Bangalore District Court
The State Of Karnataka vs Mr.Kumar on 5 April, 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 MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 5th APRIL 2017.
Spl. C.C.No. 341/2010
*****
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: Mr.Kumar,
Assistant Engineer,
Panchayath Raj Engineering Circle,
Anand Rao Circle,
Bengaluru City.
(Rep by Sri.C.G.Sundar, Advocate)
******
2 Spl. C.C. No.341/2010
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 04-09-2010.
of offence:
3. Date of First Information 04-09-2010.
Report:
4. Date of Arrest: 04-09-2010.
5. Date of Commencement 26-07-2016.
Of recording of evidence:
6. Date of Closing of evidence: 01-12-2016.
7. Date of Pronouncement of 05-04-2017.
Judgment.
8. Result of the case: Accused is acquitted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted 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 case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as Assistant Engineer in the Panchayat Raj Engineering Circle Office at 3 Spl. C.C. No.341/2010 Anandarao Circle Bengaluru. One Bachchegowda has lodged a complaint before Lokayuktha Police on 06-09-2010 by alleging that accused has demanded the bribe amount from him for moving the file relating to the allotment of contract work to form the concrete road at SC/ST Colony, Dundiganahalli, Koramangala village, Viajayapura Hobli, Devanahalli. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.37/2010. The Investigating Officer secured the witnesses and conducted pre trap proceedings in their presence and drawn the pre trap mahazar. On 04-09-2010, in between 1.15 p.m. to 1.50 p.m., in the office of the accused at Ananda Rao Circle, Bengaluru, this accused was trapped by the Lokayuktha Police when he was receiving the bribe amount of Rs.8,000/- from the complainant. Lokayuktha Police have conducted trap proceedings and drawn the trap mahazar. The accused was arrested and produced before the court. The Lokayuktha Police have continued the further investigation and the Investigating Officer has recorded the statement of witnesses and collected the file relating to the demand of bribe and also obtained the chemical analysis report in respect of the seized material objects. The Investigating Officer also obtained the service particulars of the accused and report regarding pendency of the work relating to the complainant before the accused and after investigation 4 Spl. C.C. No.341/2010 submitted the final report before the sanctioning authority. After obtaining the sanction to prosecute the accused, Lokayuktha Police have filed the charge sheet before this court by alleging that accused has committed the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1) (d) R/w Sec.13(2) of Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 7 witnesses as PW.1 to 7 and got marked Ex.P-1 to P-19 documents and MO.1 to 10 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not let in any defence evidence on his behalf. But, during the course of cross- examination of prosecution witnesses, accused got marked one 5 Spl. C.C. No.341/2010 document as Ex.D.1, by confronting the same to PW.1 during the course of his cross-examination.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Assistant Engineer in Panchayath Raj Engineering Circle, Bengaluru, for the purpose of moving the file relating to approval of estaimation of the contract work of forming the road at SC & ST Colony Dundiganahalli, Vijayapura Hoble of Devanahalli Taluk, demanded the illegal gratification from the complainant and on 04-09-2010 in between 1-15 PM to 1-50 pm, in his office at Panchayath Raj Engineering, Anand Rao Circle Bengaluru, accused demanded and accepted Rs.8,000/- from the complainant, as an illegal gratification, other than legal remuneration, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Assistant Engineer in Panchayath Raj Engineering Circle Bengaluru, on 04-09-
2010, abused his official position by illegal means and as a public servant 6 Spl. C.C. No.341/2010 demanded and accepted the illegal gratification of Rs.8,000/- from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
8. 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.
REASONS
POINT No.1:
9. This point is relating to the sanction obtained to prosecute the accused and validity of the said sanction. As the accused is a public servant working as Assistant Engineer in Panchayath Raj Engineering Circle Bengaluru, and the offences alleged against him were relating to Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, obtaining the valid sanction from the competent authority is a mandatory and statutory requirement to prosecute the accused. Before proceedings to consider the question relating to validity of 7 Spl. C.C. No.341/2010 sanction, let me first discuss the evidence let-in by the prosecution before this court.
10. CW.3-Senthil Kumar, who was examined as PW.1, deposed during the course of his evidence that, as per the requisition given by the Lokayuktha Police, he appeared before them on 04-09-2010 and complainant and another witness were introduced to him and he was told that complainant has filed a complaint alleging the demand of bribe amount by one Kumar. PW.1 further deposed about Lokayuktha Police conducting the pre trap proceedings in their presence and drawing the pre trap mahazar. PW.1 further deposed that Lokayuktha Police have directed him to accompany CW.1. PW.1 further deposed that thereafter they were taken to the Panchayat Raj Department office at Ananda Rao Circle and he and CW.1 went inside the office and CW.1 went inside the office room of accused and started talking with the accused. PW.1 further deposed that accused was holding a calculator with him and told to CW.1 that he has to pay Rs.9,625/-. PW.1 further deposed that CW.1 told the accused that he has got Rs.8,000/- with him and accused forced him to pay Rs.9,625/-, whereas CW.1 told him that he can pay only Rs.8,000/-. PW.1 further deposed that then the accused opened the drawer and asked CW.1 to 8 Spl. C.C. No.341/2010 put the amount in the drawer and Lokayuktha Police came inside the office, after receiving the signal from CW.1. PW.1 further deposed that Lokayuktha Police have enquired CW.1 about the money and he told that he has kept the same in the drawer of the accused. PW.1 further deposed that when the drawer was opened, amount was found and thereafter Lokayuktha Police have prepared the sodium carbonate solution and drawer was cleaned with the cotton and same was put into the solution and in turned into pink colour. PW.1 further deposed that Lokayuktha Police have enquired another official by name Chandramouli and seized the file relating to the complainant. PW.1 further deposed that the voice recorder was displayed before the official Chandramouli and he identified the voice of the accused. PW.1 further deposed that Lokayuktha Police have seized the calculator and the attendance register from the office of the accused and the recordings in the CD was also displayed before him and in the said recordings, there was conversation about the demand of bribe amount made by the accused and accused using the calculator to say the figure. PW.1 further deposed that Lokayuktha Police have drawn the trap mahazar as per Ex.P.3 and prepared the transcription of the recorded conversation as per Ex.P.4. PW.1 further deposed that 9 Spl. C.C. No.341/2010 accused has given the statement before Lokayuktha Police as per Ex.P.5.
