Bangalore District Court
Lokayukta Police Inspector vs Arun Kumar S/O Krishnamurthy on 23 April, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 23rd day of April 2018
Spl.C.C. No.46/2010
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: 1. Arun Kumar S/o Krishnamurthy
Shetty, aged 59 years,
Asst. Executive Engineer,
BBMP Office, Rajajinagar,
Bengaluru.
2. Sri. Somanna S/o Late
Chennaiah, Aged 51 years,
Work Inspector,
Ward No.16, Kamalanagar,
Bengaluru-79.
(By Sri.K.B.K.Swamy - Adv. for A.1
Sri. V.Lakshmi Kanth Rao- Adv. for A.2)
2 Spl.C.No.46/2010
Date of commission of
offence 06-06-2009
Date of report of occurrence 06-06-2009
Date of arrest of accused:
Accused No.1: Not arrested
Accused No.2: 06-06-2009
Date of release of accused
on bail:
Accused No.1 : 30-04-2010
Accused No.2 : 09-06-2009
Date of commencement 02-03-2017
of evidence
Date of closing of 09-03-2018
evidence
Name of the complainant Sri.P. Nagaraju
Offences complained of U/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge Acquitted
Date of Judgment: 23-04-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against accused Nos.1 & 2 for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. The brief facts of the prosecution case is as under:-
3 Spl.C.No.46/2010The complainant P.Nagaraju S/o Late Thimmaiah gave complaint to Lokayukta Police Inspector on 06.06.2009 stating that he is constructing house in Sathyanarayana layout, Basaveshwaranagar by obtaining approved plan from BBMP and the construction is in progress and for giving application to obtain water and drainage connection from the BBMP he has approached the accused No.1 Arun Kumar, AEE to get road cutting permission and he asked him to meet accused No.2 Somanna and he demanded bribe of Rs.25,000/-. Accused No.1 is Asst. Executive Engineer, BBMP office, Rajajinagar and accused No.2 is Work Inspector in Ward No.16, Kamalanagar, Bengaluru and are public servants. On receiving this complaint, along with a CD alleged to be containing recorded conversation with accused, Lokayukta police have registered the case in Cr.No.43/2009 and submitted FIR to the court. In Lokayukta office, complainant produced Rs.25,000/- as amount demanded by accused. The Lokayukta Police Inspector by securing two panchas conducted pre-trap proceedings and made arrangements to trap accused. On the same day in BBMP office, Rajajinagar, when accused No.2 received tainted notes of Rs.25,000/- as bribe from complainant on behalf of accused No.1, accused No.2 was caught and Rs.25,000/- was recovered from him and trap procedures have been followed and trap mahazar was drawn and accused No.2 was arrested and produced before the 4 Spl.C.No.46/2010 court and later he was released on bail. The Investigating Officer continued further investigation and after completion of investigation and after obtaining the sanction to prosecute accused, filed charge sheet against both the accused before this Special court for the offences under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act.
3. Cognizance of offences is taken by this court. Accused have appeared and are enlarged on bail. Copy of charge sheet and its enclosures are furnished to them. After hearing both sides, regarding framing of charge and having found prima-facie materials, charges are framed and read over to them. Accused have pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 8 are examined. Documents as per Exs.P.1 to P.35 are marked. For the prosecution MOs 1 to 13 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and the accused have denied the incriminating evidence appearing against them. Accused No.1 has given written statement. The accused have not chosen to lead any defence evidence on their behalf. In cross-examination of prosecution witnesses documents at Exs.D.1 to D.5 are marked for accused No.1.
6. Heard the arguments by learned Public Prosecutor and 5 Spl.C.No.46/2010 also by Learned counsel for Accused Nos.1 & 2 and perused the records.
7. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves that there is valid sanction to prosecute accused Nos.1 and 2?
2. Whether the prosecution proves beyond all reasonable doubt that accused No.1 being public servant working as Assistant Executive Engineer in Rajajinagar Sub-
division Office, BBMP, and accused No.2 being public servant working as Work Inspector in BBMP office, Ward No.16, Kamalanagar, Bengaluru have demanded bribe of Rs.25,000/- for giving road cutting permission to the complainant for obtaining water and sanitary connection to the house of the complainant under construction and on 06.06.2009 between 5.30 to 6.00 p.m. in Rajajinagar, BBMP office in RTO complex, accused No.2 has demanded and received Rs.25,000/- from the complainant for himself and on behalf of accused No.1 as illegal gratification as a motive or reward to do official act or to show an official favour to the complainant and thereby both accused Nos.1 & 2 have committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution further proves beyond all reasonable doubt that accused No. 1 being public servant working as Assistant Executive Engineer in Rajajinagar Sub-division Office, BBMP, and accused No.2 being public servant working as Work Inspector in BBMP office, Ward No.16, Kamalanagar, Bengaluru, on 06.06.2009 between 5.30 to 6.00 p.m. by corrupt 6 Spl.C.No.46/2010 or illegal means or by abusing their position as public servants, accused No.2 demanded and obtained pecuniary advantage of Rs.25,000/- for himself and for accused No.1 without public interest, from complainant infront of Rajajinagar Sub-division office of BBMP, Bengaluru and thereby accused Nos. 1 & 2 have committed offence of criminal misconduct u/s 13(1)(d) of Prevention of Corruption Act which is punishable u/s 13 (2) of Prevention of Corruption Act?
