spl.C.C.No.5/2015 witness, he does not know the contents of these panchanamas and also the bank challans. He was treated as a hostile witness, denies his statement, but in the cross-examination conducted by the 1st accused counsel, he comes out with an answer that if at all he has signed panchanamas, it is only at the instance of the higher police officers who insisted him to sign on those panchanamas at Ex.P. 73 and 75. So, this witness not only supported the case of the prosecution, but also makes the allegation that his higher police officers insisted him to sign on some of the documents for their convenience. So, even this police constable's evidence is of no help to them.
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60. Coming to the evidence of PW. 28, who was the Dy.S.P., according to this person, he has also worked in the Special Enquiry Squad of CID. He was acquainted with the handwriting and signature of C.K.Lingesh Kumar who was the IO. As he died during the course of investigation, this witness is examined to identify his signatures on some documents pertaining to this case. His examination-in-chief is to fill up the vacuum by identifying the signatures of C.K.Lingesh Kumar and the documents such as Ex.P. 17(c), 19(b), 20(b), 28(b), 34(c), 40(b), 41(c), 42(c), 43(b) and so forth. But, in the cross-examination, there is an admission that he did not work under Dy.S.P.Lingesh Kumar as there was no direction from his higher authorities. He 107 Spl.C.C.No.5/2015 also admits that in his presence, no panchanamas were drawn, which are connected to this case and no Material Objects much less Mos.1 to 5 came to be seized. According to me, merely because this witness identified the signatures of Lingesh Kumar, who has undertaken the investigation can make any meaning to his investigation.
61. Coming to the evidence of PW. 29 by name V.Sathyanarayana, who was the Chief Manager of SBI, Davanagere branch who receives a requisition on 29-01-2012 from the CID, Dy.S.P. asking him to furnish the ATM images of 06-10-2011 of their ATM footage installed in Apoorva Hotel Complex, Davanagere in between 108 Spl.C.C.No.5/2015 10.19 a.m. to 10.25 a.m. So, he deputed his engineers to take out the extract of the said ATM images and then forwarded the same to the Dy.S.P. Lingesh Kumar. Ex.P.81 and 82 came to be marked through this witness. Again there is an admission that he has not collected certificate under Sec.65B of the Indian Evidence Act from the person who has collected the information from ATM footages. According to this person, he had displayed the footage before sending the same to the Dy.S.P., CID, Bengaluru.
62. Now, this evidence assumes importance only when there is an allegation that wrongly or illegally some amount has been with drawn from the 109 Spl.C.C.No.5/2015 bank account of the accused No.1 by way of committing fraud through ATM machines. Now, for what purpose this PW. 29 was examined by the prosecution is not known. Even assuming that some amount is collected through this machine from the 1st accused's bank account, it can not show that it was towards the bribe amount. According to me, this exercise undertaken is futile. So, this exercise of collecting CCTV footages only to show that there was some conversation between accused No.1 who is the relative of accused Nos.4 to 8 or vice versa cannot be a relevant and quality evidence to bring home the guilt of the accused.
63. Coming to the evidence of PW. 30 by 110 Spl.C.C.No.5/2015 name Paramesh, resident of Parashurampura, Davanagere. He was examined by the CID about 7 to 8 years ago in respect of knowing the relationship of 1st accused with him. According to him, he has not seen the CID police seizing the mobile phone of the 1st accused, but they have obtained his signature on the panchanama. This witness identified his signature on panchanama at Ex.P. 77 and completely turned hostile and has not supported the case of the prosecution.
64. Coming to the evidence of another witness by name PW. 31, who was also a mahazar witness to Ex.P. 80 and according to him about 10 years back, he was called by the CID police to their office, his 111 Spl.C.C.No.5/2015 signature was taken on a paper and at that time, his son-in-law was also present and they have not seized the mobile phone of the 1st accused. This witness also turned hostile and has not supported the case of the prosecution in so far as seizure panchanama at Ex.P. 80.
