Bangalore District Court
The State Of Karnataka vs A.Amravathi on 15 November, 2017
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU.
(CCH-77)
Present: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
Dated: This the 15th day of November 2017
Spl. C.C.No.120/2010
COMPLAINANT The State of Karnataka,
By Police Inspector,
Karnataka Lokayuktha Police
Wing, City Division,
Bengaluru.
(Rep. by Spl.Public
Prosecutor)
-Vs-
ACCUSED 1. A.Amravathi,
w/o Nagarajappa,
45 years,
Second Division
Assistant, Office of the
Regional Transport
Office, Electronic City,
Bangalore,
r/at No.41,
Sadashivanagara,
Aswathappa layout,
Attibele, Anekal Taluk,
Bangalore Rural District.
2 Spl.C.C.120/2010
2. Mr.Prakash Rajaram
Pisse, s/o late Rajaram
Maruthi Pisse, 53 years,
Superintendent, Office
of the Regional
Transport Office,
Electronic city,
Bangalore, r/at No.222,
5th cross, 1st stage,
K.H.B.colony,
Basaveshwaranagara,
Bangalore-79.
A-1 by: Sri N.K.Damodar,
Advocate
A-2 by: Sri S.P.Hegde,
Advocate
1. Nature of Offence Offence punishable under
Sections 7, 8, 13(1) (d) r/w 13
(2) of the Prevention of
Corruption Act, 1988.
2. Date of
Commission 20.07.2009
of offence
3. Date of First 20.07.2009
Information Report
4. Date of arrest 20.07.2009
5.Date of
commencement of 02.01.2013
recording of
evidence
3 Spl.C.C.120/2010
6. Date of 21.07.2017
closing of evidence
7. Date of
pronouncement of 15.11.2017
Judgment
The accused No.1 & 2 are
8. Result of the case acquitted under Sec.235(1) of
Cr.P.C. of the offence
punishable under section 7,
13(1) (d) r/w 13(2) of Prevention
of Corruption Act, 1988.
JUDGMENT
The accused No.1 & 2 are charge sheeted for the alleged offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988.
2. The prosecution case is that:
The accused No.1 & 2 were then working as Second Division Assistant & Superintendent respectively, in the Office of the Regional Transport Office, Electronic City, Bangalore. The complainant (CW1)-S.Ravikumar, in order to get transfer of Toyota Qualis No.KA-05-AB-4554 to his name, had applied for issue of 5 certified copies of Tax Paid Credit Certificates in respect of the said vehicle for the period from 01.09.2009 to 31.05.2006 & 31.08.2007 to 29.02.2008. In that connection, the complainant- S.Ravikumar had approached accused No.1 on 4 Spl.C.C.120/2010 16.07.2009, whereupon she demanded bribe of Rs.50/-
for her signature on each certificate and Rs.50/- for signature of accused No.2, totally Rs.500/-. On 17.07.2009, the complainant-Ravikumar once again approached accused No.1 & 2 who in turn demanded bribe of Rs.250/- each, totally Rs.500/-.
3. The complainant-Ravikumar has recorded the conversation with the accused persons in his mobile phone. Since the complainant-Ravikumar was not willing to pay the bribe amount, on 20.07.2009, he appeared before CW18- Sri Mohammed Irshad, Police Inspector, Karnataka Lokayuktha and presented the written information as per Ex.P-1 who in turn arranged for the trap. Along with the complaint, the complainant has produced the CD containing the recorded conversation.
4. CW2-H.Ningaraju & CW3-K.Ramachandra, the employees of the office of Director of Animal Husbandry were secured to act as witnesses for the trap. The bait money of Rs.500/-(MO-12) was smeared with phenolphthalein powder. Before that, the serial numbers of the currency notes were recorded in a white sheet as per Ex.P2 and obtained the signatures of the witnesses.
5 Spl.C.C.120/2010 CW3-Ramachandra after verifying and counting the tainted currency notes placed it in the left side shirt pocket of the complainant. Both hand fingers of CW-3 were made to dip in the sodium carbonate solution. The said solution becomes pink colour. The CD containing the mobile conversation produced by the complainant along with the complaint was played in the presence of the witnesses. The conversation recorded in the said CD was transcript into writing as per Ex.P26 and obtained the signatures of the witnesses. Before that, CW-18 has demonstrated the chemical reaction of phenolphthalein powder when it comes into contact with sodium carbonate solution. The complainant was instructed to approach accused No.1 & 2 in their office, speak with them about the work and to give the amount only on demand. He was further instructed to give signal by wiping his hairs if the accused No.1 & 2 received the money. The pen camera & voice recorder were given to the complainant with an instruction to switch it on while approaching accused No.1 & 2 to give money and to record the conversation/scene. Entrustment Mahazar (Ex.P3) was prepared and obtained the signatures of the witnesses.