11. CW.1-Bachchegowda, who was examined as PW.2, deposed during the course of his evidence that he used to do the contract work relating to Zilla Panchayat, Bengaluru Urban and he obtained the contract work of forming the road in Gonuru, Dandaganahalli and Chillagondanahalli village. PW.2 further deposed that he submitted estimation relating to the said contract work and accused was the case worker in the office of the Panchayat Raj and also Assistant Engineer. PW.2 further deposed that accused has to get the approval for the estimation and when he approached the accused for getting the approval of estimation, accused delayed the same. PW.2 further deposed that as per the advise given by his friend Ananda he lodged a complaint before Lokayuktha Police a per Ex.P.1. PW.2 further deposed that thereafter Lokayuktha Police gave some equipment to him and along with the same, he gone to the office of accused and accused told that his work is over. PW.2 further deposed that he proposed to pay a sum of Rs.9,000/- and odd to the accused and kept the bribe amount in the table drawer and immediately Lokayuktha Police came and caught the accused and took him along with them.
10 Spl. C.C. No.341/2010
12. CW.12-C. Mruthyunjaya Swamy, who was examined as PW.3, deposed during the course of his evidence that, while he was working as Chief Engineer in the Communication and Buildings at K.R.Circle, Bengaluru, he received a letter dated:14-10-2010 from ADGP, Lokayuktha seeking sanction to prosecute the accused. PW.3 further deposed that along with the said requisition letter, Lokayuktha Police have sent the final report, complaint, FIR, pre trap mahazar, trap mahazar, P.F. chemical analysis report, statement of witnesses, file relating to the demand of bribe amount, sketch of the spot and explanation given by the accused. PW.3 further deposed that he has personally verified all those documents sent to him and prima facie satisfied that the accused has committed the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, and accordingly issued the sanction as per Ex.P.8. PW.3 further deposed that he is the authorized official to dismiss the officials in the cadre of Assistant Engineer in the Panchayat Raj Department and therefore, he is competent authority to issue the sanction to prosecute the accused.
13. CW.2-Anand, who was examined as PW.4, deposed during the course of his evidence that, CW.1 is his friend and he is doing contract work and during the year 2010, he accompanied CW.1 to the 11 Spl. C.C. No.341/2010 office of Lokayuktha to lodge the complaint. PW.4 further deposed that as per the instruction of CW.1, he written the Ex.P.7 complaint against this accused alleging the demand of bribe amount of Rs.9,000/- in respect of contract work.
14. CW.14-Ravi Shankar K., who was examined as PW.5, deposed during the course of his evidence that on 03-09-2010 at about 10.30 a.m. CW.1 appeared before him and complained about this accused demanding the bribe amount for approval of the estimation prepared for contract work. PW.5 further deposed that he has handed over a digital voice recorder to CW.1 and asked him to record the conversation in the said digital voice recorder. PW.5 further deposed that on 04-09-2010 at about 10.45 a.m. CW.1 appeared before him and lodged the complaint, on the basis of which, he has registered the FIR as per Ex.P.9. PW.5 further deposed that he has secured CW.3 and 4 as witnesses and introduced CW.1 to them and furnished the copy of the complaint to them for their perusal. PW.5 further deposed about he conducting the pre trap proceedings in their presence and drawing of pre trap mahazar. PW.5 further deposed that the recordings in the voice recorder was transcripted as per Ex.P.6 and also transmitted into CD and same was seized. PW.5 further deposed that he handed over the button camera to CW.1 and asked him to 12 Spl. C.C. No.341/2010 switch on the same while approaching the accused. PW.5 further deposed that he instructed CW.1 to meet the accused and hand over the tainted currency notes to him, when demanded and thereafter give the information to their official Ravindra. PW.5 further deposed that at about 1-00 p.m. they left their office and reached Ananda Rao Circle and entered the premises of Panchayath Raj Engineering Circle Office. PW.5 further deposed that, as per his instruction, CW.1, 3 and 7 entered inside the building of the office of accused and at about 1.30 p.m. CW.1 came out and told him that the accused has not received the bribe amount and asked him to keep currency notes in his table drawer. PW.5 further deposed that he has sent back CW.1 with a direction to pay tainted currency notes as per the directions of the accused. PW.5 further deposed that at about 1.50 p.m. CW.1 gave the signal to him by wiping his head and thereafter entered the office of accused and CW.1 told him that as per the instruction of the accused he has kept tainted currency notes in his table drawer. PW.5 further deposed that while keeping the tainted currency notes, accused has enquired CW.1 as to how much is there and when CW.1 told the accused it is Rs.8,000/-, accused made calculation in his calculator and shown the amount as Rs.9,625/-. PW.5 further deposed that when he enquired the accused about tainted currency notes, accused shown his 13 Spl. C.C. No.341/2010 table drawer and as per the instruction, CW.3 took out the currency notes from the table drawer and its denomination and numbers were tallied with Ex.P.2. PW.5 further deposed that the portion of the table drawer, in which the tainted currency notes were found, was rubbed with the cotton and same was dipped in a sodium carbonate solution and it turned into light pink colour. PW.5 further deposed that accused has produced the file relating to the complainant, which was in his almaraiah and Xerox copy of the said file was obtained as per Ex.P.12. PW.5 further deposed that he has obtained the attendance register of the office of accused as per Ex.P.13 and also seized the calculator. PW.5 further deposed that he prepared the rough sketch of the said spot as per Ex.P.14 and thereafter came back to his office and CW.1 produced a button camera given to him and recordings in the button camera was transcripted as per Ex.P.4. PW.5 further deposed that recordings in the button camera was transmitted into CD and CW.6 has identified the accused and his voice in those recordings and given a report as per Ex.P.15. PW.5 further deposed that accused has given a written explanation before him as per Ex.P.5 and thereafter trap mahazar was drawn as per Ex.P.3. PW.5 further deposed about he continuing further investigation and recorded the statement of CW.2, 7 to 10 and further statement of CW.1. PW.5 further deposed that on 14 Spl. C.C. No.341/2010 05-10-2010 he obtained the service particulars of the accused as per Ex.P.16 and sketch of the spot from the PWD Department as per Ex.P.17. PW.5 further deposed that on 14-10-2010 he received the chemical analysis report as per Ex.P.18 and report regarding the pendency of the work relating to CW.1 before the accused as per Ex.P.19. PW.5 further deposed that after completion of the investigation, he submitted the final report to get the sanction and after receiving the sanction as per Ex.P.18, he filed the charge sheet before this court.
