Bangalore District Court
Lokayukta Police Inspector vs A. Srinivasa Rao on 28 March, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 28th day of March 2018
Spl.C.C. No.162/2013
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: 1. A. Srinivasa Rao
S/o Appaji Rao, Aged 56 years,
Asst Administrator,
Office of the Deputy Police
Commissioner, South East
Division, Koramangala, Bengaluru.
2. Narayanaswamy, Second Division
Assistant, Office of the Deputy
Police Commissioner, South East Division,
Koramangala, Bengaluru.
3. B.S.Patil, Section Officer, Office of the
Deputy Police Commissioner, South
East Division, Koramangala, Bengaluru.
(By Sri. K.Janardhan- Adv. for A.1 & 2
Sri. P.N.Hegde -Adv. for A.3)
2 Spl.C.No.162/2013
Date of commission of
offence 15-06-2012
19-06-2012
Date of report of occurrence
Date of arrest of accused: 19-06-2012
Date of release of accused 22-06-2012
on bail:
Date of commencement 07-12-2016
of evidence
Date of closing of 26-02-2018
evidence
Name of the complainant Sri.K.M.Shivakumar
Offences complained of U/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge Acquitted
Date of Judgment: 28-03-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused Nos.1 to 3 for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988 (In short PC Act).
2. The brief facts of the prosecution case is as under:-
Accused No.1, A.Srinivas Rao is the Assistant Administrative officer, Accused No.2, Narayanaswamy is Second 3 Spl.C.No.162/2013 Division Assistant and Accused No.3, B.S.Patil is Section Superintendent in the office of DCP-South East, Bengaluru and are public servants. Complainant K.M.Shivakumar gave a complaint on 19.06.2012 stating that when he was working as police constable in JP Nagar Police Station, he was suspended from 03.04.2010 to 27.05.2011 and later, order has been passed by considering his suspension period as on duty and complainant has produced those documents to DCP, South East, for preparing bill for salary arrears. Accused Nos.1 to 3 who were working in the said office have demanded Rs.8,000/- from complainant to prepare arrears bill and complainant paid Rs.4500/- to them in January. Thereafter, even after six months the work of the complainant is not done. Accused persons have several times called the complainant by phone and asked him to pay the amount for preparing the bills and stated that amount already paid is for bill of medical leave and for the suspension period arrears he has to pay separately. Thereafter on 15.06.2012 complainant went to DCP's office and met accused No.1 to 3 and they have again demanded bribe of Rs.10,000/- and then brought it down to Rs.5,000/- to do the work of the complainant. The complainant has recorded the conversation and then he came to Lokayukta office and gave complaint on 19.06.2012. On receiving the complaint, the 4 Spl.C.No.162/2013 Lokayukta police have registered the FIR in Cr.No.52/2012. By securing two panchas Lokayukta Police have conducted pre- trap proceedings. After making arrangements to trap the accused, trap team went to DCP South East office and in the chamber of accused No.1 in the presence of accused No.2, accused No.1 has received the tainted notes of Rs.5,000/- from complainant and kept it in between magazine and newspaper which was on the side of the table and accused were trapped. The Lokayukta police have recovered the tainted currency notes of Rs.5,000/- from accused, trap mahazar was drawn, accused were arrested and later released on bail. The Investigating Officer has continued further investigation and after completion of investigation and after obtaining the sanction to prosecute the accused, filed charge sheet before this Special court for the offences under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act.
3. Cognizance of offences is taken by this court. Accused have appeared and are enlarged on bail. Copy of charge sheet and its enclosures are furnished to them. After hearing both sides regarding framing of charge and having found prima-facie materials, charges are framed and read over to Accused. Accused have pleaded not guilty and claimed to be tried.
5 Spl.C.No.162/20134. In support of the prosecution case PWs 1 to 6 are examined. Documents as per Exs.P.1 to P.27 are marked. For the prosecution MOs 1 to 11 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and the accused have denied all the incriminating evidence appearing against them. The accused have not chosen to lead any defence evidence.
6. Heard the arguments by learned Public Prosecutor and also arguments by Learned counsel for Accused Nos.1 to 3 and perused the records. Learned Counsel for accused No.1 and 2 has also filed written arguments.
7. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that accused Nos.1 to 3 being public servants working as Assistant Administrative Officer, Second Division Assistant and Section Superintendent respectively, in the office of DCP South East, Koramangala, Bengaluru, when complainant met them with request to clear his salary arrears for the period of suspension which was treated as on duty, have demanded and received bribe of Rs.4,500/- and again when the complainant approached them after 6 months on 15.06.2012, accused have demanded another Rs.10,000/- for preparing the arrears bill and then 6 Spl.C.No.162/2013 scaled it down to Rs.5,000/- and on 19.06.2012 in the chamber of accused No.1 in the DCP office, South East, Koramangala, Bengaluru between 3.00 to 3.40 p.m. accused No.1 demanded and accepted Rs.5,000/- from complainant for himself and accused Nos.2 and 3 as illegal gratification as a motive or reward to do official act or to show an official favour to the complainant and thereby all the accused Nos.1 to 3 have committed an offence punishable u/s 7 of Prevention of Corruption Act?