6 Spl.C.C.120/2010
5. On 20.7.2009, at about 12.30 p.m, the complainant, CWs-2 & 3, CW-18 & his staff left for RTO office, Electronic City, Bangalore, in a Government Vehicle. They reached the RTO office, Electronic City, at about 1.30 p.m. The vehicle was parked in front of New Bamboo Bazaar shop situated opposite to MICO main road. The complainant & CW-2 (shadow witness) went inside the RTO office. The remaining Trap Team Members & CW-3 were waiting outside the RTO office for the signal from the complainant. At about 1.50 p.m, the complainant came out of RTO office and gave pre-instructed signal, whereupon the raid party rushed to the spot and apprehended the accused No.1 & 2. On an enquiry, the accused No.1 disclosed her name as Amravathi-S.D.A., office of the RTO and accused No.2 introduced himself as Prakash R.Pisse-Superintendent, Office of the RTO. Thereafter both hand fingers of the accused No.1 were made to dip in sodium carbonate solution. The right hand finger wash of accused No.1 turned to dirt colour, whereas the left hand wash turned to pink colour. The tainted currency notes of Rs.500/- (MO12) were recovered from the table drawer of accused No.1 and got tallied with the currency notes sheet. The DD Tax registers-volume- 1, 2, 3 & 5, Registers containing Five Credit Certificates 7 Spl.C.C.120/2010 were secured from the custody of accused No.1. The xerox copies of those documents were got attested through CW6- A.R.Madan Gopal-ARTO and seized in the presence of the witnesses. CW-18 also seized the attested xerox copies & Five Credit Certificates of the previous years in respect of the Toyota Qualis No.KA-05-AB-4554. Attendance Register was also seized. CW-18 has seized the extra amount of Rs.5600/- (MO-14) found in the possession of accused No.1, for which he did not satisfactorily account. The CD produced along with the complaint was played in the presence of the witnesses. CW6-Madan Gopal-ARTO & CW7-Abdul Samad-ARTO (Non-Transport) had identified the voice & persons of accused No.1 & 2. Accused No.1 & 2 gave their explanation in writing as per Ex.P-24 & P-25. CW-18 has recorded the statement of the complainant & shadow witness and incorporated the substance of it in the Trap Mahazar. The Trap Mahazar was prepared as per Ex.P-15 and obtained the signatures of the witnesses. CW-18 has received the Chemical Examination Report(Ex.P-48), Spot Sketch from the PWD Engineer (Ex.P-49), service particulars of accused No.1 & 2, etc. After completion of investigation, CW-18 sent the Final Report to the Competent Authority seeking sanction to prosecute the accused No.1 & 2. After receiving the 8 Spl.C.C.120/2010 Sanction Order(Ex.P-29), CW-18 has submitted charge sheet before the Court for the offence punishable under Secs.7, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988.
6. My Predecessor-in-Office took cognizance of the offence and issued process against the accused No.1 & 2. In pursuance of the summons, accused No.1 & 2 appeared before the Court. Accused No.1 & 2 were enlarged on bail.
7. After hearing, the charge was framed against the accused No.1 & 2 for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988. The charge was read over and explained to the accused No.1 & 2. The accused No.1 & 2 pleaded not guilty and claimed to be tried.
8. During the trial, the prosecution has examined in all 6 witnesses as PWs-1 to 6 and got marked 49 documents as Ex-P1 to Ex.P-49 and 15 Material Objects as MO-1 to 15. The accused No.1 & 2 were examined under section 313 of Cr.P.C. for the purpose of enabling them to explain the circumstances existing against them. The accused No.1 & 2 denied all the incriminating evidence 9 Spl.C.C.120/2010 available against them. The accused No.1 has been examined as DW-1. Ex.D.1 & D2 are marked. Accused No.2 has not chosen to lead any defense evidence. I have heard the arguments and perused the records.
9. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 & 2 being public servants working as Second Division Assistant & Superintendent respectively, in the office of the Regional Transport office, Electronic city, Bangalore, on 20.07.20009 at about 1.30 p.m, demanded and accepted illegal gratification of Rs.500/-
from the complainant as a motive or reward for showing an official favour in the matter of issue of certified copies of Tax Paid Credit Certificates in respect of Toyota Qualis vehicle No.KA-05-AB-4554 and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 & 2 being public servants working as Second Division Assistant & Superintendent respectively, in the office of the Regional Transport office, Electronic city, Bangalore, on 20.07.20009 at about 1.30 p.m in their office by abusing their position as public servants and by corrupt or illegal means and without 10 Spl.C.C.120/2010 public interest, obtained Rs.500/-from the complainant as pecuniary advantage and thereby committed criminal mis-conduct punishable under section 8, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988?
3. What order?
10. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER
for the following:
REASONS
11. Point No.1 & 2: For the sake of convenience and to avoid repetition of facts, I have taken Points No.1 & 2 together for consideration.
12. The prosecution has examined CW1-Ravi Kumar as PW-1. PW-1 is the complainant. PW-1 has deposed that he had purchased Toyota Qualis car bearing No.KA-05-AB-4554. It was bearing yellow colour. He was in need of certificate from jurisdictional RTO. In that connection, he went to the RTO office at Electronic City on 16.7.2009 and met accused No.1 who was in the cash 11 Spl.C.C.120/2010 counter. 5 challans for Rs.5/- each were given to him. One Arun Kumar was entrusted with the work. Accused No.1 told him that he had to pay Rs.50/- for each certificate for procuring signature and totally it was Rs.500/-. On the next day i.e. on 17.7.2009 again he went to the RTO office, Electronic City and met the accused No.1, whereupon she reasserted the demand of Rs.50/- for each certificate. He also approached accused No.2 who in turn told him that he was bound to pay Rs.500/- and at the end, he will get his share. He recorded the conversation in his mobile phone and transferred the data from the mobile to CD. On 20.07.2007 he went to Lokayuktha office and gave complaint as per Ex.P-1. The Lokayuktha Police Inspector-Mohammed Irshad registered the complaint, secured two official witnesses and prepared Entrustment Mahazar as per Ex.P-3. PW-1 has further deposed that, after the procedure of Pre-Trap Mahazar, they left for RTO office, Electronic City. CW-2-H.Ningaraju was instructed to follow him as a shadow witness and to observe the activities. The Pen camera & Voice Recorder were given to him to record the conversation/scene. At about 1.30 p.m, he & shadow witness went inside the office of the accused. He asked the accused No.1 whether the certificates were 12 Spl.C.C.120/2010 ready, whereupon, she asked him whether he brought the money. As per the instructions of accused No.1, he met accused No.2 and spoke to him. Accused No.2 asked him to go to accused No.1. Thereafter, he gave money to accused No.1, she received and counted it by using both hands and placed it in the drawer. She took out Rs.250/- from the drawer and called Arun Kumar, kept Rs.250/- in that book and handed over the book to Arun Kumar and asked to get the signature of the Superintendent. Thereafter, he gave pre-instructed signal. Immediately the Trap team entered the office and apprehended accused No.1 & 2. The Lokayuktha Police Inspector had ascertained the name & designation of accused No.1. Thereafter both the hand fingers of accused No.1 were washed. There was no substantial change in the colour of right hand wash solution. However, the left hand wash solution turned to pink colour. When the Lokayuktha Police Inspector asked the accused No.1 to produce the money, she produced the amount from the cash box. The said currency notes were tallied with the currency notes sheet-Ex.P2. Thereafter, tainted currency notes were seized. The relevant case papers were seized from the Treasury section. The Button Camera & Voice Recorder was played in the presence of the witnesses. The voice of 13 Spl.C.C.120/2010 accused No.1 & 2 were identified by ARTO. The CD containing the conversation which was produced along with the complaint was also played and the ARTO has identified the voice of the accused. PW-1 has further deposed that, the excess amount of Rs.5600/- found in the possession of accused No.2 was seized as he did not satisfactorily account for it. PW-1 further deposed that, he erroneously mentioned the name of accused No.1 as 'Varalakshmi' and subsequently he gave an application stating that her name is 'Amaravathi'. The trap proceedings were reduced into writing and Trap Mahazar as per Ex.P-15 was prepared.
