Bangalore District Court
The State Of Karnataka vs Mohan Kumar Son Of N.C on 17 July, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT 1988, BENGALURU.
(CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 17th July, 2017.
Spl. C.C.No. 155/2012
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: 1. Mohan Kumar Son of N.C.
Mariyappa, aged 30 years, (age as on
22-09-2011), Police Inspector, Wilson
Garden Police Station, Bengaluru.
Resident of No.7/1, 8th Main, 16th
Cross, Lalji Nagar, Lakkasandra,
Adugoid, Bengaluru.
2. Doddasiddiah S. Son of Siddiah,
aged 34 years, (age as on 22-09-
2011), Police Constable, Buckle
No.8835, Wilson Garden Police Station,
2 Spl. C.C. No.155/2012
Bengaluru,
Resident of No.8, 2nd block,
Rajajinagara Police Quarters,
Bengaluru.
3. Dasharatharama T.M. Son of
Manjunatha Rao, Police Constable,
buckle No.6197, Wilson Garden Police
Station, Bengaluru.
Resident of No.412, 4th Block, Frazer
Town Police Quarters, Bengaluru.
(Rep by Sri.C.G.Sundar, Advocate for
Accused No.1 & 3.)
By Sri. Venkatraman Naik, Advocate
for accused No.2)
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 21-09-2011
of offence:
3. Date of First Information 21-09-2011
Report:
4. Date of Arrest: 21-09-2011
5. Date of Commencement 02-11-2016
Of recording of evidence:
6. Date of Closing of evidence: 21-03-2017
7. Date of Pronouncement of 17-07-2017
Judgment.
8. Result of the case: Accused are acquitted.
3 Spl. C.C. No.155/2012
JUDGMENT
In this case Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has filed charge sheet against the above named accused with an allegations that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
2. The charges leveled against the accused are in the year 2007 CW.4-Sridhar has negotiated with the mother of CW.9-Manjula for purchase of her property situated in Shamanna garden, 3rd cross, Bengaluru, measuring 20X30. In that regard a document was also executed. Later CW.9 objected for the same and she has filed a complaint against CW.4 before Bengaluru Wilson garden Police. On the strength of said complaint, accused No.1 has registered a case against CW.4 in their Police Station in Cr.No.163/2011 and took further investigation of the case. Thereafter on 16-08-2012 CW.4 obtained anticipatory bail from the Hon'ble City Civil Court, Bengaluru and appeared before accused No.1 for enquiry. On 18-09-2011 accused No.1 colluding with accused No.2 and 3 secured the presence of CW.4 in his Police Station. After his appearance accused No.1 to 3 in furtherance of their common intention threatened CW.4 through accused No.1 and demanded bribe amount of Rs.Four lakhs. For 4 Spl. C.C. No.155/2012 collection of the said amount accused No.1 appointed accused No.2 and 3. CW.1-Prabhakar S.R. friend of CW.4 came to know about this act of accused No.1 to 3 towards CW.4. On 21-09-2011 CW.1 filed a complaint before Lokayuktha Police. Thereafter on the same day Lokayuktha Police have conducted trap on the accused along with the complainant and pancha witnesses. On that day they found CW.4 with accused No.2 in KFC restaurant in Forum Mall, Hosur road, Bengaluru. Thereafter Lokayuktha Police have sent CW.2 with CW.4 to watch the proceedings and conversations between CW.1, CW.4 and accused No.2 with regard to the said demand of bribe amount. On that day accused No.2 accepted Rs.Three lakhs from CW.4 as part of the bribe amount. At that time Lokayuktha Police arrested accused No.2 in the said restaurant, seized that amount in the presence of pancha witnesses, he took them to Wilson Garden Police Station found conversation of accused No.1,3 with CW.4 brought him to the Lokayuktha Police station, investigated the matter and after completion of entire investigation, they held that the accused No.1 to 3 being the public servants have demanded and accepted the bribe amount of Rs.Three lakhs from CW.1 for helping CW.4 in connection with Cr.No.163/2011 on the file of their Police Station. Hence Lokayuktha Police have filed the charge sheet against the accused.
5 Spl. C.C. No.155/2012
3. After receipt of summons, accused appeared before the court through their counsel, copy of the charge sheet was supplied under Section 207 of Cr.P.C. and they are enlarged on bail.
4. Heard arguments on both the sides on hearing before charge.
5. After hearing on HBC, after perusal of the charge sheet and the documents placed before the court this court held that there is prima facie case against the accused No.1 to 3 for having committing the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
6. The charges against accused for the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w Sec. 34 of IPC are read over and explained to them in the language known to them for that they pleaded not guilty and claims to be tried.
7. In all the Lokayuktha Police have cited as many as 30 witnesses in the charge sheet. Out of them prosecution has examined CW.1-Prabhakar- the complainant is examined as PW.1, CW.2- Santhosh Kumar-shadow witness is examined as PW.2, CW.9-Smt. 6 Spl. C.C. No.155/2012 Manjula who alleged to have filed complaint against CW.4 before the Wilson Garden Police Station is examined as PW.5, CW.16-A.N. Jithendranath, ACP, who appeared before the Lokayuktha Police for identifying the voice recorder of accused is examined as PW.4, CW.19- M.C.Narayana Gowda retired Additional Commissioner of Police, Bengaluru, who issued sanction letter for prosecuting the accused No.1 for the offences alleged against him is examined as PW.3, CW.18-Dr. G. Ramesh, retired DIG, Bengaluru, who issued sanction letter for prosecuting the accused No.2 and 3 for the offences alleged against them is examined as PW.7. CW.30-Anjan Kumar K. Investigating Officer is examined as PW.6 and got marked Ex.P.1 to P.34 and M.O.1 to 9 are marked. Despite repeated issuance of summons and warrants to CW.3 and 4 police have failed to secure the presence of the said witnesses before the court, so the prayer of the Public Prosecutor to reissue NBW against CW.3 and 4 is rejected and they are dropped. Learned Public Prosecutor submitted that he has closed his side. Statement of the accused Under Section 313 of Cr.P.C. is recorded, they denies the incriminating evidence against them. Enquired the accused about the defence evidence for that they submitted that they have no defence evidence, so their defence evidence is taken as nil 7 Spl. C.C. No.155/2012 recording of evidence is closed and case was posted for hearing arguments.
8. Heard the arguments of learned Public Prosecutor and counsels for the accused.
9. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses, the following points arise for consideration of this court:-
1. Point No.1: Whether the prosecution proves its case against the accused beyond all reasonable doubt that sanction issued for prosecuting the accused No.1 to 3 is valid?
2. Point No.2: Whether the prosecution proves its case against the accused beyond all reasonable doubt that the accused No.1 to 3 being the public servants in furtherance of their common intention have secured CW.3-
Sridhar in Wilson garden Police Station in connection with Cr.No.163/2011 and thereafter the accused No.1 has demanded illegal gratification of Rs.Four-lakhs from CW.4 to do favour in that case and authorized accused No.1 & 2 to collect that illegal gratification from CW.4. Thereafter on 21-09-
2011 CW.4 and accused No.2 have secured the presence of CW.1-Prabhakar S.R. in KFC hotel situated at Forum Mall, Hosur road, Bengaluru, in between 2.42 p.m. to 2.45 p.m. accused No.2 received part of illegal gratification amount of Rs.Three-lakhs from CW.4 thereby they have committed the 8 Spl. C.C. No.155/2012 offences punishable under Section 7 of the Prevention of Corruption Act, 1988, r/w Sec.
34 of IPC?