15. CW.5-Shruthi, who was examined as PW.6, deposed during the course of her evidence that on 04-09-2010 when she had been to Panchayat Raj Engineering Circle Office at Ananda Rao Circle, Bengaluru, Lokayuktha Police have came to the office and seized some amount which was found on the table drawer of the accused. PW.6 further deposed that thereafter Lokayuktha Police have directed her to appear before their office and she has given the statement before the Lokayuktha Police.
16. CW.14-Chandramouli Nayak, who was examined as PW.7, deposed during the course of his evidence that, during the year 2010, when he was serving as Superintendent Engineer in the office of 15 Spl. C.C. No.341/2010 Panchayat Raj Engineering Circle, Bengaluru, accused was serving as Assistant Engineer in their office. PW.7 further deposed that on 04-09-2010 Lokayuktha Police have asked him to appear before them in respect of trap case registered against the accused and Lokayuktha Police have displayed the audio and video recordings in his presence and asked him to identify the voice in the said recordings. PW.7 further deposed that he had identified the voice of the accused in the audio recordings and also identified the accused in the video recordings and given a report as per Ex.P.15. PW.7 further deposed that on 07-09-2010, he has given a report before the Lokayuktha Police as per Ex.P.19 by stating that accused has put up the file relating to CW.1 before him for approval and though he has approved the file on 01-09-2010, accused kept the same with him till 04-09- 2010 without taking any further action on that file.
17. The accused has not let in any defence evidence on his behalf. But, accused got marked the deposition of CW.3/PW.1 given in enquiry proceedings before the Registrar of Lokayuktha as Ex.D.1, by confronting the same to him during the course of his cross- examination.
16 Spl. C.C. No.341/2010
18. There is no dispute that the accused is a public servant, working as Assistant Engineer in the Panchyath Raj Engineering Department. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
19. In order to prove the sanction and validity of sanction, prosecution examined CW.12, Sri Mruthyunjayaswamy as PW.3 and he was the Chief Engineer of Communication and Buildings during the relevant time of according the sanction. PW.3 deposed about he receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.3 further deposed that he has personally verified all those papers and found prima facie case and satisfied about the grounds to accord sanction and accordingly issued the sanction order as per Ex.P.8.
20. The evidence of PW.3 was not seriously challenged by the accused by cross examining him, in disputing the authority of PW.3 to issue sanction and application of mind by him before issuing the 17 Spl. C.C. No.341/2010 sanction. In-fact, there is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.3 to prosecute the accused. This court dismissed the application filed by the accused under Sec.227 and 239 of Cr.P.C. to discharge him on the ground that there is no valid sanction to prosecute him. Said application was rejected by this court vide order dated 19-09-2015. It appears that the accused has not challenged he said order by filing the revision before the Hon'ble High Court of Karnataka. So, finding already given by this court regarding the validity of sanction has attained finality.
21. Now, there is no serious dispute regarding the authority of CW.12/PW.3 to issue the sanction to prosecute the accused, being the Chief Engineer in the Department of Communications and Buildings. There is also no dispute regarding application of mind by the sanctioning authority before according the sanction to prosecute the accused. In-fact, there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance upon receiving the charge sheet and registered this case. 18 Spl. C.C. No.341/2010 This court, having found the prima facie case, also proceeded to frame the charge. Under such circumstances, one cannot say that the sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 AND 3:
22. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. The accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as Executive Engineer in the office of Panchyath Raj Engineering Division, Anand Rao Circle, Bengaluru, has demanded the bribe amount of from the complainant for moving the file relating to the approval of the estimation prepared in respect of contract work of forming road at Devanahalli Taluk and received Rs.8,000/- from the complainant on 04-09-2010.
23. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, 19 Spl. C.C. No.341/2010 prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, one can say that prosecution has discharged its initial burden and entitled to get the benefit of presumption in their favour.
24. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopalakrishnaiah and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the 20 Spl. C.C. No.341/2010 presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
25. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) 2014 AIR SCW 2080 (B.Jayaraj V/s State of A.P.) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe 21 Spl. C.C. No.341/2010 amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
26. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988 is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
27. The Hon'ble High Court of Karnataka has reiterated the same view in a recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is possibility of doing any official act in favour of the complainant.
22 Spl. C.C. No.341/2010
28. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, prosecution has to prove before this court that some official work has to be done by the accused, relating to the complainant, so as to demand the illegal gratification from him.
29. The accused has denied and disputed the pendency of any official act before him in respect of the complainant, so as to demand and accept the bribe from him, as on the date of lodging the complaint and the trap. According to the accused, in respect of the complainant's work, his part of the work has already been completed much before lodging the complaint, as he put up the file before the Superintendent Engineer for his approval. Hence, according to the accused, he has nothing to perform and no official work to be done in respect of the file relating to the complainant.