13. During the cross-examination of PW-1, it was elicited that, after he entered the RTO office, he was standing behind accused No.1. At that time, accused No.1 was receiving cash from the public and passing receipts. On 20.07.2009, accused No.1 told him that Credit Certificate cannot be given for the second time. Further it was elicited that accused No.2 has not directly demanded bribe from him.
14. The prosecution has examined CW2- H.Ningaraju as PW-2. According to the prosecution, PW2 is a shadow witness. PW-2 deposed that on 20.07.2009, 14 Spl.C.C.120/2010 he was summoned to Lokayuktha Police station. The complainant was present. The contents of the complaint were made known to him and he was asked to co-operate as a shadow witness. The complainant produced Rs.500/-(denomination of Rs.100/-). The said currency notes were smeared with some powder. CW3- Ramachandraiah has counted the said currency notes and placed it in the shirt pocket of the complainant. Before that, the serial numbers of the currency notes were recorded. Both the hand fingers of Ramachandraiah were washed in sodium carbonate solution. The said solution turned to pink colour. Entrustment Mahazar was prepared as per Ex.P-3. The complainant was asked to pay the money to the accused only on demand and to give signal by wiping his head. He was instructed to follow the complainant and to observe what transpires between the complainant and the accused. Thereafter they left for RTO office, Electronic City. The complainant asked accused No.1 about the certificate, whereupon she asked him to speak to the Superintendent. The Superintendent told him that if Madam minds, it will be done. When the complainant asked accused No.1 about the certificate, she told him that the certificate will not be issued for the second time. At that time, the complainant told that he 15 Spl.C.C.120/2010 brought the money. Then accused No.1 stated that she would do it and received the money. She put the money in the cash drawer and took out a book and kept the challans and Rs.250/- in that book and gave it to a boy to hand it over to accused No.2. By that time, the complainant had gone out of the office and gave pre- instructed signal. Immediately the Trap team rushed to the office. Both the hand fingers of accused No.1 were washed in a solution. There was no change of colour of right hand wash, but the left hand wash solution turned to pink colour. Thereafter, the file pertaining to the Credit Certificate was seized. Accused No.1 has produced Rs.500/- from her table drawer and the said amount was seized. Thereafter the accused No1 & 2 gave their explanation as per Ex.P-24 & P-25. On search of accused No.2, he was found to be in possession of excess amount of Rs.5600/- and the same was seized. The Voice Recorder was played and the ARTO has identified the voice of the accused. The contents of the Voice Recorder were converted to CD.
15. During the cross-examination of PW-2, it was elicited that, he noticed about 3-4 counters in the RTO office. Accused No.1 was found seated perhaps in the 4th 16 Spl.C.C.120/2010 counter. Many public were there in the RTO office. The accused No.1 was busy attending the work of public. He noticed that accused No.1 was busy in collecting cash from the public. PW-2 has pleaded ignorance that as a matter of right, public has no right of entry inside the counter. It is further elicited that accused No.1 told that the records pertaining to the complainant are in the Treasury section. The Lokayuktha Police Inspector seized the records from the Treasury section. PW-2 has denied the suggestion that the complainant placed the tainted currency notes in the table drawer of accused No.1 without her knowledge.
16. During the course of cross-examination made on behalf of accused No.2, it was elicited that the complainant was just behind accused No.1 and he was at the distance of 2-3 feet from the complainant. The Credit Certificate was seized from one Madan Gopal. PW-2 has categorically admitted that he is aware that if he deviates from the contents of the Trap Mahazar, he will have to face Departmental enquiry.
17. The prosecution has examined CW3- K.Ramachandra as PW-3. According to the prosecution, PW-3 is a co-panch witness. PW-3 has deposed that, on 17 Spl.C.C.120/2010 20.07.2009, he was summoned to Karnataka Lokayuktha office and was asked to assist as witness in the trap. At that time, the complainant was present. The complainant placed Rs.500/- before the Lokayuktha Inspector. The said currency notes were smeared with phenolphthalein powder. He counted the said currency notes and placed in the left side shirt pocket of the complainant. Thereafter, both his hand fingers were washed in a solution, which turned to pink colour. Entrustment Mahazar-Ex.P3 was prepared and obtained his signature. Thereafter they left for RTO office, Electronic City. The complainant & CW2- Ningaraju went inside the office at about 1.45 p.m. CW2- Ningaraju gave signal by scratching his head with left hand. Lokayuktha Inspector & his staff immediately entered the RTO office. Both the hand fingers of accused No.1 were washed in a solution which turned to pink colour. Thereafter the tainted currency notes were seized. The Lokayuktha Inspector has also seized the extra amount of Rs.5000/-found in possession of accused No.2 for which he did not satisfactorily account. Trap Mahazar was drawn and obtained his signature. During the trap proceedings, photographs were taken.