3. Point No.2: Whether the prosecution proves its case against the accused beyond all reasonable doubt that the accused No.1 to 3 being the public servants in furtherance of their common intention and discussion with CW.4 on 18-09-2011 authorized accused No.2 to collect the illegal gratification amount of Rs.Four-lakhs from CW.4 and therefore on 21- 09-2011 in between 2.42 to 2-45 p.m. accused No.2 received illegal gratification amount of Rs.Three-lakhs from CW.1 Prabhakar S.R.to help CW.4 in connection with their Police Station Cr.No.163/2011 thereby they have committed criminal misconduct and thereby they have committed the offences punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, r/w Sec. 34 of IPC?
10. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: AS PER FINAL ORDER.
9 Spl. C.C. No.155/2012
REASONS
POINT No.1:
11. In this case, the fact that, accused No.1 to 3 are the public servants working in Karnataka Police Department is not in dispute. The fact that, on the alleged date of trap accused No.1 was working as Police Inspector in Wilson Garden Police Station and accused No.2 and 3 were working as police constables in the said Police Station is not in dispute. Further the fact that, the Lokayuktha Police have submitted the charge sheet against the accused for having committed the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 is not in dispute. But it is the contention of the counsel for the accused that, the sanction order issued by PW.3-M.C.Narayana Gowda, Deputy Police Commissioner with respect to accused No.1 and the sanction order issued by PW.6- Anjan Kumar K. with respect to accused No.2 and 3 to prosecute the accused for the offences alleged against them is not valid. So the court ought not to have prosecute these accused for the alleged offences. Hence they are entitled for discharge. In this connection the learned counsel for the accused relied on the following Judgments: 10 Spl. C.C. No.155/2012
(2008)1 Supreme Court Cases (Cri) 130 in between State of Karnataka V/s Ammejan:
A. Prevention of Corruption Act, 1988-S.10- Sanction order- Passing of- Application of mind by sanctioning authority -Necessity of -Prerequisites for passing sanction order-Held, the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority-Materials collected during investigation which would prima facie establish existence of evidence in regard to commission of offences by the public servant concerned, held, should be available before the sanctioning authority before the order of sanction is passed-In the present case, sanction given solely on the basis of report made by IBV Police-Materials collected during investigation were not available before the sanctioning authority-On these facts, the order of High Court holding the sanction order to be illegal, held, was proper, though some observations made by the High Court did not lay down the correct legal position-Prevention of Corruption Act, 1988.S.6.
B. Prevention of Corruption Act, 1988. -S.19- sanction order -Mode of construction of-Contention that it should not be construed in a pedantic manner, upheld-Prevention of Corruption Act, 1988.S.6.
2014 CRI.L.J.930 (Supreme Court) in between (C.B.I. V/s Ashok Kumar Aggarwal) :
A. Prevention of Corruption Act (49 of 1988)_ S.19-Criminal PC.(2 of 1974), S.197-Sanction to prosecute -Grant of - Sanctioning authority has to do complete and conscious scrutiny of whole record placed before it-Sanction order should to show that authority has considered all relevant facts and applied its mind- Prosecution is under obligation to place entire record before sanctioning authority and satisfy Court that authority has applied its mind.
11 Spl. C.C. No.155/2012
2015(1)KCCR 898 in between N.A.Suryanarayana @ Suri V/s State by Inspector of Police, CBI/SPE/Bengaluru:
A. Prevention of Corruption Act, 1988-Section 19-Sanction to prosecute -Validity-IO sending draft order along with copies of statements and investigation report to sanctioning authority-Also admitting that relevant provisions of Act were mentioned therein-This alone cannot be blown out of proportion by defence-Held, order sanctioned by due application of mind by sanctioning authority.
12. Contrary to this, learned Public Prosecutor submitted before the court stating that looking into the entire charge sheet and the evidence of prosecution witnesses examined before the court, it clearly indicates that these accused have committed the offences alleged against them. While issuing sanction letter for prosecuting the accused No.1 to 3, PW.3 and 6 have verified the copies produced before them.
The details of the documents verified them are mentioned in their reports marked at Ex.P.15 and 33. For issuing sanction, the sanctioning authority has to look into the materials placed before it and know that, whether there is a prima facie case against the accused for prosecuting them for the offences alleged or not. Here by looking into the charge sheet and evidence of Investigating Officer, shadow witnesses and complainant, the fact of filing the complaint by the complainant before the Lokayuktha Police as per Ex.P.1, 12 Spl. C.C. No.155/2012 conducting of raid, seizure of cash from the accused No.2 in the presence of shadow witnesses and investigating of entire case and submitting the charge sheet before the court, clearly makes out a prima facie case against the accused to prosecute them for the offences alleged against them. Since the materials placed before the court, the sanctioning authority satisfied and hold that there is a prima facie case against the accused to prosecute them for the offences alleged against them, so valid sanction is granted, on this count the contention of the accused counsel stating that, sanction issued by PW.3 and 6 is not valid holds not good. Hence he requested the court to answer that point No.1 in the affirmative.
13. After considering the submissions of both the sides and after going through the decisions relied upon by the counsel for the accused, the fact remains for the consideration of this court is whether the sanction issued by PW.3 and 6 marked at Ex.P.15 and 33 to prosecute the accused No.1 to 3 for the offences alleged against them, a valid sanction or not the fact to be considered by this court. The authority who issued sanction is not suppose to hold pre trial for considering as to whether the allegations made against the accused for the offences alleged against them are true or false. Because for issuing 13 Spl. C.C. No.155/2012 sanction, authority has to scrutinize the documents placed before them stating as to whether the documents placed before them satisfies them to issue sanction order or not. Here by looking into the sanction letters marked at Ex.P.15 and 33, it indicates that both PW.3 and 6 have verified all the documents mentioned in the sanction letters. By looking into the said documents, they satisfied that there is a prima facie case against the accused to prosecute them for the offences alleged against them. When the documents placed by the Lokayuktha Police before PW.3 and 6 for obtaining the sanction, it satisfied them to issue sanction, that itself is sufficient to hold that the sanction issued by them is valid. Because even for framing charge, the court has to look into the materials placed in the charge sheet and court is not going to hold any pre trial enquiry stating as to whether the allegations made against the accused are valid or not. So by considering all these facts, it indicates that the sanction issued by PW.3 and 6 under Ex.P.15 and 33 are valid. I have gone through the decisions relied upon by the counsel for the accused stated above. By looking into the ratio involved in the said decisions along with the facts of the case on hand and in view of the reasons stated above this court held that the said decisions cannot be considered for discharge of accused holding that the sanction issued by PW.3 and 6 is not valid. 14 Spl. C.C. No.155/2012 With these observations this court answered point No.1 in the Affirmative.
POINT No.2 AND 3:
14. For giving findings of this court on point No.2 and 3 common discussion of the oral and documentary evidence placed by the prosecution before the court is necessary. So both the points are taken up for common discussion.