30. The complaint allegations and case of the prosecution is that the accused, while serving as an Assistant Engineer in the office of 23 Spl. C.C. No.341/2010 Panchayat Raj Engineering Circle, Bengaluru, has demanded the bribe amount from the complainant to put up his file relating to the approval of estimation in respect of the contract work to be carried out by the complainant in forming the road at Devanahally Taluk. According to the prosecution, accused being the Assistant Engineer is the official who has to put up the file for approval of estimation. But the accused has failed to do his part of work by demanding the bribe amount from the complainant.
31. To appreciate the rival claim in this regard, it is necessary to consider the evidence of CW.6, who was examined as PW.7 and the report given by him as per Ex.P.19 relating to the work to be carried out by the accused in respect of the file of the complainant. One Chandramouli Nayak, who was serving as Superintendent of Engineer in the Panchayat Raj Engineering Circle, Bengaluru, was examined as PW.7 and he deposed that he has given the report as per Ex.P.19 on 07-09-2010 in respect of the work of the accused relating to the file of complainant. PW.7 further deposed that, as per Ex.P.19, accused has put up the file relating to the CW.1 before him for approval of the contract work. PW.7 further deposed that, though he has approved the file on 01-09-2010, accused kept the file with him till 04-09-2010, 24 Spl. C.C. No.341/2010 without taking any further action on that file. The complaint, as per Ex.P.7, was lodged before the Lokayuktha Police on 04-09-2010 and on the same day, this accused was trapped by the Lokayuktha Police while he was receiving the bribe amount of Rs.8,000/- from the complainant in his office at Ananda Rao Circle, Bengaluru.
32. If I draw my attention to the report given by CW.6/PW.7 as per Ex.P.19, though the Superintendent Engineer has approved the file on 01-09-2010, accused has not sent the same for dispatch section till 04-09-2010 and file was with him at the time of trap. So, even though accused has put up the file before the Superintendent Engineer and Superintendent Engineer has approved the file on 01-09-2010, accused has not done his further work in respect of that file. During the course of his cross-examination of CW.6/PW.7, he said that after his approval, file will be sent to the Technical Assistant and from the Technical Assistant, the file will be moved to the dispatch branch. When it was suggested to PW.7 that, after his approval, file would not go back to the accused, PW.7 said that he will approve only the draft approval and accused, being the Assistant Engineer, has to verify the computerized draft approval. All these answers given by PW.7 goes to show that the work of accused has not been completed in respect of the complainant's file, though the file was put up by him before the 25 Spl. C.C. No.341/2010 Superintendent Engineer and he has approved the file. Ex.P.19, coupled with the evidence of PW.7, clearly establishes that on the date of trap and on the date of lodging the complaint, file was with the accused. Though the accused has received the file on 01-09-2010, after getting the approval from Superintendent Engineer, he has not further moved the file to the dispatch section and to technical assistant. Under such circumstances, I cannot accept the contention of accused that his work relating to the complainant 's file was completed much before lodging the complaint and the trap and that he has no work to be done in respect of the complainant's file. Rather, the evidence on record clearly goes to show that accused has got some work to be done in respect of the complainant's file as on the date of lodging the complaint and on the date of trap. So the prosecution has established the first requirement regarding pendency of the official work before the accused in respect of the complainant and his file.
33. The next important question, which requires to be considered by this court is about the demand of bribe amount, which is also one of the important requirements to constitute the offence punishable under Sec.7 of the Prevention of Corruption Act. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble 26 Spl. C.C. No.341/2010 Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
34. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by the accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
35. The Hon'ble Supreme Court has expressed the same view in its Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma), wherein it was held that mere recovery of tainted notes is not enough, as there is necessity of showing the demand for illegal gratification. Same view was expressed by the Hon'ble Supreme Court in the subsequent decision reported in 2015 STPL (Web) 354 SC (Gulbar Hussain and others V/s State of Assam and another). So the ratio laid down in all those decisions are very clear on this point that the initial 27 Spl. C.C. No.341/2010 burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused.
36. According to the prosecution, there was demand on two occasions by the accused. The first stage where the accused demanded the bribe amount is before lodging the complaint when the complainant approached the accused requesting him to move the file. The second stage when the accused demanded the bribe amount, according to the prosecution, is after lodging the complaint and at the time of trap when the complainant has approached the accused along with the shadow witness. If the prosecution able to establish the demand on any one of these stages by the accused, they can establish the guilt of the accused.
37. So far as the alleged demand of bribe before lodging the complaint, prosecution rely upon the complaint allegations, evidence of the complainant, who was examined as PW.2 and also the recordings made in the voice recorder, which was given to him before lodging the complaint. The prosecution also relies upon the complaint allegations regarding the demand of bribe made by the accused before lodging the complaint. Of-course, in the complaint, there is specific allegation that the accused has demanded the bribe amount from the complainant 28 Spl. C.C. No.341/2010 before lodging the complaint, when he approached the accused for the movement of his file relating to the approval of estimation in respect of contract work. But, in the criminal cases, complaint allegations in itself are not sufficient to prove the allegations made against the accused. The allegation made in the complaint has to be independently proved by the evidence of complainant and other corroborative evidence. The complainant allegations may be sufficient to register the FIR and to set the criminal law into motion. But, when it comes to the question of proving the allegations leveled against the accused, there should be evidence in support of the complaint allegations.