18 Spl.C.C.120/2010
18. During the course of cross-examination of PW-3, it was elicited that, immediately after receipt of pre- instructed signal, he along with CW-18 and his staff entered the RTO office. He took about 1-2 minutes to go nearby accused No.1. He stood outside the counter. He has not observed the proceedings taken place inside the counter. As per the instructions of Lokayuktha police staff, he signed the mahazars. He does not know the contents of the Trap Mahazar. He has not given instructions to prepare the Trap Mahazar. He signed the Trap Mahazar in the Lokayuktha office.
19. The prosecution has examined CW13-Bhaskar Rao as PW-4. PW-4 is the Sanctioning Authority. PW-4 has deposed that he received a letter dated 9.10.2009 from ADGP-Lokayuktha, Bangalore seeking sanction to prosecute accused No.1 & 2. Along with the letter, he was made available copy of the complaint, FIR, Pre-Trap Mahazar, spot sketch, explanation of accused No.1 & 2 and other related documents. He being the Competent Authority to appoint & dismiss the accused No.1 & 2 from service, after verifying the case records and satisfying himself about the prima facie case, has accorded sanction to prosecute the accused No.1 & 2. The Sanction Order 19 Spl.C.C.120/2010 dated 30.11.2009 to prosecute the accused No.1 & 2 is produced and marked as Ex.P-29.
20. PW-4 was cross examined quite at length. He stood to the test of cross-examination. Nothing contrary is elicited during the course of cross-examination so as to disbelieve the oral testimony of PW-4.
21. The prosecution has examined CW4- Subramani R. as PW-5. According to the prosecution, PW- 5 being a friend of the complainant had accompanied him to the RTO office, Electronic City on 17.7.2009 and witnessed the alleged demand made by accused No.1 & 2. PW-5 has deposed about the earlier demand of bribe made by accused No.1 & 2 from the complainant and recording of conversation by the complainant in his mobile phone.
22. During the cross-examination of PW-5, it was elicited that he did not know how many counters were in the office of accused No.1 & 2. Public will not be allowed inside the counter. He has not seen any receipt with the complainant. He has not seen the documents pertaining to the Toyota Qualis vehicle.
20 Spl.C.C.120/2010
23. The prosecution has examined CW18- Mohammed Irshad as PW-6. PW-6 is the Investigating Officer. PW-6 has deposed about the registering of FIR, laying of trap, drawing of Entrustment Mahazar, resultant hand wash of accused No.1 turning to pink colour, recovery of currency notes of Rs.500/- from the table drawer of accused No.1, playing of Voice Recorder and Button Camera containing the conversation/scene, converted into CD and transcript into writing, identification of voice of accused No.1 & 2 through CW7- Madan Gopal-ARTO, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, collecting service particulars of accused No.1 & 2, receipt of Chemical Examination Report, obtaining spot sketch & receiving Sanction Order from the Competent Authority to prosecute the accused No.1 & 2 and filing of charge sheet, etc.
24. PW-6 was cross-examined quite at length. During the cross-examination of PW-6, it was elicited that, the application dated 16.7.2009-Ex.P40 does not bear the serial number and also the seal of the RTO office. In Ex.P-40 there is no endorsement in respect of the 21 Spl.C.C.120/2010 receipt number for having paid Rs.25/- for the purpose of issue of Credit Certificate. It is further elicited that, there was no signature of accused No.1 in any of the documents seized during the trap proceedings except the Attendance Register. It is further elicited that the Credit Certificates- Ex.P.41 are not signed by accused No.1. The Credit Certificates bear the seal & signature of the Treasury Officer of RTO. PW-6 pleaded ignorance that the Treasury Officer of RTO is the Competent Authority for issue of Credit Certificate. It is further elicited that MO-1 to 3-CD were not subjected to Scientific Investigation.