15. It is the case of the prosecution that on 15-07-2011 PW.5- Manjula filed a complaint against CW.4 Shridhar and three others before Wilson Garden Police station for having committed the offences punishable under Sections 468, 471, 420 and 506 r/w Sec. 34 of IPC. At that time accused No.1 was working as PSI and accused No.2 and 3 as police constables in Wilson Garden Police Station, Bengaluru. After registering the case CW.4 obtained anticipatory bail from 17th Additional FTC Court, Bengaluru in Crl.Mis.No.3900/2011 dated:16-08- 2011. After obtaining the bail he appeared before the Investigating Officer and executed bail bond. Despite the same, accused No.1 has harassed CW.4 to got some bribe amount from him. On account of the same, on 18-09-2011 accused No.1 secured the presence of CW.4 in his Police Station and told him that another complaint is also filed 15 Spl. C.C. No.155/2012 against him and same is registered in their Police Station. So to do favour in his favour, he along with accused No.2 and 3 demanded a sum of Rs.Four-lakhs as bribe. Thereafter he has authorized accused No.2 and 3 to collect that amount from the CW.4. CW.4 informed this matter to his friend PW.1-Prabhakar and thereafter they made all the efforts for arranging that amount. As they could not get that much huge amount, lastly complainant PW.1 has arranged Rs.Three-lakhs by borrowing the said amount as loan from his friend CW.6-M. Venkatesh. That the complainant and CW.4 were not intending to pay that amount to accused, so on 18-09-2011 at about 3 p.m. he and CW.4 went to Lokayuktha office and informed about the act of the accused No.1 to 3 towards CW.4. Thereafter they gave voice recorder to CW.4 to record his conversation in the voice recorder. Later they left that office and went to Wilson Garden Police Station, at that time they met accused No.2 Doddasiddiah and accused No.3 Dasharatharama and discussed about that bribe amount. As the accused No.1 has authorized accused No.2 and 3 to be with CW.4 so he was not permitted to live independently and to go anywhere. On 21-09-2011 in the morning CW.4 gave a call to the complainant and informed him to come to his house. When he had been to house of CW.4, at that time CW.4 found with the accused No.2. After arrival of the complainant, CW.4 told him 16 Spl. C.C. No.155/2012 that police are not permitting him to go anywhere, so he asked him to go and file a complaint before Lokayuktha Police. As per his instruction he went there filed a complaint as per Ex.P.1 and after registering the case Lokayuktha Police secured the presence of panch witnesses, CW.2 and 3 introduced to the complainant and to him and hand over copy of the complaint to read. Thereafter they discussed with the complainant and ascertain the fact that allegations made against the accused in the complaint are true and correct. Later Lokayuktha Police collected Rs.Three-lakhs bribe amount brought by the complainant to pay the same to accused, counted it, note down its numbers and denomination in a computer and taken out its print and smeared phenolphthalein powder on it and asked CW.2 to count the same. Said witness counted that amount and he notice that it was Rs.Three-lakhs, thereafter they asked him to put that amount in a cover, prepared sodium carbonate solution in a bowl, taken out some portion of the same in a separate bottle and asked with panch witness to dip his fingers in the remaining solution in a bowl. The said solution turned into pink colour and same was seized in another bottle separately. Later Lokayuktha Police provided a before the court and voice recorder and instructed him that he should switch on the same before starting conversation with the accused. In this regard they drawn pre trap 17 Spl. C.C. No.155/2012 mahazar. In the mean while complainant received a call from the accused No.2 and accused No.2 asked him about the money. Thereafter the complainant enquired the accused No.2 about his whereabouts, at that time he told that he is in KFC restaurant, Forum Mall, Hosur road, Bengaluru and asked him to come soon. Thereafter Lokayuktha Police went in their jeep along with the complainant, punch witnesses and their staff. Immediately when they went there they asked PW.2 to accompany the complainant and to observe all the trap proceedings by standing at a distance. Thereafter around 2.40 p.m. they went near that mall, Lokayuktha Police sent PW.2 along with the complainant. Around 2.42 p.m. to 2.45 p.m. the complainant went inside that Forum Mall, saw CW.4 and accused No.2 in that Forum. BY seeing the complainant accused No.2 enquired about the demanded bribe amount, for that complainant told him that, he arranged only Rs.Three-lakhs and brought that amount by keeping it in a plastic cover and gave that amount to accused No.2 and asked him to count the same. Thereafter accused No.2 told him that there are so many publics so he will count that amount in a car parking slot. After paying that demanded amount to accused No.2, the complainant gave signal to the Lokayuktha Police, they entered into that mall got introduced themselves and their staff to accused No.2 by showing identity card 18 Spl. C.C. No.155/2012 and enquired the complainant. At that time complainant told them that accused No.2 is the person to whom they gave the demanded bribe amount. Immediately Lokayuktha Police prepared a sodium carbonate solution in two separate bowls, taken out some portion of the same from two bowls in a bottle seized and sealed. Thereafter they got washed the fingers of both hands of accused No.2 in the remaining sodium carbonate solution bowls and it turned into pink colour. Later Lokayuktha Police enquired the accused about bribe amount and he handed over that plastic cover in which the bribe amount was kept. Thereafter they asked accused No.2 to give a call to accused No.1 and enquired about his presence. After giving call accused No.1 told that he and accused No.3 are in the Police Station and asked them to come there. Thereafter Lokayuktha Police went to Wilson Garden Police Station along with the complainant, pancha witnesses and above said staff. After went near the said Police Station, Lokayuktha Police gave voice recorder and button camera to CW.4 to record his conversation with accused No.2 and 3. Thereafter complainant and CW.4 went inside that station and made conversation with him. They noticed that the accused No.1 has demanded bribe amount from CW.4 and received that bribe amount. So they went inside that station and arrested him and enquired. Thereafter Lokayuktha Police returned to 19 Spl. C.C. No.155/2012 their office with the seized articles, secured the presence of the higher officer of the accused No.1 and displayed the conversation of the accused No.1 with complainant and CW.4 recorded in the voice recorder before PW.4. PW.4 identified the said voice is the voice of the accused No.1 and in that regard he gave his report as per Ex.P.16. Thereafter they prepared trap mahazar, obtained the signature of the complainant and pancha witnesses to the same. After conducting the entire investigation they obtained sanction from PW.3 and 7 to prosecute accused No.1 to 3 for the offences alleged against them. After obtaining the sanction order, Lokayuktha police City Wing, have filed charge sheet against the accused for the offences alleged against the accused.
16. In support of the case of the prosecution, learned Public Prosecutor submitted before the court stating that by looking into the evidence of PW.1 to 7 examined before the court along with exhibits marked at Ex.P.1 to P.34 and material objects M.O.1 to 9, the prosecution has proved its case against the accused beyond all reasonable doubt. Because the complainant has stated in his complaint and his evidence before the court stating that on account of complaint filed by PW.5 before accused No.1 who was working as PSI in Wilson 20 Spl. C.C. No.155/2012 Garden Police Station they secured the presence of CW.4 and demanded the bribe amount of Rs.Four-lakhs to favour him. As he was not willing to pay that amount as it was huge amount, so he took the assistant of his friend PW.1 for arranging the amount and filing a complaint against the accused. After the appearance of the complainant and CW.4 before Lokayuktha Police they supplied voice recorder to record the conversation of accused with CW.4 and after receiving that voice recorder and after receiving the complaint, Lokayuktha Police have registered a case against the accused, secured the presence of CW.2 and 3, conducted pre trap proceedings, taken the complainant and panch witnesses to KFC hotel, Forum Mall situated at Hosur road, Bengaluru by giving instructions to the complainant and panch witnesses stating as to what they should do for conducting a valid trap. The complainant and the pancha witnesses acted as per the instructions of Lokayuktha Police and they noticed receiving of Rs.Three-lakhs by the accused No.2 from complainant and after giving signal by the complainant, they entered into that hotel, got introduced themselves, arrested him, got washed the fingers of his both the hands in a sodium carbonate solution, noticed that it was turned into pink colour and seized the same in a separate bottle and enquired accused No.2 about the bribe amount, thereafter he 21 Spl. C.C. No.155/2012 produced the bribe amount. Later he took the complainant, pancha witnesses and Lokayuktha Police to Wilson garden Police Station there they found accused No.1 and accused No.3 they also made conversation with complainant and CW.4 and demanded and received the bribe amount from CW.4. So they arrested them, brought to their station, secured the presence of his higher authority to identify his voice recorded in the voice recorder, displayed it and he identified the same. Thereafter they drafted trap mahazar, obtained the signatures of the complainant, pancha witnesses and accused. Further investigation was conducted and after completion of the entire investigation, Lokayuktha Police satisfied that there was a demand and acceptance of the bribe amount by accused No.1 to 3 from the complainant and CW.4 in furtherance of their common intention. So by considering the evidence of all the prosecution witnesses the prosecution has proved its case against the accused beyond all reasonable doubt. It is true that there are some omissions and contradictions are found in the evidence of PW.1 and 2 and such omissions and contradictions are not material omissions and contradictions to disbelieve the entire case of the prosecution. Since the accused No.1 to 3 being the public servants in furtherance of their common intention demanded and accepted the bribe amount from the 22 Spl. C.C. No.155/2012 complainant and CW.4 to do some favour to CW.4 in connection with a criminal case registered in their Police Station. By looking into the evidence of Investigating Officer it is clear that the accused No.1 to 3 have committed the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 r/w Sec. 34 of IPC. So he requested the court to convict the accused by awarding maximum sentence.