38. If I draw my attention to the evidence of the complainant, who was examined as PW.2, he has not said anything regarding the accused demanding the bribe amount from him before lodging the complaint. During the course of his evidence as PW.2, complainant said that he has obtained the contract work of forming the road in Gonuru, Dandaganahalli and Chillagondanahalli village and submitted the estimation relating to the said contract work. The complainant/PW.2 further said that this accused was working as the case worker in the office of Panchayat Raj and also an Assistant Engineer and he has to get the approval for the estimation, which was 29 Spl. C.C. No.341/2010 submitted by him. PW.2 further said that when he approached the accused for getting approval of the estimation, accused used to delay the same. Therefore, he approached the Lokayuktha Police and lodged the complaint. So, the complainant/PW.2 said that the accused used to delay his work in getting the approval of the estimation and not said anything regarding the accused demanding the bribe amount from him. When the complainant has not supported its case and not deposed about the accused demanding the bribe amount, learned Public Prosecutor treated him as hostile witness and cross examined him. Even during the course of his cross-examination, complainant/PW.2 specifically denied the suggestion put to him that accused has demanded the bribe amount of Rs.9,625/- which is 1¾% of the estimation amount, for approval of the estimation and to get the signature of the Engineer. So complainant has not supported the prosecution case regarding the demand of bribe amount by the accused before lodging the complaint.
39. Another evidence available for the prosecution to prove the demand of bribe amount is the recordings in the voice recorder. According to the prosecution, when the complainant approached the Lokayuktha Police alleging the demand of bribe by the accused Lokayuktha Police have handed over a voice recorder to him and asked 30 Spl. C.C. No.341/2010 him to record the conversation between him and the accused, as a prima facie material to prove the demand and accordingly complainant met the accused, recorded the conversation between him and the accused and produced the said voice recorder before Lokayuktha Police along with the complaint, on the basis of which, FIR was registered. The Investigating Officer, who was examined as PW.5, deposed in this regard and said that on 03-09-2010, when CW.1 appeared before him and orally complained about the accused demanding the bribe and he handed over the voice recorder to him and asked him to record the conversation in the said voice recorder. The evidence of PW.5, coupled with the pre trap mahazar, which is marked as Ex.P.1 goes to show that, along with the complaint, voice recorder was produced and recordings in the voice recorder was displayed in the presence of witnesses and its recording was transmitted into CD and said CD was produced before this court which was subsequently marked as M.O.4.
40. The complainant, during the course of his evidence as PW.2, never said about the Lokayuktha Police handing over the voice recorder to him, before lodging the complaint. PW.2 also not said as to when he met the accused along with voice recorder and recording of conversation between them and there after handed over the said voice 31 Spl. C.C. No.341/2010 recorder to the Lokayuktha Police along with the complaint. PW.2 also not said about Lokayuktha Police displaying the recordings in the voice recorder in his presence and in the presence of the witnesses. Absolutely, there is no evidence as to when and where the recording was made regarding the conversation between the accused and the complainant. So, all those particulars, which are necessary regarding the recordings made in the voice recorder, are not been furnished by the prosecution before this court. More importantly, complainant, who said to have been recorded the conversation, himself has not said that he has not recorded the conversation in the voice recorder given to him by the Lokayuktha police. Any how the only evidence produced before this court regarding the said conversation is the CD, which was marked as per M.O.4 and apart from that, no other evidence has been produced in respect of the recordings of the conversation in the voice recorder. Now the question before this court is the recordings in the CD can be accepted by this court.
41. The evidence produced by the prosecution before this court in the form of CD is the secondary evidence of the recordings made in the voice recorder. The primary evidence is the voice recorder, in which the recording was actually made. Said voice recorder was not seized and not produced before this court. So, it is a case of 32 Spl. C.C. No.341/2010 prosecution producing only the secondary evidence of the recordings in the voice recorder and not the primary evidence. The secondary evidence produced before this court in the form of CD is not accompanied by the certificate, which is required under Sec.65-B of the Indian Evidence Act. When the prosecution has not produced the primary evidence of electronic record and produced only the secondary evidence, which is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act, such evidence cannot be considered and accepted by this court. This view of mine is based upon the three Judges Bench Decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of the electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65-B of the Indian Evidence Act, said secondary evidence is not admissible in evidence.
42. So, now it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said 33 Spl. C.C. No.341/2010 secondary evidence should be accompanied by a certificate under Sec. 65-B of the Indian Evidence Act in respect of genuineness of the said secondary evidence. In the case on hand, though the prosecution has produced only the secondary evidence in respect of the recordings in the voice recorder, it is not supported by the certificate under Sec. 65- B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of CD containing the recordings in the voice recorder in order to prove the demand of bribe before lodging the complaint. Hence, CD produced as per M.O.4 deserves no consideration by this court.
43. The Investigating Officer has not made any attempt to obtain the specimen voice of the accused and send the same to the forensic examination, by comparing his voice in the recordings made in the voice recorder and found in the MO.4 CD. Though the prosecution had the opportunity to prove the voice of the accused in the CD by getting the opinion of the expert, after comparing the same with the specimen voice of the accused, investigating agency has not made that effort and not utilized that option available to them. No explanation is forth coming from the Investigating Officer, either for not obtaining the expert opinion regarding the voice of the accused or 34 Spl. C.C. No.341/2010 for getting the certificate under Sec.65-B of the Indian Evidence Act, regarding secondary evidence produced before this court. Therefore, all these evidence produced by the prosecution cannot be accepted by this court.
44. There by I hold that the prosecution has miserably failed to prove the demand of bribe made by the accused before lodging the complaint, with the evidence of complainant and also with help of recordings made in the voice recorder. As I said earlier, apart from these two, there is no other evidence for the prosecution to prove the demand of bribe by the accused, before lodging the complaint.
45. The next question, which requires to be considered by this court is about the demand of bribe by the accused at the time of trap and acceptance of the same by the accused. As per the prosecution case, demand and acceptance has taken place simultaneously at the time of trap. Therefore, I have taken these two points together for discussion. Regarding the demand and acceptance of the illegal gratification at the time of trap, prosecution relies upon the evidence of the complainant, who was examined as PW.2 and shadow witness, who was examined as PW.1. The prosecution also relies upon the pre trap proceedings conducted before they proceeded to lay the trap. The 35 Spl. C.C. No.341/2010 prosecution also relies upon the positive phenolphthalein test of the drawer wash of the accused, where the tainted currency notes were said to have kept as per the directions of the accused. The prosecution also relies upon the recordings made in the voice recorder, which was handed over to the complainant at the time of pre trap proceedings in order to record the conversation between them at the time of trap. The prosecution also relies upon the evidence of some of the officials in the office of the accused to prove the acceptance of the tainted currency notes by the accused. It is on the basis of all these evidence, prosecution tried to prove that there was demand and acceptance of the bribe amount by the accused from the complainant.