65. Coming to the evidence of PW. 32, by name Nanjundappa, he was the vehicle driver in CID, Bengaluru and he claims to have known CW.42 C.K.Lingesh Kumar Dy.S.P. On 5-07-2012. According to him, he was called by CW.42, but he seized one LG mobile phone from the writer of the police department and drawn mahazar and his signature was also obtained. So, he identifies his signature at Ex.P. 80(c) and 112 Spl.C.C.No.5/2015 that mobile phone was marked at MO.5. But, he does not know that MO.5 belongs to whom. This witness turned hostile and denied all the prosecution suggestions and according to him, he does not know to whom MO.5 belongs. It was suggested to this person that MO.5 belonged to the accused No.3. This is totally denied and disowned by this witness. In fact, according to this person, he does not know the contents of Ex.P. 80.
66. As CW.42 Lingesh Kumar was no more, who had completed the investigation work, in spite of examining PW. 28, there are some influencing factors, it could not be explained to the satisfaction of this Court so far as accused Nos.4 to 8 113 Spl.C.C.No.5/2015 committing offence under Sec.10 of Prevention of Corruption Act, 1988, I should say, there is nil material and in the available oral testimonies, none of these police constables have directly approached accused Nos.1 or 3. Even if the role of the 2nd accused is considered, they do not suggest the fact that when was such demand for transfer to their place of choice was sought by these accused persons because to which neither there is any document nor any evidence.
67. More over, firstly, the IO must place the respective transfer applications of the alleged beneficiaries. Next, such transfer applications shall have to be registered separately and numbered and proceedings 114 Spl.C.C.No.5/2015 have to be drawn and finally transfer orders shall have to take place. Question now is how cum these procedures were circumvented in this alleged transfer orders. Without following proper procedure as per law and rules no transfer proceedings can be passed. The evidences of PW. 28, PW. 23 or 25 are silent as to when was the committee held its meetings to discuss about the modality of transferring some of the police constables inter district or what was the agenda of a particular meeting and what is the out come and minutes of such meeting. Because every such meeting shall have minutes, time, date and place. The claim of PW. 1 that he held a detailed preliminary enquiry also has not spoken about these 115 Spl.C.C.No.5/2015 aspects. The common phenomena is only when decisions are taken in a meeting by the committee, minutes are drawn, then that will culminate in passing of final transfer orders. In the instant case, the present case seems to have been projected before this Court stating that fake transfer orders have taken place without bringing to the knowledge of PWs. 23 and 25. It is at the cost of repetition stated that, issuing transfer orders are the ultimate work. It shall be preceded by proceedings of a meeting, noting down all the deliberations of such meetings, drawing minutes, then taking the signatures of the persons who participated in the meeting, then issuing transfer orders. There is separate procedure adopted for issuing transfer 116 Spl.C.C.No.5/2015 orders also. Such, transfer orders shall pass through different sections, should reach different offices then ultimately to the Home Ministry and lastly to the AG Office. When the alleged transfer orders which are the questioned documents submitted before the PW. 24 for her examination, none of those questioned documents or transfer orders contained questioned signatures were placed or submitted as many copies were sent to various departments. Under such circumstances, the role of each of the staff involved in this preparation, issuance, dispatch and circulation of the transfer orders in the police headquarters have not at all been questioned, their statements are not recorded and nothing is elicited in this 117 Spl.C.C.No.5/2015 regard. Moreover, it is for the prosecution to explain before the Court that how only accused Nos.1 and 3 as a public servants can create, generate and issue fake transfer orders.