17. Contrary to this learned counsel for the accused No.1 and 3 submitted before the court stating that to consider the case of the prosecution, the evidence of CW.4 Shridhar who alleged to be the victim in the hands of these accused is materials witness, but he is not examined before the court, so it is fatal to the prosecution case. When CW.4 has obtained anticipatory bail in connection with Wilson Garden Police Station Cr.No.163/2011 from the 17th Additional FTC Court, Bengaluru the question of accused No.1 arresting him in connection with that crime does not arise and further there is no evidence to show that any other case was registered against CW.4 to do any favour by demanding bribe amount. When there is no any demand and acceptance of any bribe amount by the accused No.1 to 3 from CW.4 or the complainant PW.1, the question of convicting the accused for any of the offences alleged against them do not arise. Further by 23 Spl. C.C. No.155/2012 looking into the evidence of PW.1 itself create doubt in the mind of the court that any of the accused No.1 to 3 have committed any of the offences alleged against them. There are so many omissions and contradictions in the evidence of PW.1 and 2 to believe the case of the prosecution for having committed the offences alleged against the accused. There are materials omissions and contradictions in the evidence of PW.1 and 2 and such omissions and contradictions are sufficient to disbelieve the case of the prosecution. Further the prosecution has not examined another witness CW.6 who alleged to have paid that seized amount of Rs.Three-lakhs to the complainant. Only because the Investigating Officer and partly the PW.1 and 2 have supported the case of the prosecution, is not a ground for convicting the accused for the offences alleged against them. It is well settled principles of criminal jurisprudence that to convict the accused, prosecution has to prove its case against the accused beyond all reasonable doubt if there are any doubt in the evidence of prosecution witnesses, its benefit shall be given to the accused for acquittal and accused shall not be convicted by taking the benefit of doubt. Further he has contended that, to accept the CD marked at M.O.3, 8 and 9 the Investigating Officer has not collected certificate from the person who recorded the same and prepared its conversation in a separate CD. So 24 Spl. C.C. No.155/2012 there is a bar under Section 65-B of the Indian Evidence Act to accept the conversation in such CDs as evidence in this case. In view of all these reasons, he requested the court to acquit the accused. In support of his case he relied upon on the following decisions:
1. 2012(1) KCCR 414 in between (R. Malini Vs. State of Karnataka),
2. (2015)1 SCC (Cri) 24 in between (Anwar P.V. Vs. P.K.Basheer and others),
3. 2015 SCC OnLine 814 in between (P. Sathanarayana Murthy V/s The Dist. Inspector of Police and another),
4. 2016(1) AKR 181 in between (Dr. S.R.Chowdaiah V/s State of Karnataka),
5. (1983) 1 Crimes 214/(1983) 1 GLR 664 in between (Naginlal Nandlal V/s State),
6. 2004(2)KCCR 1233 Karnataka High Court in between ( D. Rajendran V/s State by Police Inspector, B.O.I.)
7. 1994 Cri.L.J.1383 in between (Babu Lal Bajpai V/s State of U.P.),
8. 2000 Supreme Court Cases (Cri) 878 in between (Meena (Smt) W/o Balwant Hemke V/s State of Maharastra),
9. 2014 AIR SCW 4924 in between (Satvir Singh V/s State of Delhi through CBI),
10. 1969 Crl.L.J. 1016 in between (D.V.Narasimham V/s State, respondent),
11. 1992 SCC (Cri) 290 in between ( Somprakash V/s State), 25 Spl. C.C. No.155/2012
12. 1983 CRI.L.J.NOC 163(PAT.) in between (Laxmi Narain Mahton, V/s State of Bihar):
13. 1974 Supreme Court Cases (Cri) 73 in between (Darshan Lal V/S The Delhi Administration):
14. AIR 1979 Supreme Court 1408 in between (Suraj Mal V/s The State (Delhi Administration):
15. 2006 (3) KCCR 1445 in between (State of Karnataka V/s K.T.Hanumanthaiah),
16. 2006(3) 1422 in between (Manjunathan V/s State of Karnataka ),
17. (2008) 1 SCC (cri) 130 in between (State of Karnataka V/s Ameerjan),
18. AIR 2013 Supreme Court 3348 in between (State V/s Madam Mohanlal Verma),
19. (2010) 4 Supreme Court 450 in between (Banarasi Das V/s State of Hariyana),
20. IIR 2010 Kar 1983 in between (State V/s Anand),
21. 2015(1) KCCR 815 in between (R. Srinivasan V/s State),
22. 1(2001) CCR 343 SC in between (Abbay V/s State),
23. III (2009) CCR 236 SC in between (State V/s Deepak Haldy),
24. 2010 (3) KCCR 185 in between (State of Karnataka V/s M. Gopala Krishnaih),
25. 2000 (7) Kar L.J. 114 in between (State V/s H. Manjunathan),
26. CR.R.P.54/99.26 Spl. C.C. No.155/2012
18. The counsel for the accused No.2 submitted before the court stating that by looking into the evidence of all the prosecution witnesses there is no any evidence of demand and acceptance of any bribe amount from either the complainant or CW.4. No work pertains to the CW.4 was pending with accused No.2. By looking into the documents produced by the prosecution before the court along with Ex.P.6 it indicates that this accused committed the offences forgery and got executed a sale deed with respect to the property of PW.5 by playing fraud on her. By looking into the GPA alleged to have been executed by the sisters of complainant there is no any absolute right for him to execute a absolute sale deed. However, he was permitted to enter into the negotiations for sale of the property but right to execute the sale deed was reserved with them same is appearing in Sl.No.6 of the GPA. By looking into the sale deed it indicates that, on the basis of the alleged GPA he has executed a registered sale deed in his name and it is bad in law. Because for executing the sale deed there should be a vendor and vendee. He cannot act in two capacity on the basis of GPA. By considering this act of CW.4 and as he executed such sale deed in his name the complainant has filed complaint before accused No.1 to prosecute him for the offences committed by him. After registering the case accused No.1 secured the presence of PW.5, her 27 Spl. C.C. No.155/2012 sisters and the CW.4 to Wilson Garden Police Station for obtaining their specimen signatures for sending it to the expert. By considering this fact and as the CW.4 has committed cheating by forging the documents with an intention to dupe the property of PW.5. He along with complainant PW.1 hatched a plan to falsify the case against the accused. PW.1 danced at the tunes of CW.4. For proving any act of all these accused with regard to the demand and acceptance of bribe amount of Rs.Three-lakhs either from the complainant or from CW.4 prosecution has not examined materials witness CW.4 before the court so it is fatal to the prosecution case. Since there was no any work pertains to the CW.4 was pending with accused No.2 and as there was no any demand and acceptance of any bribe amount from him, so he shall not be convicted. It is true that the complainant and seizure panch witness have stated about the seizure of tainted notes of Rs.Three-lakhs from the possession of the accused No.2, but mere seizure of such a huge amount is not sufficient to conclude the guilt of the accused by accepting it as an presumption under Section 20 of the Prevention of Corruption Act, 1988. Because mere seizure of amount from the possession of this accused No.2 do not prove that he has committed the offences alleged against him. There are so many materials omissions and contradictions in the evidence of PW.1, 2 and 28 Spl. C.C. No.155/2012 PW.5 Manjula. PW.5 who has filed the complaint against CW.4 has specifically stated that CW.4 made an attempt to amicable settlement of the matter between them. By taking the advantage of the same, the complainant colluding with CW.4 hatched a plan in collusion with Lokayuktha Police get registered a false case and initiated the trap proceedings against the accused. There is no any material evidence before the court for considering the prosecution case with regard to demand and acceptance of any money by any of these accused from CW.4. Though the CDs are produced before the court, such CDs are not accompanied with the certificate as required under Section 65-B of the Indian Evidence Act. Though the Investigating Officer has supported the case of the prosecution it is not a conclusive proof. The conversion of sodium carbonate solution into pink colour itself is not a ground to hold the guilt of the accused. Because if the phenolphthalein powder is put into such a solution it will turned into pink colour as it is a chemical reaction. Only because hand wash of accused No.2 in sodium carbonate solution changing into pink colour itself is not sufficient to conclude the guilt. By considering the evidence of PW.1, 2 and 5 taken into consideration the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt. Hence, he requested the court to acquit the accused. 29 Spl. C.C. No.155/2012