46. So far as conducting pre trap proceedings and drawing of pre-trap mahazar, there is no dispute as such. The complainant, who was examined as PW.2 and shadow witness, who was examined as PW.1, have deposed in respect of these pre trap proceedings conducted by the Lokayuktha Police in their presence, handing over the tainted currency notes, conducting the hand wash of CW.4 and drawing of pre trap mahazar. The evidence of PW.1 and 2 in this regard is also corroborated by the evidence of Investigating Officer, who was examined as PW.5. All these witnesses were not cross- examined in respect of the pre trap proceedings and drawing of pre 36 Spl. C.C. No.341/2010 trap mahazar. Therefore, I found no reasons to disbelieve their oral testimony regarding the pre-trap proceedings and drawing of pre-trap mahazar. Thereby the prosecution has proved that before proceeding to lay the trap, pre trap proceedings were conducted, tainted currency notes were handed over to CW.1 and pre trap mahazar was drawn.
47. So far as the evidence relied upon by the prosecution in the form of recordings in the voice recorder to prove the demand and acceptance of bribe at the time of trap, again evidence produced before this court is the CD, which is marked as M.O.8. Apart from the said CD, no other evidence has been produced before this court in respect of the said recordings. As per the pre trap mahazar and evidence of the Investigating Officer, button camera was given to the complainant and recordings in the button camera was transmitted into CD and said CD was displayed in the presence of CW.6, who identified the accused and his voice. The button camera, in which the recordings were actually made, has not been produced before this court. Only the CD in which the recording was transmitted has been produced and it is the secondary evidence. Therefore, whatever the reasons assigned by me in respect of the recordings in the voice recorder produced by the complainant, along with complainant, is applicable for accepting the said CD. Even this CD is not accompanied by a certificate as required 37 Spl. C.C. No.341/2010 under Sec.65-B of the Indian Evidence Act. Therefore I cannot accept the same, in view of the above referred decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others).
48. The evidence of the complainant again plays an important role in proving the demand and acceptance of the bribe amount by the accused at the time of trap. The complainant, who was examined as PW.2, during the course of his cross-examination in chief, deposed that after the pre trap proceedings, when they went near the office of the accused, he met the accused and enquired him about his work and accused told him that his work is over. PW.2 further said that when he proposed to give amount to the accused, he refused to receive the same. PW.2 further said that, while coming back from the office of accused, he kept the bribe amount on the table drawer of the accused. Thereafter, Lokayuktha Police came and caught hold the accused. So, even as per the complaint allegations, at the time of trap, there is no demand by the accused. Rather, when complainant offered to pay the amount, accused has refused to receive the same. Even as per the evidence of the complainant, there is no acceptance of the tainted currency notes by the accused, because according to the complainant, 38 Spl. C.C. No.341/2010 while returning from the office of the accused, he kept the same on his table. The complainant himself keeping the amount on the table of the accused, without there being any demand by the accused, would not amounts to voluntary acceptance of the illegal gratification by the accused.
49. Having realized that the complainant has not supported its case regarding the demand and acceptance of the bribe amount at the time of trap, prosecution treated the complainant as hostile witness and cross-examined him. During the course of cross-examination, complainant/PW.2 specifically denied the suggestion that the accused has demanded to pay the amount. PW.2 also denied that the accused has asked him to keep the amount in his drawer. PW.2 also denied that accused has asked to pay that amount to one Ramalinga. PW.2 admitted that when the accused has refused to receive the amount, he come out of the office and told the Lokayuktha Police that accused has not receiving the amount from his hand. PW.2 has also admitted that the Lokayuktha Police have asked him to again approach the accused and hand over the amount as per the direction of the accused. PW.2 denied the suggestion that when he again approached the accused, he asked him to keep the amount in his drawer and accordingly, he kept the same in his drawer. PW.2 also denied the suggestion that when he 39 Spl. C.C. No.341/2010 kept the amount in his drawer, he told that it is Rs.8,000/- and then the accused took the calculator and calculate the amount and told that he has paid lesser amount to him. So, all these suggestions and answers given by the PW.2, makes it very clear that rather than accepting the amount, accused has refused to receive the same. The evidence of PW.2 also suggests that the complainant himself has kept the money on his table drawer and accused has not asked him to keep the same.
50. Even the trap mahazar and evidence of Investigating Officer, who was examined as PW.5, indicate that there was initial refusal by the accused to receive the tainted currency notes. As per the trap mahazar and evidence of PW.5, after CW.1, 3 and 7 entered inside the building of the accused, few minutes later CW.1 came out of the office and told him that accused has not received the bribe amount. Therefore, he came back to inform the same with the Lokayuktha Police. The evidence of PW.5 and the trap mahazar also goes to show that CW.1 was sent back again to approach the accused and keep the tainted currency notes as per the directions of the accused. So, one thing is very clear that the accused has refused to receive the money. If the accused has actually demanded the amount and he was 40 Spl. C.C. No.341/2010 interested to receive the bribe amount, he would not have refused the same. There was no reason for the accused to refuse the bribe amount, if he has demanded the same to do the official favour to the complainant. All these admitted and undisputed circumstances would create some doubt in the mind of this court as to the claim of the prosecution regarding the accused demanding and accepting the tainted currency notes.