2. Whether the prosecution further proves beyond all reasonable doubt that accused Nos. 1 to 3 being public servants working as Assistant Administrative Officer, Second Division Assistant and Section Superintendent respectively in the office of DCP South East, Koramangala, Bengaluru, on 19.06.2012 between 3.00 p.m. to 3.40 p.m. in the chamber of accused No.1 in DCP office, by corrupt or illegal means or by abusing their position as public servants demanded and accused No.1 obtained pecuniary advantage of Rs.5,000/- for himself and Accused Nos.2 and 3, without public interest, from complainant and thereby accused Nos. 1 to 3 have committed offence of criminal misconduct u/s 13(1)(d) of Prevention of Corruption Act which is punishable u/s 13 (2) of Prevention of Corruption Act?
3. What order?
8. My findings on the above points are :-
Point No. 1 : In the Negative Point No. 2 : In the Negative Point No. 3 : As per final order, for the following:7 Spl.C.No.162/2013
REASONS
9. Point No.1 & 2 : To avoid repetition of discussion and as both these points are interlinked with each other, they are taken together for consideration.
10. The case of the prosecution is that, for preparing and clearing arrears bill of the complainant for the period of his suspension from 03.04.2010 to 27.05.2011, accused have demanded bribe and on the date of trap, accused No.1 has received Rs.5,000/- tainted notes from complainant for himself and on behalf of accused Nos.2 and 3 and amount was recovered from them and thereby accused Nos.1 to 3 have committed the offences alleged against them.
11. For prosecution, PWs 1 to 6 are examined. PW.2 is complainant. PWs 1 and 3 are panch witnesses. PWs 4 and 5 are the officials of the DCP South East office and PW.6 is the Investigating Officer.
12. PW2, K.M.Shivakumar, complainant, in his evidence has stated that when he was working in JP Nagar Police Station, he was suspended and later order has been passed treating suspension period as on duty and after his transfer to Mico Layout Police Station gave application for arrears of salary for the period of suspension in the office of DCP South East, Bengaluru in which accused Nos.1 to 3 were working. He has 8 Spl.C.No.162/2013 stated that when he met accused Nos.2 and 3 they had taken him to accused No.1 and all the accused have demanded Rs.10,000/- and finally demanded Rs.5,000/- and he recorded the conversation in the mobile and thereafter transmitted the same to the CD and along with the CD he gave complaint on 19.06.2012 as per Ex.P.12. PW.2 has also stated that in the Lokayukta office, Lokayukta Police Inspector secured PWs 1 and 3 as panch witnesses and he produced Rs.5,000/- as the amount brought by him for giving bribe and number of notes were noted down on Ex.P.1 and thereafter powder was applied to the notes and PW.1 kept the tainted notes in his left side shirt pocket and hands of PW.1 were washed and solution which turned to pink colour were seized. The witness has also stated that entire process was video-graphed and then transmitted to CD. He has also stated that he was instructed to give the tainted notes to accused, only on demand and to give signal by wiping his head with right hand and button camera and voice recorder were given to him and PW.3 was instructed to follow him as shadow witness and pre-trap mahazar as per Ex.P.2 was prepared. PW.2 has also stated that after completing the pre-trap proceedings, at 2.45 p.m., trap team proceeded towards DCP office, Koramangala and vehicle was stopped at a distance of 200 feet. He has stated that he along 9 Spl.C.No.162/2013 with PW.3 went to approach accused and when entered chamber of accused No.1, he asked him to wait for sometime and asked him to bring accused No.2 to his chamber and when accused No.2 also came, accused No.1 told that the work will be got done by asking Writer Sonnappa and demanded money and then he offered to give the tainted notes, accused gave signal to keep it on the table and on he keeping the tainted notes accused No.1 pushed the notes with left hand into a magazine which was on the table and thereafter he flashed signal. PW2 has also stated that immediately trap team came and he has shown the accused No.1 and 2 and Investigating Officer called accused No.3 also and accused No.1 told that tainted notes are in the magazine and tainted notes were collected through panchas and it was verified and tallied with the numbers noted down earlier. He has stated about hand wash of accused No.1 in sodium carbonate solution and stated that left hand wash turned to pink colour and right hand wash has not changed the colour and stated that entire trap proceedings was video-graphed and trap mahazar as per Ex.P.3 was prepared. He has also stated that documents relating to his application was collected from Girish PW.4 and recording in button camera and digital voice recorder given to him earlier were transmitted to CD and was seized.