19. In support of his case he has relied upon the following decisions:
1. 2016(12) SCC 150 in between (V Sejappa Vs. State by Police Inspector Lokayuktha, Chitradurga),
2. 2015(16) SCC 350 in between (Khaleel Ahmed Vs. State of Karnataka),
3. 2009 (15) SCC 200 in between (State of Maharastra V/s Dhnyaneshwar Laxman Rao),
4. 2012(13) SCC 552 in between (Rakeshkapoor Vs. State of Himachal Pradesh),
5. 2014(3) SCC 55 in between (B. Jayaraj V/s State of Andhra Pradesh),
6. AIR 2016 SC 298 in between (KrishnaChander V/s State of Delhi),
7. 2015(11) SCC 314 in between (C. Sukumaran V/s State of Kerala),
8. 2016(1) SCC 713 in between (N. Sukumaran V/s State of Andhra Pradesh),
9. 2015(10) SCC 152 in between (P. Satyanarayan Murthy V/s District Inspector of Police, AP),
10. 2014(10) SCC 473 in between Anwar PV V/s P.K. Basheer),
11. (2015)3 SCC 247 in between (M.R.Purushotham V/s State of Karnataka),
12. (2009) 3 SCC 779 in between ( M. Girish Babu V/s CBI, Cochin, High Court of Kerala),
13. 2017 CRl.L.J.1461 (Chattisgarh High Court) in between (State of Madhya Pradesh V/s Laxmi Prasad Yadav),
14. Criminal Pet.No.3750/2013 in between (Lakshmikantha V.s State and another), 30 Spl. C.C. No.155/2012
15. 2012 SCC OnLine Kar 4920 in between (State by Lokayuktha V/s B. Venkatesh).
20. After considering the submissions of both the sides, after going through the oral and documentary evidence placed by the prosecution before the court, now the points remains for consideration of this court are whether the prosecution has proved its case against the accused beyond all reasonable doubt for having committed the offences alleged against them or not are the facts to be considered by the court. It is well established principles of criminal jurisprudence that 'Everyone shall presume to be innocent until the contrary is proved'. Further it is held in several decisions by Apex Court and various High Courts stating that 'when two views are possible then the benefit of doubt must be given to the accused'. In a decision relied upon by the counsel for the accused reported in 2015 SCC OnLine 814 in between (P. Sathanarayana Murthy V/s The Dist. Inspector of Police and another) their Lordship held as follows:
A. Criminal Law-Criminal trial-Proof-Suspicion- Relevance-Reiterated that suspicion, however grave, cannot take the place of proof-Thus, prosecution cannot afford to rest its case in the realm of "may be'' true but has to upgrade it in the domain of "must be'' true-prosecution must steer clear of any possible surmise or conjecture-When two view are plausible, then the benefit of doubt must be given to the 31 Spl. C.C. No.155/2012 accused-Prevention of Corruption Act, 1988-Ss. 7,13(1)(d) (ii)&13(2).
Keeping the principles of criminal jurisprudence and the ratio involved in the above said decision, this court has to decide this case on hand.
21. Here the fact that accused No.1 to 3 are the public servants working in Police Department as PSI and police constables is not in dispute. The Legislatures have introduced this Prevention of Corruption Act with an intention to see that no public servants shall indulge him in corrupt practice and they shall discharge their duty sincerely and honest without taking any bribe from the publics and they shC®® not accept any valuable things or pecuniary advantages from any individual to do his favour. "Section 7 of the Prevention of Corruption Act, stats about the taking gratification other than legal remuneration in respect of an official act by a public servant and if such public servant takes, accept or authorize any other person to accept on his behalf for doing any favour or disfavour to a person it shall be punishable with imprisonment not less than six months and it may extended to five years and it shall also be liable to fine". Section 13 of the Prevention of Corruption Act states what is criminal misconduct of a public servant and Section 13 (1)(d) of the said Act states that "if a public servant by corrupt or illegal means obtains for himself or for any 32 Spl. C.C. No.155/2012 other person any valuables things or pecuniary advantage, or by abusing his possession as a public servant obtains for himself or for any other person any valuable things or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable things or pecuniary advantage without any pubic interest, shall be punishable with imprisonment for a term which shall not be less than one year but it may extended to seven years and shall also be liable to fine".
22. Here in this case the accused No.1 to 3 are prosecuted for the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w Sec. 34 of IPC. It is the case of the prosecution that the accused No.1 to 3 in furtherance of their common intention demanded bribe of Rs.Four-lakhs from CW.4-Shridhar for doing favour to him in connection with a crime registered in their Police Station in Cr.No.163/2011. For convicting a person under Section 7 of the Prevention of Corruption Act the prosecution has to prove its case stating that a case pertains to CW.4 was pending with such public servant, he demanded the bribe and accepted the same. If these three ingredients are fulfilled then acceptance of such bribe amount an offence punishable under Section 7 & 13(2) of the Prevention of Corruption Act. By considering the submissions of both 33 Spl. C.C. No.155/2012 sides and after going through the entire charge sheet this court held that it is the CW.4-Shiridhar is an important witness for considering the prosecution case against the accused for having committed the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w Sec. 34 of IPC. BY looking into the order sheet it indicates that despite repeated issuance of summons and warrants police have failed to secure the presence of the said witness before the court, on account of the same he was not examined before the court. By considering the same, this court held that "non- examination of a material witness is fatal to the prosecution case". Because it is he who alleged to be the victim in the hands of these accused and he was the proper person to state before the court stating as to in connection with which crime they demanded the bribe from him. Because by looking into the papers pertains to Wilson Garden Police Station Cr.No.163/2011 it idicates that PW.5 Manjula has filed a complaint before accused No.1 against CW.4 and other three persons for the offences punishable under Sections 468, 471, 420 and 506 r/w Sec. 34 of IPC. All the said accused persons have obtained anticipatory bail from competent court. Further by looking into the document it indicates that on 28-09-2007 parties namely (1) R. Prema, (2) P. Manjula, (3) P. Prameela and (4) P. Shyla have executed a GPA in 34 Spl. C.C. No.155/2012 favour of CW.4 with respect to their property bearing No.18, situated in Sy.No.25 of Audugodi village, Bengaluru South Taluk, authorizing him to do various act including execution of sale deed with respect to the same. However, in Clause (6) of the said power of attorney they have specifically stated that they will present at the time of executing the sale deed. However, their power of attorney was authorized to look out for prospective purchaser and to negotiate. On the strength of alleged GPA on 10-06-2011 he has executed a sale deed in his favour on behalf of the above said persons with respect to the above said property. When there is no absolute right for him to execute sale deed, execution of such sale deed is not a valid. Further Section 54 of Transfer of property Act defines what is "sale". As per that definition 'Sale is a Transfer of immovable property by one person called 'vendor' in favour another person called 'vendee' for valid consideration paid or promised, or partly paid or partly promised". So as per that definition and by looking into the sale deed how the market value of that property was determined by him and the mode of payment of the said property. When the said fact is silent again it creates doubt about the bonafides of CW.4. By considering such act into consideration it indicates that PW.5 filed a complaint against him and others for the above said offences.