4. What order?
8. My findings on the above points are :-
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, for the following:
REASONS
9. Point No.1: This point is relating to validity of sanction to prosecute the accused Nos.1 and 2 for the offences under Prevention of Corruption Act. Since accused No.1 is working as Assistant Executive Engineer in BBMP Office, and accused No.2 is working as Work Inspector in BBMP, both are public servants. Since, accused are charged for the offences punishable U/s 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, obtaining valid sanction from competent authority is mandatory requirement to prosecute the accused. The prosecution sanction order in respect of accused No.1 is produced as Ex.P.2. The prosecution sanction order in respect of accused No.2 is produced as Ex.P.1.
7 Spl.C.No.46/2010Bharat Lal Meena, earlier Commissioner of BBMP, Bengaluru has given evidence as PW.1 and has stated that he has gone through all the investigation materials which were placed before him along with requisition by the ADGP, Karnataka Lokayukta and he was satisfied that there was a prima-facie case to proceed against accused No.2 and after applying his mind, he has issued prosecution sanction order as per Ex.P.1. G.Siddagangaiah, earlier under Secretary to Government has given evidence as PW.2 and has stated about the prosecution sanction order issued against accused No.1. He has stated that after considering requisition of ADGP, Karnataka Lokayukta seeking sanction to prosecute accused No.1 and on going through the investigation records and after examining and applying mind, he was satisfied that there was prima-facie case to proceed against accused No.1 and therefore he sent file to the PWD Minister for approval of sanction and after getting the approval he issued prosecution sanction order as per Ex.P.2.
10. Ex.P.2 and Ex.P.1 are prosecution sanction orders of accused No.1 and 2, respectively. They show that requisition was given by ADGP, Karnataka Lokayukta along with copies of investigation papers and after considering all these materials, PW.1 has accorded sanction to prosecute accused No.2 and PW.1 sent the file to PWD Minister for approval of sanction and after getting approval he has issued prosecution sanction order against accused 8 Spl.C.No.46/2010 No.1. The authority of PWs 1 and 2 to accord sanction to prosecute accused Nos.1 and 2 is not disputed by accused. The documents referred in the order, which are charge sheet documents also show that there was prima-facie case against accused Nos.1 and 2 and on the basis of the same documents and materials, this court has taken cognizance and framed charge. Therefore, it is clear that sanction accorded by PWs 1 and 2 is by proper application of mind and are valid. Accordingly, point No.1 is answered in the Affirmative.
11. Point Nos. 2 & 3 : To avoid repetition of discussion and as both these points are interlinked with each other, they are taken together for consideration.
12. In support of the prosecution case, PWs 1 to 8 are examined. PW.4 T.Nagaraj is complainant. PW.3 P.B.Manjunath and PW.5 R.Nagaraj are panch witnesses. PW.1 Bharath Lal Meena and PW.2 Siddagangaiah are the sanctioning authorities. PW.6 K.B.Taranath is the Assistant Engineer and higher officer of accused No.2 and PW.7 Gurunath is the higher officer of accused No.1 and Executive Engineer. PW.8 Irshad Ahmed Khan is the Investigating Officer.
13. PW4, Complainant-T.Nagaraja, has stated that he is doing electrical contractor work and he had given application 9 Spl.C.No.46/2010 seeking permission for road cutting for obtaining water connection and electrical cable-line to his house in BBMP office, Rajajinagar. On 06.06.2010 he met accused No.2 Work Inspector and he demanded Rs.25,000/- stating that amount is to be given to accused No.1 and then he met Lokayukta police and they have given him voice recorder and asked him to record the conversation and after recording the conversation he went and gave complaint and also produced Rs.25,000/- and witnesses were secured and number of notes were noted down and chemical powder was smeared on the notes and one of the witnesses kept the notes in his shirt pocket and hands of that witness has been washed in the solution and solution which changed its colour was seized in a bottle and entire pre-trap proceedings was video-graphed. He has also stated that he was given instructions to give signal after giving the tainted notes to accused and pre-trap mahazar was prepared and voice recorder was affixed to his shirt. PW4 has stated that thereafter he along with one panch witness went to BBMP office and others followed him in another Government vehicle. PW.4 has also stated that they reached BBMP office of Rajajinagar and waited outside BBMP office in the complex and after 10-15 minutes accused No.2 came there in two wheeler and asked whether money is brought and then he gave the tainted notes and gave signal and Lokayukta Police Inspector along with his staff came and 10 Spl.C.No.46/2010 surrounded the accused and hand wash of accused was done. The witness has also stated about further proceedings of the trap and also about preparing trap mahazar. The witness was treated as hostile and was cross-examined by Learned Public Prosecutor wherein he has admitted the date of the trap as 06.06.2009 and has admitted the other suggestions put about the prosecution case.