10 Spl.C.No.162/201313. In his cross examination, PW2 has admitted that he has not given his mobile or chip in the mobile containing the conversation with accused, but he has given CD containing the conversation. He has admitted that for preparing the arrears bill, application is to be given in HRMS and has stated that he do not remember date on which he has given application. He has admitted that PW3 Narayana was sitting in the waiting hall when he entered the chamber of accused No.1 and PW.1 was also in the waiting hall. He has admitted that when he entered the chamber of accused No.1, he was talking with three other persons. He has also stated that accused No.1 was asked him to wait and he waited outside his chamber. PW.2 has admitted that when accused No.1 was talking with three persons in his chamber, he kept the tainted notes below a newspaper which was on the table of accused No.1 and has also admitted that accused No.2 was not in the chamber of accused No.1 at that time. He has also admitted that he gave signal, thereafter Lokayukta Police Inspector came inside the chamber and he told the Inspector that the amount is kept below the newspaper. He has also admitted that Lokayukta Police Inspector asked accused No.1 to hand over tainted amount to PW.1 and accused No.1 gave amount to PW1. He has also admitted that at the time of trap, even the public who had 11 Spl.C.No.162/2013 come to the office of accused No.1 were present. He has admitted that DCP is the signing authority for the bill after it is prepared. He has admitted that accused Nos.1 and 2 had no role to play in preparing and passing of the arrears bill. He has admitted that trap panchanama is prepared in the Lokayukta office.
14. PW.3 V.Narayana is shadow witness. He has stated that as per instructions of his higher officer, himself and PW1 went to Lokayukta office and met Lokayukta Police Inspector. This witness has turned hostile to the prosecution case. When he was cross-examined by treating him as hostile, he has denied all the suggestions put to him except admitting that on 19.06.2012 he went to Lokayukta office and that number of notes were noted down on Ex.P.1 and he has signed Ex.P1 and 2 and they went to DCP North East office and Lokayukta Police Inspector reminded the instructions given earlier and admitted that he has taken out the tainted notes which was kept between Sudha and Indian Express newspaper and note numbers were tallied with Ex.P1 and he has signed trap mahazar Ex.P3. In cross-examination for accused Nos. 1 and 2 he has admitted that at the time of trap he was not inside the room but he was sitting in waiting room.
12 Spl.C.No.162/201315. PW.1 B.G.Shivaramaiah is another panch witness. He has stated that as per the direction of his higher officer, he went to Lokayukta office and met PW.6 on 19.06.2012. He has stated about pre-trap proceedings done in the office of PW6 in his presence and also drawing pre-trap Mahazar as per Ex.P.2. PW1 has stated that trap team left Lokayukta office at 2.00 p.m. and they reached near office of accused at 2.45 p.m. and instructions were reminded and complainant and PW3 went to the office of accused and other members waited at a distance of 50 feet and after 15 minutes, complainant gave signal and immediately they all entered the office of accused No.1 and complainant shown accused No.1 and told that amount is paid to him and Lokayukta Police Inspector introduced himself and on his instructions he took out the currency notes kept in between Sudha and Indian Express Newspaper on the table and it tallied with Ex.P.1. He has also stated that sodium carbonate solution was prepared and hands of accused No.1 were washed and solution turned to pink colour and was seized in a bottle and proceedings was video-graphed and newspaper and Sudha magazine are also seized and trap mahazar Ex.P.3 was prepared and he has signed the same. PW1 was treated partly as hostile and was cross-examined by Learned Public Prosecutor. In his cross-examination he has admitted the 13 Spl.C.No.162/2013 suggestions put to him about the prosecution case. He has admitted the transcription prepared as per Ex.P.4 of the conversation recorded in the C.D. between complainant and accused and also transcriptions at Ex.P5 taken at the time of trap and also about seizing of the documents pertaining to pay arrears of complainant and the attendance register as per Ex.P6 and P.8 to 10. In his cross-examination for accused Nos.1 and 2, PW.1 has stated that he has seen accused only on the day of trap and admitted that when CD was played he was not knowing that the voice heard was belonging to particular accused. He has admitted that during the proceedings PW.3 Narayana was sitting in the waiting hall. He has admitted that in his presence no mobile phone or memory chip was seized. When the witness was cross-examined for accused No.3, he has admitted that he has not put his signatures on Ex.P2 and Ex.P3 after reading and understanding the contents.