25. During the cross-examination made on behalf of accused No.2, it was elicited from PW-6 that, during his investigation, he came to know that ARTO is the Competent Authority and empowered to issue Credit Certificate and that accused No.2 has no authority or empowered to issue Credit Certificate.
26. The accused No.1 has been examined as DW-1. DW-1 deposed that in the year 2009, she was working as SDA in the office of the RTO, Electronic City. She was allotted with cashier work. Her duty was to take fees from the public and issue receipt for the amount she received. There were three credit cash counters in her office. She 22 Spl.C.C.120/2010 was sitting in one of the counters. The ARTO was the Competent Authority and empowered to issue Tax Paid Credit Certificates in respect of the vehicles. She never demanded Rs.500/- from the complainant for issue of certified copy of the Tax Paid Credit Certificates in respect of Tata Qualis No.KA-05-AB-4554. Accused No.2 has not instructed her to receive the amount of Rs.500/- from the complainant. DW-1 has further deposed that on 20.07.2009 she was busy with her work. At that time, somebody came behind her and asked her to give certified copy of the Tax Paid Credit Certificate. She told him that the Tax Paid Credit Certificate has already been taken. By that time, the Lokayuktha Police entered her cabin and asked her to open the drawer and to lift the amount found in the drawer. First she refused to lift the amount. Later at the instance of Lokayuktha Police, she lifted the amount of Rs.500/- and produced it before the Lokayuktha Inspector. Thereafter, her both hand fingers were made to dip in sodium carbonate solution. Lokayuktha Police by exercising force and pressure obtained her explanation in writing as per Ex.P-24. DW-1 has further deposed that she is innocent. She has not 23 Spl.C.C.120/2010 committed any offence. Somebody who is having grudge against her might have filed complaint before the Lokayuktha Police.
27. DW-1 was cross-examined quite at length. She stood to the test of cross-examination. Nothing contrary is elicited during the course of cross-examination so as to disbelieve her oral testimony.
28. It is well settled that demand of illegal gratification by the accused and acceptance of the same is sine-qua-non for constituting the offence under Sec.7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that there was demand and acceptance to bring home the guilt of the accused. The prosecution is also required to prove that the work of the complainant was pending with the accused as on the date of the complaint and the accused was the Competent Authority to do an official favour to the complainant.
29. In the present case, the official favour sought for is issue of five certified copies of Tax Paid Credit Certificates in respect of Toyota Qualis No.KA-05-AB-4554 for the period 01.09.2009 to 31.05.2006 & 31.08.2007 to 29.02.2008. The evidence of PW6-Investigating Officer 24 Spl.C.C.120/2010 reveals that, the ARTO was the Competent Authority for issue of certified copies of the Tax Paid Credit Certificates. Accused No.1 & 2 being SDA & Superintendent had no authority and empowered to issue certified copy of Credit Certificates. It is relevant to note that the complainant has submitted the application (Ex.P40) on 16.07.2009 for issue of certified copy of Credit Certificates. The said application does not bear the serial number and seal of the RTO for having received it in the office of the RTO. In the said application, there is no endorsement in respect of the receipt number for having paid Rs.25/-for the purpose of issue of Credit Certificates. Further no receipts for having paid Rs.5/- for each certificate are enclosed to the said application. The complainant has not complied with legal requirement. As on the date of the application, the vehicle was not transferred in the name of the complainant. The complainant was not the competent person to obtain the certified copy of the Tax Paid Credit Certificates. He was also not authorized by the owner of the vehicle to obtain such certificates. Further the evidence on record reveals that the certified copies of the Tax Paid Credit Certificates have already been issued. On 20.07.2009 i.e., on the date of trap, accused No.1 told the complainant that the Credit Certificates cannot be given for 25 Spl.C.C.120/2010 the second time. The concerned records pertaining to the complainant was seized from the Treasury Officer. These aspects go to show that the accused No.1 & 2 had no authority or empowered to issue certified copies of the Tax Paid Credit Certificates. Such being the fact, the question of demand of illegal gratification of Rs.50/- for each certificate by the accused No.1 for subscribing her signature & Rs.250/- on behalf of accused No.2 for subscribing his signature and acceptance of the same, is legally & factually does not arise.