51. Now, I have to consider the other evidence before this court since the complainant has not supported the prosecution case in respect of important question relating to the demand and acceptance of the bribe amount by the accused. The prosecution examined CW.2 as PW.4. As per the prosecution case, he is the friend of the complainant and accompanied the complainant, while he approached the Lokayuktha Police to lodge the complaint and Ex.P.7 complainant was written in his hand writing. CW.2/PW.4 deposed during the course of his evidence that, during the year 2010, he accompanied CW.1 to the office of Lokayuktha Police to lodge the complaint and as per the instruction of CW.1, he wrote the complaint as per Ex.P.7 and it was alleged that accused has demanded the bribe amount of Rs.9,000/-. The evidence of PW.4 is not helpful to the cause of the accused regarding demand of bribe amount, because alleged demand was not 41 Spl. C.C. No.341/2010 made in his presence. The evidence of CW.2/PW.4 may be termed as hearsay evidence regarding demand of bribe amount and it cannot be accepted by this court.
52. Another witness examined by the prosecution to prove its case is CW.5, who was examined before this court as PW.6. CW.5/PW.6 is the Junior Engineer working in the office of accused and according to the accused, she has seen the accused demanding and accepting the bribe amount from the complainant at the time of trap. During the course of her examination in chief, CW.5/PW.6 said that on 04-09-2010, when she was in the office, Lokayuktha Police came and seized amount, which was found in the table drawer of the accused and Lokayuktha Police directed her to appear before them. PW.6 further deposed that no other proceedings were taken place in her presence. CW.5/PW.6 never said about accused demanding and accepting the bribe amount from the complainant. During the course of her cross-examination CW.5/PW.6 has denied the suggestion about the accused demanding the bribe amount from CW.1 and receiving the same by asking the complainant to keep the same in his table drawer. Therefore evidence of CW.5/PW.6 also will not help the case of the prosecution to prove the allegations leveled against the accused. 42 Spl. C.C. No.341/2010
53. Even though the complainant has not supported the prosecution case, shadow witness, who was examined as PW.1, has supported the prosecution case. The prosecution has secured one more official witness, who was cited in the charge sheet as CW.4, while conducting the pre trap proceedings and drawing the pre trap mahazar. But, in spite of giving several opportunities, prosecution failed to secure the presence of CW.4 before this court. The summons, bailable warrant and non-bailable warrants issued against CW.4 was returned with a report that he is retired and his whereabouts are not known. Because of the same, CW.4 was dropped. Non-examination of CW.4 under the circumstances of this case is also huge set back to the prosecution, because of the complainant failing to support the prosecution case.
54. Now, question before this court is as to whether the sole testimony of shadow witness, who was examined as PW.1, can be accepted by this court to hold that the prosecution has proved the demand and acceptance of the bribe amount. Though CW.3/PW.1 has supported the prosecution case, in his examination in chief, he said that, after he and complainant went inside the office of accused, complainant alone went inside the office room of the accused and he was out side the office room of accused. So, though PW.1 was 43 Spl. C.C. No.341/2010 designated as shadow witness, he is unable to be with the complainant when the alleged demand and acceptance of bribe was made. It is only the complainant, who went inside the office and made the conversation with the accused and shadow witness stood outside. When the shadow witness stood out side the office, statement given by him regarding the demand and acceptance and the conversation between complainant and PW.1 cannot be accepted by this court, because he could not see and hear the same by standing out side the office room.
55. Moreover, in the cases like this, sole testimony of the shadow witness cannot be accepted in proof of demand and acceptance of illegal gratification, because being the official witness these shadow witness supporting the prosecution case is quite natural. In this regard, it is necessary to refer a recent decision of Hon'ble High Court of Karnataka reported in 2016(1) AKR 181 (Dr. S.R.Chowdaiah V/s State of Karnataka). Like in this case, regarding demand and acceptance of bribe amount by the accused, complainant, who lodged the complaint, turned hostile to the prosecution case. Both the panchas were government officials and being the government servants, they supporting the prosecution case is accepted, because of fear of initiation of disciplinary proceedings. 44 Spl. C.C. No.341/2010 Therefore, Hon'ble High Court of Karnataka has set aside the Judgment of conviction passed by the trial court and acquitted the accused. The facts and circumstances of this case is also quite similar, as the complainant has turned hostile to the prosecution case and there is only the evidence of shadow witness, which is not corroborated by any other witness, to accept the same and to convict the accused.
56. Even if this court considers the evidence of shadow witness, who was examined as CW.3/PW.1 it is not consistent with the prosecution case. This witness has also given the evidence in the enquiry proceedings against the accused before the Karnataka Lokayuktha and his deposition was confronted to him during the course of cross-examination and he admitted the same and accordingly it was marked as per Ex.D.1. If this court compare the Ex.D.1 statement along with the evidence given by PW.1 before this court there are lot of contradictions in between the same. Therefore, the sole testimony of PW.1 do not inspire the confidence to rely upon it and to convict the accused.
57. In the cases like, conviction can not based on the evidence of solitary witness. The evidence of complainant, requires the 45 Spl. C.C. No.341/2010 independent corroboration, to accept the same. Accordingly, evidence of shadow witness also requires the corroboration in respect of the material questions relating to demand and acceptance of the illegal gratification. More over, when the complainant has disowned to have made complaint and not deposed before this court about accused demanding and accepting the illegal gratification from him, conviction can be made, in view of the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 2080 (B.Jayraj V/s State of A.P.).
58. It is pertinent to note here that there is no physical acceptance of the tainted currency notes by the accused and there is no hand wash of the accused conducted by the Lokayuktha Police to prove that he has actually received the bribe amount. Even according to the prosecution and as per the evidence of Investigating Officer and the trap mahazar, tainted currency notes were found in the table drawer at the time of trap and tainted currency notes were taken out from the table drawer and table drawer was rubbed with the help of cotton and said cotton was dipped in the sodium carbonate solution, which turned into pink colour and same was sent to the chemical analysis. So there is no positive phenolphthalein report of the hand 46 Spl. C.C. No.341/2010 wash of accused to prove that there is actual and physical acceptance of the tainted currency notes by the accused.