16. PW.4 Girish Kumar, has stated that he was working in account section as computer operator in DCP South East office during the relevant period. He has stated that on revocation of suspension order of PW2, there was due of about 14 months salary to PW2 and in HRMS, the bill for 9 months arrears was generated and arrears bill for remaining months was not generated due to technical problems and has stated 14 Spl.C.No.162/2013 that on application of PW2, accused No.1 had called him and enquired as to what steps are taken. He has stated that subsequently he came to know that accused were trapped by Lokayukta police and he has produced the application of PW2 and he was summoned to Lokayukta office, wherein audio recordings were played and he could not identify the voice as was not audible. This witness has turned hostile to the prosecution case and is cross-examined by Learned Public Prosecutor. In cross-examination by Learned Public Prosecutor the witness has denied his statement as per Ex.P.16. When witness was cross-examined for accused Nos. 1 and 2 he has denied that PW.2 complainant had not given any such application for preparing the arrears bill.
17. PW5, Sankarappa K.Alagavadi was working as FDA in DCP office, South East and has stated that in 2012, Lokayukta police had come to his office and he was informed that accused are trapped and as per the instructions of Lokayukta Police Inspector he had written the report as per Ex.P.17 and he was asked to come to Lokayukta office. The witness has stated that in the Lokayukta office some photographs were shown to him through computer and he could not recognize the visuals in the photographs and some audio recordings were also played, but as voice was not clear, 15 Spl.C.No.162/2013 he could not recognize the voice. The witness was treated as hostile by Learned Public Prosecutor and was cross-examined. In his cross-examination he has admitted that accused were his colleagues and has denied that he has written Ex.P17 by knowing the contents and has also denied that he has seen and heard the recordings played before him and identified the accused persons in the visuals and their voice in the audio.
18. PW.6 Renuka Prasad is Investigating Officer in this case. He has stated about registering of complaint in Cr.No.52/2012 and securing PWs 1 and 3 and has stated about other activities of the pre-trap and also stated about pre-trap mahazar and instructions given to complainant and stated that PW.3 was asked to accompany the complainant as shadow witness. He has stated that conversation recorded in the voice recorder was transmitted to CD and CD was seized and has given digital voice recorder to the complainant with instructions to switch on the same while meeting the accused. PW6 has also stated that after pre-trap proceedings they left Lokayukta office and reached DCP office at 2.40 p.m. and vehicles were parked at a distance and after reminding the instructions, PWs 2 and 3 were sent to the office of DCP and others waited for the signal. PW6 has stated that at 3.40 p.m. PW2 came out and flashed signal and they all went inside DCP office and PW2 16 Spl.C.No.162/2013 took them to chamber of accused No.1, wherein accused Nos.1 and 2 were sitting. He has stated that PW2 informed that accused No.1 has received tainted notes of Rs.5,000/- and thereafter he disclosed his identity and ascertained the details of accused Nos.1 and 2 and complainant informed about the happenings and he asked accused No.1 to call accused No.3 and then accused No.3 also came there. He has also stated about hand wash of accused No.1 and stated that left hand wash changed to light pink colour and right hand wash has not changed the colour. PW.6 has also stated about recovery of tainted notes from table of accused No.1 and also stated about following of other procedures of trap and also about wiping the place where tainted notes were found by cotton piece and seizing of cotton piece, Sudha and Indian Express. PW6 has also stated about recording of statement of witnesses and also identification of voice of accused recorded in the conversation by PW5. He has also stated about further investigation done by him and about filing charge sheet after investigation and after obtaining prosecution sanction order. In the cross- examination, PW6 has stated that he has enquired the complainant as to when he has given application for arrears and has stated that he has collected the copy of application given by the complainant which is part of Ex.P.6. He has 17 Spl.C.No.162/2013 stated that he has not seized the original devise like digital voice recorder in which the complainant has recorded the conversation and he has not taken sample voice of accused Nos.1 and 2. He has stated that he has not sent the alleged conversation to the Forensic Science Laboratory to ascertain the voice of accused Nos.1 and 2 and admitted that at the time of trap, complainant alone had gone inside the chamber of accused No.1 and shadow witness was sitting outside. He has denied that when accused No.1 was talking with three other strangers, PW2, without the knowledge of accused No.1, kept the amount under the magazine on the table. He has denied that he asked accused No.1 to take out the amount from the magazine and after he taking out the amount, his hand wash was made. He has stated that he has not produced certificate under Sec.65-B of Indian Evidence Act with regard to the CD's and transcriptions. In his cross-examination for accused No.3, PW.6 admitted that in Ex.P4 transcription, there is no direct demand of amount by accused No.3. He has admitted that in the recordings in button camera, accused No.3 is not seen. He has also admitted that when he entered the chamber of accused No.1, accused No.3 was not there and he was sitting in a separate chamber from which he was secured. He has 18 Spl.C.No.162/2013 admitted that before PW.4 identifying the voice, he was not knowing which voice was of which accused in the recordings.