30. According to PW1, accused No.1 received the tainted currency notes from him and counted it by using both hands. Even the statement of the complainant and shadow witness incorporated in the Trap Mahazar reveals that accused No.1 received the tainted currency notes from her right hand and counted it by using both her hands. But the FSL Report-Ex.P48 reveals that the presence of phenolphthalein is detected only in the left hand finger wash of accused No.1. If the evidence of PW-1 that the accused No.1 received the tainted currency notes from her right hand and counted it by using both her hands is true, then the presence of phenolphthalein should have been detected in both the hand finger wash.
26 Spl.C.C.120/2010 Under the circumstances, it creates a doubt about the prosecution case.
31. According to PWs-1 & 2, after receiving the money, accused No.1 took out Rs.250/- from the drawer, kept it in the book along with the challans, called Arun Kumar and handed over the book to him telling him to get the signature of the Superintendent(accused No.2). But the bait money of Rs.500/- was seized from the table drawer of accused No.1. There is discrepancy in the evidence with regard to recovery of amount. It is relevant to note that the Register-book in which accused No.1 placed Rs.250/- & challans, has not been seized. Further, the prosecution has not produced CW5-Arun Kumar before the Court and examined him on oath. If the prosecution examined the said witness, the truth would have come out. All these circumstances creates a doubt regarding recovery of the amount.
32. According to PW3- co-panch witness, he signed the Trap Mahazar without going through its contents. He has not given instructions to prepare the Trap Mahazar. Further he has not observed the proceedings taken place inside the counter of accused No.1. Therefore, the 27 Spl.C.C.120/2010 evidence of PW-3 will not be helpful for the prosecution to prove the recovery of bait money.
33. It is well settled that electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine, is supported by the decision of Supreme Court in the case of Anwar P.V. -v- P.K.Basheer and others; (2014) 10 Supreme Court Cases 473.
34. In the present case, MOs-1 to 3 are the CDs said to have contained the conversation which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused No.1 & 2 and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MOs-1 to 3 are not admissible in evidence.
28 Spl.C.C.120/2010
35. Further the evidence of PWs-1 & 2 is inconsistent with regard to demand and acceptance of bribe by the accused No.1. The element of demand has not been proved. It is well settled that mere recovery of tainted money and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused, unless there is corroboration of testimony of complainant regarding demand and acceptance of bribe by the accused.
36. In the present case, the amount alleged to have demanded & accepted as illegal gratification is trivial and too small. The Hon'ble High Court of Karnataka in the case of Ameer Jan -Vs- State -2001(3) Crimes 171 has held that:
" Where incident is a petty one and where it is a single isolated instance, prosecution would be unjustified as Government itself could impose sufficiently serious penalties through disciplinary proceedings."
37. The Hon'ble High Court of Karnataka in the case of State by Police Inspector, Karnataka Lokayukta, Bangalore -v- M.Nanjunda; 2001 (3) KCCR 1905, held that:
29 Spl.C.C.120/2010 "There are a class of misconducts which can be dealt adequately through disciplinary or departmental proceedings. Whether a particular case justifies prosecution or can be dealt with disciplinary proceedings, is an aspect the sanctioning authority is required to judicially consider before granting sanction."
38. In the present case, as I have already stated the bait money is trivial and too small. The accused No.1 was Second Division Assistant. The Sanctioning Authority could have refused to accord sanction, as it is one which can be adequately dealt with through Disciplinary or Departmental proceedings. But the Sanctioning Authority has not judicially considered this aspect of the matter before according sanction. Further in the complaint the name of the person who demanded bribe is shown as 'Varalakshmi'. The FIR was also registered against 'Varalakshmi-Cashier-RTO office'. There is no evidence on record to show that accused No.2 has demanded money from the complainant. A perusal of the Sanction Order is sufficient to indicate that the Sanctioning Authority has not independently perused investigation papers before coming to the conclusion that there is sufficient material to accord sanction. But the Sanctioning Authority-PW4 30 Spl.C.C.120/2010 without perusing the investigation papers independently has mechanically and arbitrarily granted Sanction Order.
39. In the present case, absolutely there is no evidence to prove demand and acceptance of illegal gratification by the accused No.1 & 2 for doing an official favour to the complainant. The accused No.1 & 2 were not the Competent Authority to do an official favour. The amount involved in the trap is trivial and too small. The alleged misconduct could have been adequately dealt with through disciplinary or departmental proceedings instead of prosecuting the accused. Without considering the legal position and the evidence collected during the investigation, the Sanctioning Authority, without application of mind has mechanically accorded sanction for prosecution. The prosecution has miserably failed to prove the alleged charges leveled against accused No.1 & 2. Hence, I answer Point Nos.1 & 2 in the Negative.