35 Spl. C.C. No.155/2012
23. Here by looking into the said file Ex.P.6 it indicates that he and other accused have obtained anticipatory bail from competent court and after obtaining bail from competent court, accused No.1 was not having right to arrest and detain him in his custody for any purpose without prior permission of the competent court. Under such circumstances, he doing any favour or disfavour in favour of CW.4 does not arise.
24. It is true that PW.1 Prabhakar is a complainant and he filed a complaint on behalf of CW.4 against accused No. 1 to 3. PW.2 Santhosh Kumar is a shadow witness, PW.3 and 7 are the higher officers of accused No.1 to 3 who issued valid sanction for prosecuting the accused for the offences alleged against them. PW.4 K.N.JIthendranath is a higher officer of accused No.1 he has deposed before the court about identifying the voice of accused No.1 in the voice recorder. PW.5 is Manjula the complainant in Cr.No.163/2011 on the file of Wilson Garden Police Station. PW.6 Anjan Kumar K. is the Investigating Officer. For considering the guilt or innocence of the accused No.1 to 3, the evidence of PW.1,2,5 and 6 are more important than the evidence of other witnesses. Whether the evidence of said witnesses are satisfactorily for considering the guilt of the accused for 36 Spl. C.C. No.155/2012 having committed the offences alleged against them or not is the fact is to be considered by the court. It is true that Ex.P.1 is the complaint, Ex.P.2 is the trap mahazar, Ex.P.3 is the statement of complainant U/s 164 of Cr.P.C. before the Magistrate, Ex.P.4 is the pre trap mahazar, Ex.P.5 is the details of currency notes, Ex.P.6 is the charge sheet and other papers pertains to Cr.No.163/2011 of Wilson Garden Police Station. Ex.P.7 and 8 are written explanations of accused No.1 and 2 with regard to the allegations made by the complainant against them with respect to M.O.9. Ex.P.9 to 14 are the conversations between complainant with accused No.2, Ex.P.15 and 33 are the sanction letters issued by PW.3 and 7, Ex.P.16 is the report given by PW.4, Ex.P.17 is the FIR, Ex.P.18 is the requisition letter, Ex.P.19 is the rough sketch map, Ex.P.20 is the report given by PW.6, Ex.P.21 is the appointment issued by PW.3, Ex.P.22 is the requisition letter, Ex.P.23 is the service particulars of accused No.1, Ex.P.24 is the letter dated:21-10-2011, Ex.P.25 is the duty particulars of the accused, Ex.P.26 is the letter written to PWD authorities for preparing the sketch map of the scene of offence, Ex.P.27 is the sketch map of the scene of the offence, Ex.P.29 is the call detail particulars, Ex.P.30 is the letter written to FSL Bengaluru, Ex.P.31 is the chemical analysis 37 Spl. C.C. No.155/2012 report, Ex.P.32 is the statement of accused and Ex.P.34 is the requisition of 17th ACMM, Bengaluru.
25. Whether the evidence of PW.1 to 7 coupled with the documents stated above, proves the prosecution case against the accused for having committed the offences alleged against them or not are the facts to be considered by the court. Here by looking into the evidence of PW.1 the complainant in examination in chief itself it creates doubt in the mind of the court about prosecution case for having committed the offences alleged against them, because in his examination in chief at page No.2 he has stated that, as per the instructions of CW.4 Shridhar he drafted a complaint as per Ex.P.1 and said Shridhar gave a bribe amount of Rs.Three-lakhs to him to pay the same to Lokayuktha for conducting a trap. That statement of PW.1 itself creates doubt about the case of prosecution against the accused. It is true that the police can take cognizance against any person on the information given by any person in connection with cognizable offences. For convicting a person for any of the offences alleged against him, the prosecution proves its case against that accused beyond all reasonable doubt. Here by looking into the evidence of PW.1 it indicates that the contents of his complaint marked at Ex.P.1 38 Spl. C.C. No.155/2012 are not based on his personal knowledge but on the information given by CW.4. If really CW.4 has instructed him to draft that complaint why he has drafted the same in his name is the fact to be considered by this court. If really he has instructed him to draft that complaint, he ought to have obtain his signature. By looking into the complaint, it is clear that, it is the CW.4 Shridhar is the aggrieved person for filing case against the accused for demand of bribe amount. Why he has not filed complaint before the police also creates doubt in the mind of the court.
26. It is true that by looking into the evidence of PW.1,2 and 6 it is clear that on 21-09-2011 Lokayuktha Police have conducted trap, arrested accused No.2 in KFC restaurant, Forum Mall situated at Hosur road, Bengaluru and seized M.O.9. Whether receiving of that amount by the accused No.2 is on demand by accused No.1 or on his demand is the fact considered by the court. Though in the complaint it is mentioned that the accused No.1 demanded bribe amount of Rs.Four- lakhs from CW.4. In the examination in chief of PW.1 he has stated that when he went to KFC hotel situated at Forum Mall, Hosur road, Bengaluru, at that time CW.4 tried to gave that amount to accused No.2 and asked him to pay that amount to Manjula and at that time 39 Spl. C.C. No.155/2012 accused No.2 has pushed that amount. Thereafter Lokayuktha Police came and caught hold the accused No.2. The said statement of PW.2 in his examination chief on page 2 and it reads as follows:
"............Along with the Lokayuktha I went to meet CW.4 who was in KFC chicken centre at Forum Mall, Hosur road. Lokayuktha allowed me to get down from their vehicle near auto stand in front of Forum Mall and I went inside the Forum Mall and met CW.4. There was another person seated in front of CW.4. That person is now before the court and I can identify him and he is the accused No.2. I handed over the currency notes to CW.4. CW.4 tried to gave the amount to accused No.2 and asked him to pay that amount to one Manjula. Accused No.2 has pushed that amount. Lokayuktha came and caught hold the accused No.2.........".
By considering this statement into the consideration it indicates that there was no any conversation between complainant, CW.4 and accused No.1 & 2 for demand and acceptance of any bribe amount by accused No.2. This statement of PW.1 itself creates doubt in the mind of the court. In the examination in chief on page 1 complainant has stated that CW.4 gave a sum of Rs.Three-lakhs to him, but as per the prosecution case the said amount was received by the complainant from CW.6-M.Venkatesh, that M. Venkatesh is not examined before the court. So the non-examination of that material witness is also fatal to the prosecution case. The prosecution ought to have state as to 40 Spl. C.C. No.155/2012 from whom that Rs.Three-lakhs was collected by the complainant or CW.4.
27. It is true that after the statement given by PW.2 against the prosecution case, he was treated as hostile and cross-examined by the learned Public Prosecutor at length. But nothing has been elicited by the prosecution in his cross-examination to disbelieve his evidence given before the court against the prosecution case. In the cross- examination of PW.1 on page 7 PW.1 has stated that after trap proceedings he came to know that he has filed a false complaint against the accused. Said sentence reads as follows:
"........I later on, after all these trap proceedings, came to know that I have lodged a false complaint against the accused.....".