19. For the prosecution documents are marked as Exs.P.1 to P.27. Ex.P12 is the complaint and FIR is marked as Ex.P.18. The sheet containing number of currency notes is marked as Ex.P.1. The pre-trap mahazar is marked as Exs.P.2. Ex.P.3 is trap mahazar. Ex.P.4 is alleged transcription of the conversation had between complainant and accused persons before giving complaint. Ex.P.5 is the transcription of the conversation held between complainant and accused at the time of trap. The file pertaining to the work of complainant is marked as Ex.P.6. Ex.P.7 is copy of attendance register. Exs.P.8 to 10 are the written explanation given by accused Nos.1 to 3. The sample seal is marked as Ex.P.11. The prosecution sanction orders in respect of accused Nos.1 to 3 are marked with consent as Exs.P.13, 14 and 15. The statement of PW4 is marked as Ex.P.16. Ex.P.17 is the report stated to have been given by PW5. The spot sketch is marked as Ex.P.19. The Sudha magazine and Indian Express newspaper are marked as Exs.P.20 & 21. The acknowledgment given by PW.1 for taking the seal is marked as Ex.P.22. The service details of accused are marked as Ex.P.23 and 24. Chemical examination report is marked as Ex.P.25. Ex.P.26 is 19 Spl.C.No.162/2013 the sketch prepared by the Assistant Engineer of PWD. The call details are marked as Ex.P.27. For the prosecution material objects are marked as MOs 1 to 11. The seized cash of Rs.5,000/- is marked as MO.1. Bottles containing the solution seized at different stages are marked as MOs 2 to 6. The cotton piece is MO-7. The CD seized in this case are marked as MOs 8 to 11. At the time of giving statement under Sec.313 of Cr.P.C. accused No.1 has produced information obtained under the Right to Information Act from Public Information Officer of DCP South East office stating that P.C. 8795 Shivakumar has not given any application for allowance.
20. In order to bring home the guilt of the accused for the offences punishable under section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, prosecution have to prove that they being public servants have demanded and accepted illegal gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. Under section 20 of the P.C.Act, there is presumption available in respect of offence under Section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon the accused only when prosecution discharges the initial burden of proving that accused have demanded and accepted 20 Spl.C.No.162/2013 illegal gratification. On proof of demand and acceptance, presumption can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7. On proof of commission of offence under Section 7, the offence of criminal misconduct under Section 13(1)(d) will also be established.
21. Admittedly, accused Nos.1 to 3 are public servants. As the offences alleged against the accused are under the Provisions of Prevention of Corruption Act previous sanction to prosecute them from the competent authority is necessary. The prosecution sanction order given against the accused are marked by consent as Exs.P.13, 14, 15. Learned counsel for accused Nos. 1 to 3 have submitted their no objection to the prosecution sanction order and have not disputed the same. Therefore, the prosecution has proved that there is valid sanction to prosecute the accused.
22. As per prosecution case, when complainant met accused persons with request to prepare his arrears bill for the period of suspension, they have demanded bribe from complainant. In Ex.P.12, it is stated that accused demanded Rs.8,000/- and complainant paid Rs.4500/- and thereafter accused have contacted him by phone and asked him to pay bribe again for preparing the bill for suspension arrears by 21 Spl.C.No.162/2013 stating that amount already paid is in respect of medical leave. In Ex.P.12, it is also mentioned that on 15.06.2012 accused have again demanded Rs.10,000/- and then brought it down to Rs.5,000/- and thereafter complaint is given. In respect of alleged demand and payment of some amount by complainant to accused persons prior to 15.06.2012, there is no such evidence before the court. In respect of demand of bribe on 15.06.2012, it is stated that the conversation with accused is recorded and complainant has produced digital voice recorder along with complaint. PW.2 complainant in his evidence has also stated about the demand of bribe amount by accused persons prior to giving of complaint. The voice recorder alleged to have been produced by complainant is not seized in this case. PW.6 in his cross-examination has clearly admitted that he has not seized the original devise i.e. digital voice recorder in which complainant has recorded the conversation. In Ex.P.2 pre-trap mahazar, it is mentioned that complainant has produced the digital voice recorder and it was played through computer and the conversation has been transcribed and the conversation has been transmitted to CD and CD has been seized as Article No.1. However, PW2 has admitted that he has not given any mobile or chip in the mobile containing the conversation with accused, but has produced the CD. The 22 Spl.C.No.162/2013 transcription of the conversation is also produced and marked as Ex.P.4. The CD article No.1 is marked as MO8 in the evidence of PW6. Therefore, as per the pre-trap mahazar, the voice recorder was played before the panchas through computer and the conversation recorded there is transmitted to CD as per MO.8 and the transcription is also produced at Ex.P.4 and it contains the conversation in which bribe is said to have been demanded by accused Nos.1 to 3. However, in cross- examination of PW6 for accused No.3 witness has clearly admitted that in the transcriptions at Ex.P4 there is no specific demand for bribe made by accused No.3. Even with regard to other accused as admitted by PW6, original voice recorder is not seized. Even at the time of trap, there was conversation between complainant and accused which is said to have been recorded in button camera and in digital voice recorder and these recordings were transmitted to CD and CD is seized as article No.10 as mentioned in Ex.P.3 trap mahazar and is produced as MO-10. The transcription is marked as Ex.P.5. Even there are other two CDs containing recording of pre-trap and trap proceedings which are marked as MOs.9 and 11.