68. Now this Court will have to finally ascertain as to whether there are worth evidence for consideration in order to appreciate for the alleged offences under Secs.13(1)(a), 13(2) and finally Secs.7 and 10 of Prevention of Corruption Act, 1988. In respect of Sec.7 and 10 of the said Act, this Court has repeatedly discussed that mere bank challans which are before the Court or the so called amount remitted by the relatives of the accused Nos.4 to 8 cannot be considered as a bribe amount. 118
Spl.C.C.No.5/2015 In this regard, the material witnesses have been examined, they vociferously gave evidence that the said amount remitted by them to the bank account of the 1st accused was not towards bribe, in turn according to them all of them were towards hand loan, financial assistance and the amount borrowed by the 1st accused to tide over his other financial constraints. The first trumph card of the prosecution that, the said acceptance of the amount belonging to the accused Nos.4 to 8 is a bribe amount falls to the ground. Admittedly on scanning of entire oral and documentary evidence, there is no scrap of material which show that both 1 st and 3rd accused demanded bribe. It is also elicited in the evidences of PWs.23 and 25 that 119 Spl.C.C.No.5/2015 they were not aware of the person who forged the signatures on the said transfer orders and the very fact that PWs.23 and 25 on their own have not given any complaint personally show that, as they did not know as to who was the person responsible for the said illegal act, they did not give a complaint.
69. Now, when the prosecution itself is not aware as to who is the culprit or who is the person, who has created fake transfer orders and forged the signatures, now the question of giving Exs.P. 2, 11 to 14 does not arise at all. When Ex.P. 2 is gone through, it was a direction to the Director, CID to hold a preliminary enquiry to ascertain as to who is the person 120 Spl.C.C.No.5/2015 responsible for the said illegal act. Admittedly, when Ex.P. 11 to 14 are gone through, there is no convincing material to show that rightly PW. 1 has formed an opinion which show that accused Nos.1 and 3 are responsible. As I have stated earlier, the incorrect conclusion that was arrived by PW. 1 to find fault with accused Nos.1 to 3 is meaningless. As I have said earlier, issuance or preparing transfer order is a last final act in respect of transferring of police constables process. There is no whisper as to when did the police constables, who were in need of transfer of inter-district transfer gave such application, who received their application, whether it was sent through the proper channel, what is that file, who is in custody 121 Spl.C.C.No.5/2015 of those files to which there is no material at all. When the evidence of PW. 1 and Ex.P. 11 are looked into, I am unable to understand as to how can a reputed investigating agency like C.I.D. can ignore this influencing factors. Only when PW. 1 or PW. 28 are able to show that there are cogent and cohesive materials pinpointing towards the involvement of accused Nos.1 to 3 in commission of these offences, then only Court can accept their version. So, far as the accused No.2 is concerned, since he is a private person, question of he committing alleged offences does not arise at all.
70. Coming to the role of accused Nos.1 and 3, merely because, they were attached 122 Spl.C.C.No.5/2015 to police headquarters office at Bengaluru to work on OOD basis cannot be a ground to suspect that the transfer orders are created by them by forging the signatures of concerned higher police officers.
71. In respect of accused Nos.4 to 8, either paying the demanded bribe amount or abetting accused Nos.1 to 3 to commit the said offences also does not arise at all. The present case is hit by non-examination of IO for the simple reason that CW.24 by name Lingeshwar, who was the Dy.S.P., C.I.D. died during the course of investigation. This is the greatest lacuna, which the prosecution could not over come. Even though in the place of CW.24, it has examined PW. 28, but his evidence is of no 123 Spl.C.C.No.5/2015 significance, because, he himself is not clear because he was not authorized to assist CW.24 and only because he worked under CW.24 as a police inspector, he claims to be familiar with his signature, hence, he appeared before the Court and gave evidence as PW. 28. Likewise, in his cross-examination, he gives an answer that all the mahazars drawn by CW.24 during the course of investigation was not in his presence. Likewise, Mos.1 to 4 were also not seized in his presence. By giving this evidence, he admits that he is only a name lender in this case and has appeared before this Court to identify the CW 24's signatures on all police records. According to me, the person who had full information in respect of the entire investigation under 124 Spl.C.C.No.5/2015 taken i.e. CW.24 is no more, so his role and his official act could not be put to cross-examination which is the requirement of the circumstance.