The evidence of PW.1 itself creates doubt in the mind of the court about genuineness of the prosecution case against the accused for the offences alleged against them. In the cross-examination of PW.1 he has stated that, at the instance of the police he has given his statement before the Judicial Magistrate I-Clause. By considering that statement of PW.1, it is clear that it is not his voluntary statement given before the Judicial Magistrate. So it cannot be considered for considering the guilt of the accused.
41 Spl. C.C. No.155/2012
28. It is true that PW.2 shadow witness has supported the prosecution case. Whether the evidence of PW.2 corroborates with the evidence of PW.1,5 and 6 or not, the facts are to be considered by the court. For considering the prosecution case, the prosecution has to establish its case stating that pendency of the work of CW.4 with accused No.1 was pending and he promised him to do favour in that matter and demanded bribe amount of Rs.Four-lakhs and authorized accused No.2 and 3 to receive the same. The role of shadow witness is very limited, because it is the complainant and Investigating Officer who have to establish the prosecution case against the accused beyond all reasonable doubt for convicting the accused. If there is any benefit of doubt such benefit shall be given to the accused. I have already stated as to for what reason the evidence of PW.1 is not helpful to the prosecution case. Now the court has to consider the evidence of PW.2-Santhosh Kumar a shadow witness, whether his evidence is satisfactory to believe the case of the prosecution or not. In the examination in chief he has stated that complainant handed over the cover containing the currency notes to accused No.1 in the KFC hotel in the Forum Mall situated on Hosur road, Bengaluru. PW.1 has stated that CW.4 made an attempt to gave that cover to accused No.2 requesting him to pay that amount to PW.5-Manjula. But he 42 Spl. C.C. No.155/2012 refused to receive the same. Here PW.2 stated that complainant paid that cover to accused No.2 and he opened that cover and told him that he will count that notes later on in his car. It contradicts with the evidence of PW.1. In his examination in chief he has stated that Lokayuktha Police have handed over voice recorder and digital camera to CW.1 and 4 and asked them to go inside the Wilson Garden Police Station to meet accused No.1. As per their instruction both the complainant and CW.4 went inside that station and made conversation with the accused No.1 and gave signal to the Lokayuktha Police. Thereafter all of them went inside that Police Station and Lokayuktha Police have arrested him and returned to their station along with the seized the articles, recorded the contents of voice recorder in a separate CD and contents of the same was displayed in the presence of officer of accused for identifying the voice recorded in the voice recorder. It is true that M.O.3, 7 and 8 are the CDs. Whether the voice recorder recorded in the said CDs are admissible in evidence as per the Indian Evidence Act or not, is the fact to be considered by the court. It is true that under Section 65-B of Indian Evidence Act states that electronic records are admissible if the said facts are proved by producing the originals as primary evidence before the court or such statements are accompanied with the certificates as specified under 43 Spl. C.C. No.155/2012 Section 65-B(4) of the Indian Evidence Act. Because in a decision relied upon by the counsel for the accused reported in (2015)1 SCC (Cri) 24 in between (Anwar P.V. Vs. P.K.Basheer and others) Head Note A, B and E. Their Lordships stated as to how the evidence of electronic records are admissible in evidence. Here in this case the original voice recorder and digital camera are not produced before the court and contents of the voice recorded in the voice recorder reduced into writing as appearing in Ex.P.14 are not accompanied with certificate, so it is inadmissible in evidence. In view of the ratio involved in the decision stated above. The entire evidence of the prosecution is based on the admission of bribe amount by accused No.1, no conversation between the accused No.1 with CW.4 with regard to the said bribe amount is produced or proved by the prosecution with any cogent evidence. In the absence of all these facts it creates doubt in the mind of the court about the prosecution case against the accused for the offences alleged against them.
29. In the cross-examination of PW.2 he has stated that he has not appeared and Lokayuktha Police stating that accused No.2 will count the tainted currency notes afterwards. Further he has stated that when complainant and PW.4 went inside the Wilson Garden Police Station he was waiting out side along with Lokayuktha Police. This 44 Spl. C.C. No.155/2012 statement of PW.2 again creates doubt in the mind of the court whether he heard any conversation between accused No.1, PW.1 and CW.4 in that Police Station or not. In his cross-examination on page 7 he has stated that when he entered the Wilson Garden Police Station accused No.3 was not present and he has not seen the accused No.3 on that day. The said statement reads as follows:
"........Accused No.3 was not present in the Wilson garden Police Station at that time. I have never seen the accused No.3 on that day......."
This statement of PW.2 again creates doubt in the mind of the court about common intention of accused No.1 to 3 in committed the crime. In the cross-examination of PW.2 by the counsel for the accused No.2 he has stated that complainant has not produced any document along with the complaint. The Investigating Officer has stated on the previous day he has handed over voice recorder to CW.4. There is no any explanation from the complainant or from the Investigating Officer about the said voice recorder. When he handed over that voice recorder to CW.4 to record his conversation with the accused then production of such voice recorder by the complainant before the Lokayuktha Police along with his complaint was essential. So non- production of that voice recorder by the complainant along with his complaint is fatal to the prosecution case.
45 Spl. C.C. No.155/2012
30. In the cross-examination of PW.2 by the counsel for the accused No.2 he has stated that Lokayuktha Police have not seized spy camera and voice recorder. In the absence of same how they prepared CD marked at M.O.1, 7 and 8 also creates doubt in the mind of the court. In his cross-examination on page 8 he has stated that he has not heard the conversation between complainant, CW.4 and accused No.2 in KFC Stall. It reads as follows:
".......I have not heard the conversation between CW.1,4 and accused No.2 held inside the KFC stall.....".
This statement of PW.2 again creates doubt in the mind of the court about the prosecution case stating that accused No.2 demanded and accepted the bribe amount marked at M.O.9 either from the complainant or from CW.4.
31. It is true that PW.5 has stated in her examination in chief about she filing of a complaint against CW.4 and others before Wilson Garden Police Station. The said evidence of PW.5 is not a conclusive proof for considering the guilt of the accused. In her cross-examination by the accused No.2 she has stated that after filing the complaint CW.4 approached her for amicable settlement of said matter and it reads as follows:
46 Spl. C.C. No.155/2012
" It is true that at the time of filing the complaint I came to know that CW.4 Sridhar by forging my signature has created a General Power of Attorney. It is true that on the basis of the said forged GPA CW.4 has got executed a sale deed in his favour. Because of which I filed complaint against CW.4. In respect of the complaint lodged by me Wilson Garden police have obtained my specimen signatures. It is true that after the complaint, some persons on behalf of CW.4 approached me for amicable settlement of this matter".
By considering this statement of PW.5 along with the statement of PW.1 in his examination in chief on page 2 again it creates doubt in the mind of the court stating as to whether the seized amount marked at M.O.9 is the amount demanded by the accused to do favour in favour of the CW.4 and same was accepted by accused No.2.
32. It is true that by considering the pre trap mahazar and trap mahazar marked at Ex.P.2 and Ex.P.4, the prosecution has established its case stating that after filing the complaint Investigating Officer has secured the presence of shadow witness, conducted pre trap proceedings in his office in the presence of complainant, panch witnesses and his staff and thereafter he went to the KFC hotel, situated in Forum Mall on Hosur road and conducted trap, seized M.O.9 from the accused No.2 under Ex.P.2. Whether mere seizure of that amount is not sufficient to conclude the guilt of the accused or not the fact to be considered by the court. In various decisions relied upon by 47 Spl. C.C. No.155/2012 the counsel for the accused reported in 2016(12) SCC 150 in between (V Sejappa Vs. State by Police Inspector Lokayuktha, Chitradurga), 2014(3) SCC 55 in between (B. Jayaraj V/s State of Andhra Pradesh), 2016(1) SCC 713 in between (N. Sukumaran V/s State of Andhra Pradesh), 2015(10) SCC 152 in between (P. Satyanarayan Murthy V/s District Inspector of Police, AP), (2015)3 SCC 247 in between (M.R.Purushotham V/s State of Karnataka), (2009) 3 SCC 779 in between ( M. Girish Babu V/s CBI, Cochin, High Court of Kerala), 2017 CRl.L.J.1461 (Chattisgarh High Court) in between (State of Madhya Pradesh V/s Laxmi Prasad Yadav) and unreported decision in Criminal Pet.No.3750/2013 in between (Lakshmikantha V.s State and another), dated: 11-02-2016. Their Lordships have held that without proving the fact of demand and accept by the accused with regard to the seized amount he shall not be convicted for the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act, r/w Sec. 34 of IPC.