23. The CDs produced in this case are marked as MO-8 to 11. Among which, MO-8 and 10 are said to be containing conversation recorded on 15.06.2012 and at the time of trap on 23 Spl.C.No.162/2013 19.06.2012. Original voice recorder and button camera are not seized in this case as admitted by PW.6. PW.6 has admitted that conversations are not sent to Forensic Science Laboratory to identify the voice. Though it is the prosecution case that PWs 4 and 5 have identified the voice of accused when recordings were played before them, both these witnesses have turned hostile and have stated that they could not identify the voice of accused. Therefore, evidence of PW.4 and 5 does not help the prosecution to prove the voice in conversation recorded in MO-8 and 10, as that of accused Nos.1 to 3. Even with regard to Exs.P.4 and 5, there is no evidence to prove that said conversation is made by accused. Though, there is a report of PW.5 as per Ex.P.17, the witness has stated that he has written the report as stated by Lokayukta police. Therefore, there is no evidence before the court to prove that voice in CDs, MO-8 and 10 is that of accused No.1 to 3.
24. Apart from this, original voice recorder or button camera in which conversation was recorded are not seized and not produced before the court. The C.D. at M.O.8 to M.O.11 containing the conversation, pre-trap-proceedings, trap proceedings and transcriptions at Ex.P4 and Ex.P5 are not original records, but are only copies. The Learned Counsel for the accused have submitted that these CDs and the 24 Spl.C.No.162/2013 transcriptions are not admissible in evidence, as they are secondary evidence of electronic records and are not supported by certificate under section 65-B of Indian Evidence Act.
25. In a decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records and has held that when the secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act. As original device in which recordings are made is not produced before the court and the CDs which are produced and the transcriptions which are produced are not supported by certificate under section 65B of the Indian Evidence Act, these documents at Ex.P.4 and Ex.P5 and MO.8 to MO.11 are not admissible in evidence.
26. The Call details are also produced at Ex.P27 by the prosecution. In the complaint it is stated that accused persons have contacted the complainant through mobile on many dates and have demanded the bribe. Regarding this, the call details are stated to have been obtained and produced. Even in respect of call details, there is no certificate under section 65B 25 Spl.C.No.162/2013 of the Indian Evidence Act produced before the court. In a decision of Hon'ble Supreme Court in Crl. Appeal No.2539/2014 between Harpal singh Vs- State of Punjab dated 21.11.2016, in para No.11, Hon'ble Supreme Court has held as under:
" Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and
27 have endeavoured to prove on the basis of the printed copy of the computer generated call details, kept in usual ordinary course of business and stored in a hard disc of the company sever, to complaint-relate the calls made from and to the cell phones involved including those amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under section 65B(4) of the Act. though the High court, in its impugned, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under section 65 of the Act had been complied with, in the teeth of the decisions of this court in Anvar P.V.(supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the complainant, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65(2) had been complied with, in absence of certificate under Section 65B (4) , the same has to be held inadmissible in evidence.
26 Spl.C.No.162/2013This court in Anvar P.V.(supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence can not be admitted in evidence unless the requirements of Section 65B are satisfied. The conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above."