72. So far as seizure of Mos.1 to 5 are concerned, MOs. 1 to 4 are hard disks which are seized by CW.18 in the presence of CW.24. Coming to MO.5, which is the LG company mobile phone supposed to be belonging to the accused No.3 which was supposed to have been seized in the presence of CW.32, but this witness denied the same and also denied the fact that this MO.5 belonged to accused No.3. Even during the course of proceedings of this case, the accused No.3 did not move any application claiming the interim custody of 125 Spl.C.C.No.5/2015 MO.5. Under such circumstances, this MO.5 shall have to be confiscated to the State after completion of the appeal period. So far as MOs.1 to 4 are concerned, as they are the hard disks of the computer systems, which were made use of by the accused No.3, they will have to be preserved along with this file for future reference and its usage.
73. So far as the allegations made by the CW.24 against all the accused through his charge sheet have not at all been proved. First of all, hatching a criminal conspiracy, then involving in commission of offences under Secs.417, 465, 468 of the Indian Penal Code, then Sec.7, 10, 13(1)(a), 13(2) of Prevention of Corruption Act, 1988 have 126 Spl.C.C.No.5/2015 not at all been proved by the prosecution. In this regard I place my reliance in a reported decision in 2009 Crl.L.J. 3462 (SC) Harmanpreet Singh Ahluwalia and other Vs. State of Punjab and others; wherein it is held that for the purpose of constituting an offence of cheating, the complainant is enquired to show and prove that the accused had fraudulent or dishonest intention at the time of making promise or representation. But this aspect and element is not proved by the prosecution in this case. Most of the circumstantial witnesses have not supported the case of the prosecution. Even the staff who were working at I.G. and D.G. police headquarters at Bengaluru have not come to the rescue of the 127 Spl.C.C.No.5/2015 prosecution. More over, the evidence of PW. 1 and Ex.P. 2,11 to 14 are incomplete themselves and I should say lastly that the 2nd accused counsel highlighted in respect of improper procedure adopted by PW. 1 to hold a preliminary enquiry. As it was not a domestic enquiry, PW. 1 seems to have come to a conclusion in respect of involvement of accused Nos.1 to 8 in this case on the basis of surmises and conjectures, because, there are no pinpointing documents. Likewise, when the evidences of PW. 23 and 25 are looked into, none of them are able to say as to who committed the offences under Secs.465 and 468 of Indian Penal Code. For these reasons, I have answered all these 7 points in the negative. 128
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74. Having gone through the oral and documentary evidence and also having considered the reply of the accused vide their statement under Sec.313, it has only shown before the Court that prosecution has failed to prove the guilt of all the accused persons beyond all reasonable doubt. More over, all the mahazar witnesses including independent witnesses have not supported the case of the prosecution. The role of the IO in this case and his act of investigation could not be put to litmus test as he died during the course of investigation. Likewise, the evidence of PW. 23 and 25 are looked into, this Court feels that they are less serious in respect of the questioning forging of 129 Spl.C.C.No.5/2015 their signatures on fake transfer orders. According to them, they also does not suspect any persons in this regard. Under these circumstances, there is a miserable failure on the part of the prosecution to prove the charges leveled against accused Nos.1 to 8. Hence, I proceed to pass the following :
O R DE R The accused persons No. 1 to 8 are found not guilty of the offences alleged against them.
Acting under Sec.235 (1) of Cr.P.C., the accused Nos.1 to 8 are hereby acquitted of the offences punishable under Secs.465, 468, 417, 120B o f Indian Penal Code and Secs.7, 10, 13(1(a) and 13(2) of the Prevention of Corruption Act,1988.
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Spl.C.C.No.5/2015 The bail and surety bonds of the accused Nos.1 to 8 and their sureties shall stand hereby discharged.
M.Os.No. 1 to 4 shall be preserved along with this file like any others exhibits/documents and the MO.No.5, L.G. Company mobile phone is ordered to be confiscated to the State after completion of appeal period.
(Dictated to the judgment-writer, transcript thereof and then corrected and pronounced by me in the open Court on this the 18 th DAY OF FEBRUARY 2022).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
131
Spl.C.C.No.5/2015 A N N E XU RE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: N.Rameshchandra. PW.2: R.Nijaguna. PW.3: Chandan Raj Urs. PW.4: Shankar Naik. PW.5: Kemparaj Urs. PW.7: C.M.Asha. PW.8: Smt.Pavithra. PW.9: K.B.Shivaprasad. PW.10: K.Ganesh. PW.11: R.Lokesh. PW.12: K.V.Shashidar.