33. Though the PW.6 Investigating Officer has supported the prosecution case. His evidence is not corroborated with the evidence of PW.1, 2 and 5. In the cross-examination of PW.6 at page 11 he has 48 Spl. C.C. No.155/2012 stated that, he has not seized the original mobile or its chip in which the conversation between the complainant and accused was recorded and he has not sent the audio and video to FSL and obtain certificate under Section 65-B of Indian Evidence Act. So non-seizure of the said articles and non-sending of seized voice recorder to experts and obtaining their certificate is fatal to the prosecution case. In his cross- examination on page 12 he has admitted that at the time of trap proceedings or earlier to that accused No.3 was not present and he appeared before the court after obtaining anticipatory bail. The said statement reads as follows:
"..........Accused No.3 was not present at the time of trap proceedings or before that. Accused No.3 first time appeared before me as per the directions of the court after obtaining the anticipatory bail......."
When the Lokayuktha Police have registered a case against all the three accused stating that they have committed the offences alleged against them in furtherance of their common intention. The absence of this accused at the time of trap itself creates doubt in the mind of the court about the prosecution case. By looking into the trap mahazar marked at Ex.P.2 it is noticed that trap against accused No.2 was conducted in a public place i.e., in KFC hotel, chicken centre situated at Forum Mall on Hosur road, Bengaluru, the other public were 49 Spl. C.C. No.155/2012 present. When such trap was conducted it might have been noticed by the owner of that shop, its workers and public. Investigating Officer has not cited any of the said persons as witnesses or recorded their statements. So non-citing the said persons as witnesses and non- recording of their statements is fatal to the prosecution case. In this regard the counsel for the accused relied on a decision reported in 2014 AIR SCW 4924 in between (Satvir Singh V/s State of Delhi through CBI). Further by considering the decision relied upon by the counsel for the accused their Lordships held that, there should be corroboration between the evidence of complainant and shadow witnesses with regard to the conducting of trap and demand and acceptance of the bribe amount by the accused. Here in this case by looking into the evidence of PW.1,2 and Investigating Officer PW.6 it contradicts each other and create doubt in the mind of the court. By considering the over all evidence of PW.1,2,5 and 6 along with ratio involved in the decisions relied upon by the counsel for the accused, the prosecution has failed to prove its case against the accused beyond all reasonable doubt for the offences committed under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act and r/w Sec. 34 of IPC.
50 Spl. C.C. No.155/2012
34. I have gone through all the decisions relied upon by the counsel for the accused and ratio involved in the said decisions are applicable to the case on hand to disbelieve the prosecution case for the offences alleged against the accused. So by considering all these facts into consideration, the prosecution has failed to prove its case against the accused beyond all reasonable doubt stating that they have committed the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act and r/w Sec. 34 of IPC. Hence, this court answered points No.2 and 3 in the Negative.
POINT No.4:
35. In view of all the reasons this court proceeds to pass the following order:
ORDER Acting under Sec.235(1) of Cr.P.C., accused No.1 to 3 are acquitted for the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act and r/w Sec. 34 of IPC.
Their bail bonds stands cancelled after lapse of appeal period.51 Spl. C.C. No.155/2012
MO.9 cash of Rs.Three-lakhs is ordered to be returned to the complainant and M.O.1 to 8 which are worthless are ordered to be destroyed after lapse of appeal period.
Note: M.O.9 cash of Rs.3,00,000-00 (Rupees Three-lakhs) is ordered to be confiscated to the State, as per order dt:18-07-2017.) ****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 17th day of July, 2017) (MALLIKARJUNGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Prabhakar PW.2: Santhosh Kumar PW.3: Narayana Gowda PW.4: K.N.Jithendranath PW.5: Manjula PW.6: Anil Kumar K. PW.7: Dr. G. Ramesh 52 Spl. C.C. No.155/2012 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: complaint Ex.P.1(a &B): Signatures of PW.1 and 6 Ex.P.2: Trap panchanama Ex.P.2(a to d): Signatures of PW.1,2,CW.3 and PW.6 Ex.P.2(e & f): Signatures of accused No.1 and 2 Ex.P.3: 164 Statement of PW.1 Ex.P.3(a): Signature of PW.1 Ex.P.4: pre trap mahazar Ex.P.4(a & b): Signatures of PW.1, 2, CW.3 and PW.6 Ex.P.5: Details of currency notes Ex.P.5(a & b): Signatures of PW.2 and 6 Ex.P.6: File at page No.81 to 228 of charge sheet Ex.P.7: Written explanation of accused No.1 Ex.P.7(a to c): Signatures of PW.2, 6 & CW.3 Ex.P.7(d): Signature of accused No.1 Ex.P.8: Written explanation of accused No.2 Ex.P.8(a to c): Signatures of PW.2, 6 & CW.3 Ex.P.8(d): Signature of accused No.2 Ex.P.9 to Ex.P.14: Conversation between CW.1 and accused No.2 Transcriptions Ex.P.9(a to 14(a)): Signatures of PW.2 Ex.P.9(b to 14(b)): Signatures of CW.3 Ex.P.9(c to 14(c)): Signatures of PW.6 Ex.P.15: Sanction order of accused No.1 Ex.P.15(a): Signature of PW.3 Ex.P.16: Report given by CW.16 (PW.4) 53 Spl. C.C. No.155/2012 Ex.P.16(a & b): Signatures of PW.4 and 6 Ex.P.17: FIR Ex.P.17(a): Signature of PW.6 Ex.P.18: Requisition letter Ex.P.18(a): Signature of PW.6 Ex.P.19: Rough sketch of spot Ex.P.19(a): Signature of PW.6 Ex.P.20: Report given by CW.17 Ex.P.20(a): Signature of PW.6 Ex.P.21: Acknowledgment by CW.3 Ex.P.21(a): Signature of PW.6 Ex.P.22: Requisition letter dt:24-09-2011 Ex.P.22(a): Signature of PW.6 Ex.P.23: Service particulars of accused No.1 Ex.P.23(a): Signature of PW.6 Ex.P.24: Letter dt:21-10-2011 Ex.P.24(a): Signature of PW.6 Ex.P.25: Duty particulars of accused Ex.P.26: Letter to PWD Department Ex.P.26(a): Signature of PW.6 Ex.P.27: PWD sketch Ex.P.28: Letter dt:03-10-2011 Ex.P.28(a): Signature of PW.6 Ex.P.29: Call details Ex.P.30: Letter to E.E. dt:24-09-2011 Ex.P.30(a): Signature of PW.6 Ex.P.31: Chemical analysis report Ex.P.32: Statement of accused No.3 54 Spl. C.C. No.155/2012 Ex.P.32(a): Signature of PW.6 Ex.P.32(b): Signature of accused Ex.P.33: Sanction order of accused No.2 and 3 Ex.P.33(a): Signature of PW.7 Ex.P.34: Requisition to 17th ACMM Ex.P.34(a): Signature of PW.6 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Sample solution MO.2: Pink colour solution MO.3: CD MO.4: Sample solution MO.5: Light Pink colour solution MO.6: Light pink colour solution MO.7&8: CDs MO.9: Currency notes LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)