27. In view of this decision, printed copies of call details produced at Ex.P.27 is in-admissible in evidence and it will not help the prosecution. Therefore, prosecution have to establish its case of demand of bribe by accused in the absence of call details and also alleged recorded conversation between the accused and complainant. In the absence of these records, only evidence available before the court to prove the alleged demand of bribe by accused persons is the evidence of PW.2. PW.2 in his evidence has not stated the dates on which accused have demanded the bribe amount. He has stated that he had met accused Nos.2 and 3 and they had taken him to accused No.1 and then there was demand for bribe made by accused. In his cross-examination, PW.2 has clearly admitted that DCP is the signing authority for the bill and admitted that after signing of the bill by the DCP, it will directly go to treasury 27 Spl.C.No.162/2013 and from treasury, amount will be credited to bank account. He has admitted that accused Nos.1 and 2 had no role to play in preparing and passing of arrears bill. He has stated that he do not remember on what date he has given application for arrears bill. The evidence of PW.4 show that arrears bill of complainant was generated for 9 months and arrears salary bill for remaining months was not generated due to technical problems. There is no other evidence to support the contention of PW2 about demand of bribe by accused. As admitted by PW2, accused had no role to play in preparing and passing of arrears bill. When accused are not in a position to prepare or pass the arrears bill and it is DCP who is signing authority for the bill and it is to be prepared through HRMS and bill for few months was not generated due to technical problems as stated by PW4, alleged demand of bribe by accused does not get established by only evidence of PW2. Under such circumstances, the prosecution has failed to prove the alleged demand of bribe amount by the accused Nos.1 to 3 prior to lodging of the complaint.
28. It is stated in Trap Mahazar that accused No.2 directed complainant to pay the amount and then he offered to give the tainted notes and then signal was given to keep the amount on the table. Therefore, even at the time of trap, 28 Spl.C.No.162/2013 accused Nos.1 and 2 are said to have demanded the bribe amount. Even to prove this demand there is only evidence of PW.2. Though, there was a shadow witness sent along with complainant, the shadow witness PW3 has not entered the chamber of accused No.1 and he was sitting outside as admitted by PWs 1, 2, 3 and also PW.6. Therefore, even the demand of bribe amount by accused at the time of trap is not established.
29. Coming to the acceptance of tainted notes by accused, it is stated that complainant had produced Rs.5,000/- before the Lokayuktha Police during pre-trap proceedings and phenolphthalein powder was applied and the amount was kept in complainant's shirt pocket and on the date of trap, the complainant went inside the chamber of accused No.1 and on the say of accused No.2, he offered to give the amount and on asked by them to keep on table, he kept it on table and accused No.1 pushed the notes below the magazine which was on the table from his left hand. Admittedly, the panch witness who was sent along with complainant has not entered the chamber and he has not seen the complainant giving the amount and accused No.1 accepting the same and then pushing it towards magazine as stated in trap mahazar Ex.P3. However, PW.2 in his cross-examination has clearly admitted 29 Spl.C.No.162/2013 that when he entered the chamber of accused No.1, accused No.1 was talking to some other three persons and accused No.1 asked him to wait. PW.2 has admitted that when accused No.1 was talking with three persons in the chamber, he kept the tainted notes below a newspaper which was on the table of accused No.1 and accused No.2 was not in the chamber at that time and thereafter he gave signal. Therefore, PW.2, in his cross examination, has clearly stated that he himself has kept the amount on the table of accused No.1 and also he told the Inspector that amount is kept below the newspaper. Therefore, evidence of PW.2 does not prove that accused No.1 has received the amount and pushed the tainted notes below magazine as stated in the trap mahazar. Admittedly, PWs 1 and 3 who are the independent panch witnesses were not present in chamber of accused No.1 when tainted notes are said to have been given and even PW6 Investigating Officer was not there. Therefore, even acceptance of bribe amount by accused No.1 is not proved in this case. As per the trap mahazar accused No.2 was also present in the chamber. But as per PW.2 evidence, accused No.2 was not in the chamber. Admittedly, accused No.3 was secured only after PW6 entering the chamber of accused No.1. Therefore, acceptance of tainted notes by any of the accused is not proved. There is no 30 Spl.C.No.162/2013 evidence before the court to show that accused No.1 has received the tainted notes from the complainant.
30. On considering all these aspects, acceptance of tainted amount by the accused is also not proved. Though the left hand wash of accused in sodium carbonate solution has turned to pink colour and the amount was found on the table below the newspaper and magazine as per the evidence, only on the basis of phenolphthalein test and hand wash, the acceptance of tainted notes by accused does not get proved. PW.2 in his cross-examination has admitted that Lokayukta police asked accused No.1 to hand over the tainted amount to PW.1 and after accused No.1 giving tainted notes, his hand wash is made. Therefore much cannot be said about the hand wash turning to pink colour. None of the witnesses have seen the accused accepting the tainted notes from the complainant. Therefore, acceptance of bribe amount by accused and even recovery of the tainted notes from the accused are not proved by the prosecution. Apart from this, proof of demand of bribe is sine-qua-non for the offence under Section 7 of the Prevention of Corruption Act. Therefore, without proof of demand, charge under section 7 of P.C. Act would fail. In the present case, even acceptance and recovery of bribe amount are not proved.