59. Even according to the Investigating Officer and as per the trap mahazar, when the accused refused to receive the amount, the complainant went back to the Lokayuktha Police and told them about the same and then the Investigating Officer directed the complainant to keep the tainted currency notes as per the directions of the accused. The prosecution claims that since the accused has directed the complainant to keep the tainted currency notes in the table drawer he kept the same. But, this version of prosecution has no support of any evidence because the complainant himself has not deposed about the same. The accused refusing to receive the amount, coupled with the complainant going back to Lokayuktha Police to inform the same and thereafter keeping of tainted currency notes in the table drawer, without there being physical and actual acceptance, gives an indication that there is no voluntary acceptance of the tainted currency notes by the accused. Therefore, contention of the prosecution that the accused has accepted the illegal gratification in the form of tainted currency notes by asking the complainant to keep the same in his table drawer cannot be accepted by this court.
47 Spl. C.C. No.341/2010
60. Even for the sake of arguments it is accepted that there is acceptance of the tainted currency notes by the accused, because of finding of the same in his table drawer, prosecution cannot prove the guilt of the accused for the offences punishable under Sec.7,13(1)(d) R/w 13(2) of the of the Prevention of Corruption Act, 1988. Because it has miserably failed to prove the demand made by the accused. It is well established principle of law that finding of currency notes with the accused is not the proof of acceptance.
61. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena W/o Balwant Hemke V/s State of Maharastra). It was held by the Hon'ble Supreme Court in the above decision that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the accused, in the absence of evidence to prove that same was demanded by the accused and it was voluntarily accepted.
62. One more decision, which can be considered on this point the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka). It was held in the said decision that mere possession and recovery of the 48 Spl. C.C. No.341/2010 tainted currency notes from the accused, without the proof of demand, would not attract offences under Sec. 13(1)(d) of the Prevention of Corruption Act 1988.
63. It is also necessary to refer the decision of Hon'ble Supreme Court reported in 2015 SCC Online SC 814 (2015 AIR SCW 526) (P. Sathyanarayana Murthy V/s District Inspector of Police and another). It was held in the above decision that, mere possession and recovery of currency notes from accused without proof of demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
64. Same view expressed by the Hon'ble High Court of Karnataka in a decision reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka), wherein it was held that, mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused, in the absence of any demand and acceptance of the amount as an illegal 49 Spl. C.C. No.341/2010 gratification. Mere acceptance of money by the accused will not be sufficient to fasten the guilt. It was further held in the above decision that, it is not the passing of money alone which establishes a Corruption charge, because the grave-men of the offence lies in the fact that much was paid for a corrupt purpose and it is that aspect which is paramount.
65. To sum-up my discussion, though the prosecution has proved that the official work is pending before the accused in respect of the complainant, prosecution has failed to prove the demand of bribe amount by the accused, which is an essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. The prosecution has also failed to prove the physical and actual acceptance of the tainted currency notes by the accused, as they were found on the table drawer, when the trap team arrived to the spot and hand wash procedures of the accused was not made and there is no positive phenpthelene test report of the hand wash of the accused. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. The prosecution has failed to discharge the 50 Spl. C.C. No.341/2010 initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative.
POINT No.4:
66. In view of my findings on the above points, accused deserves the acquittal. Accordingly, I proceed to pass the following order:
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and his surety stands cancelled.51 Spl. C.C. No.341/2010
MO.1 to 10 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.
MO.11 currency notes are ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 5th day of April 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Sendil Kumar PW.2: Bachchegowda PW.3: C. Mruthyunjaya Swamy PW.4: Anand PW.5: Ravi shankar K. PW.6: Shruthi PW.7: Chandra Mouli Nayak 52 Spl. C.C. No.341/2010 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Pre trap mahazar Ex.P.1(a to d): Signatures of PW.1,2,5 and CW.4 Ex.P.2: Details of currency notes Ex.P.2(a): Signature of PW.1 Ex.P.3: Trap mahazar Ex.P.3(a to d): Signatures of PW.1,2,5 and CW.4 Ex.P.3(e): Signature of accused Ex.P.4: Transcription of the conversation Ex.P.4(a): Signature of PW.1 Ex.P.5: Accused statement Ex.P.5(a to c): Signatures of PW.1,5 and accused Ex.P.6: Voice recorder conversation transcription Ex.P.6(a & b): Signatures of PW.1 & 5 Ex.P.7: Complaint Ex.P.7(a & b): Signatures of PW.2 & 5 Ex.P.8: Sanction order Ex.P.8(a): Signature of PW.3 Ex.P.9: FIR Ex.P.9(a): Signature of PW.5 Ex.P.10 & 11: Requisition letters Ex.P.12: Copy of documents page 36 to 59 of charge sheet Ex.P.13: Copy of attendance register Ex.P.14: Rough sketch Ex.P.14(a): Signature of PW.5 Ex.P.15: Identification report of CW.6 Ex.P.15(a): Signature of PW.5 53 Spl. C.C. No.341/2010 Ex.P.16: Service particulars Ex.P.17: PWD sketch of spot Ex.P.18: Chemical analysis report Ex.P.19: Report regarding the pendency of the work LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Sample solution MO.2: Pink colour solution MO.3: CD MO.4: CD MO.5: Sample solution MO.6: Pink colour solution MO.7: Cover containing cotton MO.8: CD MO.9: CD MO.10: Calculator LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Deposition of PW.1 in disciplinary enquiry.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 54 Spl. C.C. No.341/2010 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C.,
accused is acquitted from the charges
leveled against him for the offence
punishable under Sec.7, 13(1)(d) R/w
Sec.13(2) of the Prevention of
Corruption Act 1988.
The bail bond executed by the
accused and his surety stands
cancelled.
MO.1 to 10 are worthless. Hence,
they are ordered to be destroyed after
expiry of appeal period.
MO.11 currency notes are ordered
to be confiscated to the State
Government after expiry of appeal
period.
(MANJUNATH NAYAK)
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
(CCH-78)