PW.13: Basavaraj S.Theggi.
PW.14: Srinivas.
PW.15: N.M.Halaswamy.
PW.16: Thippeswamy.
PW.17: N.Jagadish.
PW.18: Mallikarjun.
PW.19: Prakash.
PW.20: K.S.Srinivas Murty.
PW.21: Standley Hegnolo.
PW.22: P.Rathnakar Naik.
PW.23: H.N.Sathyanarayana Rao. PW.24: Neenath.M. PW.25: T.V.Gaonkar.
PW.26: N.M.Kotresh.
PW.27: Asifulla.
PW.28: S.R.Srinivas.
PW.29: V.Sathyanarayana.
PW.30: Paramesh.
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PW.31: Chandrappa.
PW.32: Nanjundappa.
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Memo issued by
S.P.Special enquiry.
Ex.P.2: Documents with Ex.P.1
Ex.P.2(a) to (d): Copies of Fax Messages
Ex.P.3: Covering letter of
S.B.I.Manager.
Ex.P.3(a): Signature of Manager,
Ex.P.4: S.B.Account bank
statement.
Ex.P.5: Statement of accused
No.1.
Ex.P.5(a & b): Signatures of A1 and
PW.1.
Ex.P.6: Statement of A6
Ex.P.6(a & b): Signatures of A6 & PW.1
Ex.P.7: Statement of A5
Ex.P.7(a& b): Signatures of A5 & PW.1.
Ex.P.8: Statement of A4
Ex.P.8(a & b): Signatures of A4 & PW.1
Ex.P.9: Statement of A7.
Ex.P.9(a & b) Signatures of A7 & PW.1.
Ex.P.10: Statement of
Shivaprasad.
Ex.P.10 (a & b): Signatures of
Shivaprasad & PW.1.
Ex.P.11: Detail report of PW.1 to
SP, CID.
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Spl.C.C.No.5/2015
Ex.P.11(a): Signature of PW.1.
Ex.P.12: Memo of D.G.C.I.D.
dtd.1-02-2012.
Ex.P.12(a): Signature of PW.1.
Ex.P.13: Complaint.
Ex.P.13(a): Signature of PW.1.
Ex.P.14: Memo of DG, CID
dtd.16-02-2012.
Ex.P.15: 161 statement of PW.2.
Ex.P.16: Bank Voucher.
Ex.P.16(a & b): Signatures of PW. 3 & 6.
Ex.P.17: Panchanama regarding
voucher.
Ex.P.17(a to c): Signatures of PW.3 & 6
and CW.42.
Ex.P.18: 161 statement of PW.3.
Ex.P.19: Bank voucher(challans)
Ex.P.19(a & b): Signatures of PW.4 and
CW.42.
Ex.P.20: Bank certificate.
Ex.P.20(a & b): Signatures of PW.4 &
CW.42.
Ex.P.21: 161 statement of PW.4
Ex.P.22: 161 statement of PW.5.
Ex.P.23 161 statement of PW.6
Ex.P.24: 161 statement of PW.7
Ex.P.25: Transfer order of A1.
Ex.P.26 Transfer order of A6.
Ex.P.27 Inter District Transfer
order of A1.
Ex.P.28 Bank challan of SBI.
Ex.P.29 Sec.161 Statement of
PW. 10.
Ex.P.30 Call list between A3 &
PW.11.
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Spl.C.C.No.5/2015
Ex.P.31 Sec.161 statement of PW.
12.
Ex.P.32 Sec.161 statement of PW.
13.
Ex.P.33 Sec.161 statement of PW.
14.
Ex.P.34 A2's House search
panchanama.
Ex.P.34(a to c) Signatures of PW15, 16
& CW42,
Ex.P.35 Sec.161 statement of PW.
15.
Ex.P.36 Seizure of Motorcycle
panchanama.
Ex.P.36(a & b) Signatures of PW. 16 &
42.
Ex.P.37 Sec.161 statement of PW.