14 In his cross-examination for accused No.2 PW.4 has admitted that property mentioned in the complaint was not standing in his or his wife's name. He has admitted that there is no written contract entered between himself and Ugare for doing plumbing work. He has admitted that office of accused No.2 is in Kamalanagar ward office No.16 and has stated that he has not given road cutting application in the ward office and stated that the distance between the office of accused No.2 and accused No.1 is about 3 to 4 kilometers. He has stated that at the time of giving complaint he had informed that they should go to Rajajinagar office for trap and informed that accused No.2 is working in Kamalanagar office. He has stated that accused No.2 has received the amount in the entrance and has admitted that there is a parking area to the complex and has stated that the documents were seized from the dickey of the two wheeler which was parked on the main road in front of the office near the steps of BBMP office. In his cross- examination for accused No.1, PW.4 has admitted that a letter 11 Spl.C.No.46/2010 addressed to Smt. B.R.Jayalakshmi, property No.138, dated 26.08.2008 given by BBMP, is received by him as per Ex.D.1 and admitted that Ex.D.1 was issued by accused No.1 and also identified the copy of application given by him on 22.06.2009 as per Ex.D.2. He has stated that his wife had purchased this property from B.R.Jayalakshmi. He has admitted that he had not given any application for road cutting prior to 06.06.2009. He has stated that Smt.Champa or Smt. Jayalakshmi have not given any authorization letter to apply for road cutting work. He has admitted that ward No.16 is one of the Ward coming under Rajajinagar zone and Assistant Engineer Taranath was looking after ward No.16 and accused No.2 was working under him.
15. PW.3 P.B.Manjunath, panch witness has stated about pre-trap proceedings and they going to Rajajinagar office at 5.30 p.m. and has stated that he was standing at a distance of 3 meters from complainant and accused No.2 came there and complainant asked him about the road cutting permission and he gave the amount to accused No.2 and gave signal and accused No.2 kept the amount in right side pant pocket and after Police Inspector going there, hands of accused No.2 were washed in the liquid and liquid turned to pink colour and it was seized in a bottle. PW3 was treated as partly hostile and was cross examined by learned Public Prosecutor and he has admitted prosecution case. In his cross-
12 Spl.C.No.46/2010examination for accused No.2 he has stated that they reached Rajajinagar office complex at about 6 p.m. and they have not gone inside the BBMP office and admitted that there was no persons in the BBMP office as it was 6.00 p.m. and office was closed. He has stated that accused No.2 was also not there and came later at about 6.15 p.m. He has stated that he was waiting inside the compound area of the complex and denied that he has not heard the conversation between the complainant and accused No.2. He has stated that after giving the amount, accused No.2 took out the permission letter from his two wheeler and gave it to complainant. He has stated that Lokayukta police have taken out the amount from the pant pocket of accused No.2 and thereafter they all entered BBMP office and accused No.2 told that amount is to be given to accused No.1 and accused No.1 was not in the office and thereafter they came to Lokayukta office.
16. PW.5 R.Nagaraj is another panch witness who has also stated about he appearing before the Lokayukta Police Inspector and then following of pre-trap procedure and he keeping tainted notes of Rs.25,000/- in the left side shirt pocket of complainant after applying chemical powder and also stated about his hand wash and about drawing of mahazar as per Ex.P.4. PW5 has further stated that they proceeded towards BDA Complex and vehicle was stopped at a distance and after Lokayukta Police 13 Spl.C.No.46/2010 Inspector asking him to come to the ground floor of BDA Complex, he went there and found Accused No.2 and complainant standing near two wheeler and accused No.2 told that accused No.1 asked him to collect the amount and ten received the tainted notes and also stated about further proceedings that took place. In his cross- examination, he has stated that in the compound of BDA Complex, near a two wheeler vehicle, accused No.2 was standing. He has denied that accused No.2 has not demanded the bribe amount from the complainant and tainted notes were not seized from accused No.2 and he has signed the documents without knowing the contents.