31 Spl.C.No.162/201331. Though there is a presumption under Section 20 of the P.C. Act with regard to motive or reward as appearing in Section 7 of the Act, such presumption can be drawn only when demand and acceptance of the illegal gratification or remuneration is proved. Presumption under S.20 cannot be raised when demand by accused is not proved. In the present case, as demand & acceptance are not proved, even the benefit of presumption is not available.
32. Therefore, the prosecution has utterly failed to prove that accused Nos. 1 to 3 have demanded and accepted the tainted notes as illegal gratification from the complainant and have committed the offence under Section 7 of the Prevention of Corruption Act. When the charge under Section 7 of the Prevention of Corruption Act is not proved, the accused cannot be held guilty even for the offence under Section 13(1)(d) of the Prevention of Corruption Act. Similarly, any criminal misconduct of accused by receiving any pecuniary advantage without any public interest is also not made out. Therefore, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and accused Nos.1 to 3 are entitled for acquittal. Accordingly, points No.1 and 2 are answered in the Negative.
32 Spl.C.No.162/201333. POINT No.3:- For the discussion and findings on Point Nos.1 and 2, accused Nos. 1 to 3 are to be acquitted. Hence, following order is passed:
ORDER Accused Nos. 1 to 3 are found not guilty. Acting u/s 235(1) of Cr.P.C. accused Nos. 1 to 3 are acquitted from the charges levelled against them for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused persons and their sureties are stand cancelled.
MO.1 Cash is ordered to be confiscated to the State after the expiry of the appeal period.
MOs.2 to 11 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 28th day of March 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.33 Spl.C.No.162/2013
ANNEXURE List of witnesses examined for the prosecution:
PW.1 B.G.Shivaramaiah PW.2 K.M.Shivakumar PW.3 V.Narayana PW.4 Girish Kumar PW.5 Sankarappa K. Alagavadi PW.6 B.Y. Renuka Prasad
List of documents exhibited for the prosecution:
Ex.P.1 Notes sheet
P.1 (a) Signature of PW.1
P.1 (b) Endorsement
P.1 (c) Signature of PW.1
P.1 (d) Signature of PW.2
P.1 (e) to P.1 (g) Signature of PW.6
Ex.P.2 Pre-trap mahazar
P.2(a) to (j) Signature of PW.1
P.2 (k) to (o) Signature of PW.2
P.2 (p) Signature of PW.3
P.2(q) & P.2(r) Signature of PW.6
Ex.P.3 Trap mahazar
P.3 (a) to P.3(h) Signature of PW.1
P.3 (j) to P.3(p) Signature of PW.2
P.3 (q) Signature of PW.3
P.3 (r) Signature of PW.6
P.3 (t) Signature of PW.6
Ex.P.4 Transcription of conversation
dtd.15.06.2012
P.4 (a) to P.4 (h) Signature of PW.1
P.4 (j) to P.4 (k) Signature of PW.1
Ex P.5 Transcription of conversation
dtd.19.06.2012
P.5 (a) to (c) Signature of PW.1
34 Spl.C.No.162/2013
Ex P.6 Copies of documents of pay
arrears of complainant
Ex P.7 Copies of attendance register
Ex.P.8 Explanation of Accused No.1
Ex.P.9 Explanation of Accused No.2
Ex.P.10 Explanation of Accused No.3
Ex.P.11 Sample seal of metal seal
P.11 (a) Signature of PW.1
Ex.P.12 Complaint
P.12 (a) Signature of PW.2
P.12 (b) Signature of PW.6
Ex.P.13 to 15 Prosecution Sanction orders
Ex.P.16 Portion of statement
Ex.P.17 Report
P.17 (a) Signature of PW5
Ex.P.18 FIR
P.18 (a) Signature of PW.6
Ex.P.19 Rough sketch
P.19 (a) Signature of PW6
Ex.P.20 Sudha Magazine
Ex.P.21 Indian Express news paper
Ex.P.22 Acknowledgment of CW.2
P.22 (a) Signature of PW.6
Ex.P.23 Service particulars of A.2
Ex.P.24 Service particulars of A.1
Ex.P.25 Chemical examination report
P.25 (a) Signature of PW6
Ex.P.26 Sketch of PWD
Ex.P.27 Call details of A.1 to 3
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
- Nil -35 Spl.C.No.162/2013
Material Objects marked by Prosecution :
MO-1 Cash of Rs.5,000/-
MO-2 to 6 Bottles containing Sodium Carbonate
solutions.
MO-7 Cotton piece
MO-7(a) Cover
MO-8 CD article 1
MO-8 (a) Cover
MO-9 CD article 4
MO-9 (a) Cover
MO-10 CD article 10
MO-10 (a) Cover
MO-11 CD article 11
MO-11 (a) Cover
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
36 Spl.C.No.162/2013
Orders pronounced in the open Court
vide separate Judgment :
ORDER
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.