15.
Ex.P.38 Copy of bank passbook
of PW. 17.
Ex.P.39 Copy of bank challan.
Ex.P.40 Hard disk seizer
panchanama.
Ex.P.40(a to b) Signatures of PW. 18 &
CW.42
Ex.P.41 Hard disk seizer
panchanama.
Ex.P.41(a to c) Signature of PW. 18, 19
& CW.42.
Ex.P.42 Hard disk seizer
panchanama.
Ex.P.42(a to c) Signature of PW. 18, 20
& CW.42.
Ex.P.43 Hard disk seizer
panchanama.
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Spl.C.C.No.5/2015
Ex.P.43(a & b) Signature of PW. 18 &
CW.42.
Ex.P.44 Covering letter of Airtel
Company.
Ex.P.44(a) Signature of PW. 21.
Ex.P.45 Call details of mobile
Number 9632330875
Ex.P.46 Call details of mobile
Number 974012037
Ex.P.47 Attested copy of
application for obtaining
sim.
Ex.P.48 Attestedcopy of
K.S.Chaithanya for
obtaining sim.
Ex.P.49 Portion of Sec.161
statement of PW. 21.
Ex.P.50 Covering letter of BSNL
Nodal Officer.
Ex.P.50(a) Signature of PW. 22.
Ex.P.51 Certificate u/s 65B of IE
Act.
Ex.P.52 Call details of Mobile
number 9449002880
Ex.P.53 to 60 8 fake inter district
transfer orders.
Ex.P.61 6 sheets of specimen
signatures of PW. 23.
Ex.P.62 C.T.Cs. of PW. 23.
Ex.P.63 Sample seal of FSL.
Ex.P.63(a) Sign of PW. 24.
Ex.P.64 FSL Report.
Ex.P.64(a) Signature of PW. 24.
Ex.P.65 Scientific reasons for
opinion in Ex.P. 64.
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Ex.P.65(a) Signature of PW. 24.
Ex.P.66 8 sheets of enlarged
signatures of
J.V.Gaonkar &
H.S.Sathyanarayana.
Ex.P.66(a) Signature of PW. 24.
Ex.P.67 6 sheets containing
standard signatures of
J.V.Gaonkar.
Ex.P.68 6 sheets of specimen
signatures of
J.V.Gaonkar.
Ex.P.69 Panchanama for seizure
of challans.
Ex.P.69(a) Signature of PW. 26
Ex.P.70 Bank challans of Canara
Bank.
Ex.P.71 Sec.161 statement of
PW. 26.
Ex.P.72 Panchanama pertains to
bank challans of A6.
Ex.P.72(a) Signature of PW. 27.
Ex.P.73 Three bank challans.
Ex.P.73(a) Signature of PW. 27.
Ex.P.74 Panchanama pertains to
the bank challans.
Ex.P.74(a) Signature of PW. 27.
Ex.P.75 Bank challan.
Ex.P.75(a) Signature of PW. 27.
Ex.P.76 Sec.161 statement of PW.
27.
Ex.P.77 Panchanama dtd.01-03-
2012.
Ex.P.77(a & b) Signatures of CW.42 &
PW. 30.
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Ex.P.78 Panchanama dtd.14-03-
2012.
Ex.P.78(a) Signature of CW.42.
Ex.P.79 Panchanama dtd.19-03-
2012.
Ex.P.79(d) Signature of CW42.
Ex.P.80 Panchanama dtd.05-07-
2012.
Ex.P.80(a to c) Signatures of CW.42,
PWs.31 & 32.
Ex.P.81 Letter of Manager, SBI,
Davanagere.
Ex.P.81(a) Signature of PW. 29.
Ex.P.82 C.D. (including ATM
images).
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: I.T.B. Hard disk. MO.2: 80GB Hard disk.
MO.3: 160 GB Hard disk.
MO.4: 80 GB Hard disk.
MO.5: L.G. Company mobile.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL 138 Spl.C.C.No.5/2015 LIST OF DOCUMENTS MARKED FOR ACCUSED:
NIL (S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.