40. Point No.3: In the result, I proceed to pass the following:
ORDER The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) 31 Spl.C.C.120/2010 r/w 13 (2) of the Prevention of Corruption Act, 1988 and set at liberty.
Bail bonds executed by the accused No.1 & 2 stands cancelled.
MO-12 & MO-14- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
Mos-1 to 11, 13 & 15 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment writer directly on the computer, after transcription, corrected by me and then pronounced by me in the open court on this the 15th day of November 2017) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Ravi Kumar S.
PW2 H.Ningaraju
PW3 K.Ramachandra
PW4 Bhaskar Rao
PW5 Subramani R
PW6 Mohammed Irshad
32 Spl.C.C.120/2010
List of documents marked on behalf of prosecution:
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-1b) Signature of PW6
Ex.P-2 Currency notes sheet
Ex.P-2(a) & (b) Signature of PW3
Ex.P-2(c) Signature of PW6
Ex.P-3 Pre-Trap Mahazar
Ex.P-3(a) Signature of PW1
Ex.P-3(b) Signature of PW2
Ex.P-3(c) to(g) Signature of PW3
Ex.P-4 to 14 photos
Ex.P-15 Trap Mahazar
Ex.P-15(a) Signature of PW2
Ex.P-15(b) Signature of PW1
Ex.P-15(c) to Signature of PW3
(o)
Ex.P-15(p) Signature of PW6
Ex.P-16 to 23 photos
Ex.P-24 Explanation of A-1
Ex.P-24(a) Signature of PW3
Ex.P-25 Explanation of A-2
Ex.P-25(a) Signature of PW3
Ex.P-26 Cassette transcription sheet
Ex.P-26(a) Signature of PW2
Ex.P-26(b) Signature of PW6
Ex.P-27 Cassette transcription sheet
Ex.P-27(a) Signature of PW3
Ex.P-28 Acknowledgment
Ex.P-28(a) Signature of PW3
Ex.P-29 Sanction Order
Ex.P-29(a) Signature of PW4
Ex.P-30 FIR
Ex.P-31 Letter written to Director of Animal
Husbandry
Ex.P-32 Confirmation letter
Ex.P-33 Confirmation letter
33 Spl.C.C.120/2010
Ex.P-34 Extract of DD tax register-vol.1
Ex.P-35 Extract of DD tax register-vol.2
Ex.P-36 Extract of DD tax register-vol.3
Ex.P-37 Extract of DD tax register-vol.5
Ex.P-38 Extract of DD tax register-vol.5
Ex.P-39 Extract of DD tax register-vol.14
Ex.P-40 Application dated 16.7.2009
Ex.P-41 Copy of Credit Certificates
Ex.P-42 Extract of register of Credit
Certificate (2 pages)
Ex.P-43 Extract of register of attendance for
the month of July 2009
Ex.P-44 Extract of Daily cash register
Ex.P-45 Memorandum dated 19.8.2008
Ex.P-46 Xerox copies of documents relating
to vehicle No.KA-05-AB-4554
Ex.P-47 Service particulars of accused No.1
&2
Ex.P-48 Chemical Analysis Report
Ex.P-49 Spot sketch
List of material objects marked on behalf of the prosecution:
MO.1 Pen camera-CD Article No.7
MO.2 Voice recording data -CD Article No.8
MO.3 CD Article No.9
MO.4 to covers
6
MO.7 Sample solution Article No.1
MO.8 hand wash of Ramachandra Article No.2
MO.9 Sample solution bottle Article No.3
MO.10 Right hand wash of A1 Article No.4
MO.11 Left hand wash of A1 Article No.5
MO.12 Cash of Rs.500/- Article No.6
MO.13 Cover
MO.14 Cash of Rs.5600/-
MO.15 Cover
34 Spl.C.C.120/2010
List of witnesses examined on behalf of the accused :
DW-1 A.Amaravathi List of documents marked on behalf of the accused:
Ex.D-1 endorsement dated 7.7.2009 issued by Asst.Secretary of Karnataka State Transport Authority.
Ex.D-2 Endorsement issued by RTO., Bangalore South.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 35 Spl.C.C.120/2010