17. PW.6 K.B. Taranath, the Assistant Engineer and higher officer of accused No.2 has stated in his evidence that in Lokayukta office he was asked to identify the voice and recording of conversation was played and he found that voice heard was matching with voice of accused No.2 and has also stated that he has given attested copy of attendance register. In his cross- examination, he has stated that accused No.2 was working in Kamalanagar ward office and he had come to that office about 4 to 5 months prior to the incident. He has stated that A.E.E is the final authority in giving road cutting permission. He has stated that if any person seeks road cutting permission, it will come to his notice and has stated that he has seen the property of the complainant 14 Spl.C.No.46/2010 Nagaraj and High-tension electricity line is passing over the property and earlier application for construction in the said property was rejected and admitted that there after Nagaraj had not filed any application before him or before accused Nos.1 and 2. He has admitted that he is not an expert to recognize the voice. In cross- examination for accused No.1 he has stated that Ex.D.2 is written by him and has stated that on the request of complainant Nagaraj he wrote Ex.D.2 on 22.06.2009 and has stated that he was not knowing that the trap case was already registered before that date. He has stated that on the date of trap in the evening, he came to know about the trap. He has also identified the order passed by his higher officer against him as Ex.D.3 and admitted that in respect of property of wife of the complainant as H.T. line is passing in the property, on 04.06.2009 final notice was given for vacating the construction as per Ex.D.4. He has identified copy of note sheets confronted to him bearing his writing and signature as Ex.D.5.
18. PW.7 Gurunath is the Executive Engineer and higher officer of accused No.1. He has stated that on 22.06.2009 in Lokayukta office, audio cassette was played before him and he heard and found that one voice was appearing to be voice of accused No.1 and he has given report as per Ex.P.13. He has also stated that he has given details of work of accused No.1 and regarding the work of complainant as per Ex.P.14 and also given 15 Spl.C.No.46/2010 attested copy of the road cutting register showing the application of B.R.Jayalakshmi as per Ex.P.15. In his cross-examination for accused No.1, he has stated that before playing the audio cassette in the Lokayukta office, he was not shown the original voice recorder or any original instrument in which the said original recording was made. He has stated that he was not even informed as to what is the size of file and what is the duration of the conversation and when and at what time and where the said conversations was recorded. He has stated that he cannot say definitely that the voice which he heard in the recordings is that of accused No.1. He has admitted that Ex.D.5 at Page No.4 in Para No.11, he has made the notes and has signed in the last page of Ex.D.5 and last paragraph is the notes written by him and it contains his signature.
19. PW.8 Irshad Ahmed Khan, is the Investigating Officer. He has stated about registering of the case and securing PWs 3 and 5 and following pre-trap procedure and has stated that they went to BBMP office, Rajajinagar and after complainant flashed signal from varanda of BBMP office, immediately they went there and complainant shown accused No.2 as person who demanded and received the tainted notes from him and thereafter further proceedings of trap like hand wash of accused No.2 and recovery of amount from accused No.2 which was in his pant pocket are 16 Spl.C.No.46/2010 followed. He has stated about further investigation done. PW.8 has also stated that on 08.06.2009 he again secured panch witnesses and complainant appeared and produced a CD containing the conversation with accused Nos.1 and 2 before the trap, and conversation is transcribed as per Ex.P.8 and voice of accused No.1 is identified by Gurunath. He has also stated about filing of the charge sheet after completion of investigation. In his cross- examination for accused No.1, he has stated that he has not enquired as to in whose name property is standing and whether approved plan is obtained for construction and he has not asked complainant to produce the sanctioned plan and he has not obtained certificate under Sec.65-B of Indian Evidence Act with regard to CDs. The PW8 has stated that he has not enquired Smt. Champa or Smt.Jayalakshmi and has stated that he has not gone to the disputed property in the course of investigation. He has also stated that he has not taken voice samples of accused and denied that to save CW4 Taranath he has twisted the case against accused No.1. In his cross-examination for accused No.2, PW.8 has stated that he has not enquired whether property was standing in the name of complainant and whether accused No.2 was having any authority to grant permission for road cutting. PW8 has stated that he has not given any voice recorder to the complainant before 06.06.2009 and admitted that the place where trap was conducted 17 Spl.C.No.46/2010 was not the office of accused No.2. He has denied that accused No.1 was not found in the office they have caught accused No.2 who was in the RTO office in the same complex and prepared false documents and registered false case.
20. For the prosecution documents are marked as Exs.P.1 to P.35. Ex.P10 is complaint and Ex.P.16 is FIR. Exs.P.1 and 2 are the prosecution sanction orders. Ex.P.3 is the sheet containing number of currency notes and Ex.P.4 is the pre-trap mahazar. Ex.P.5 is trap mahazar and Ex.P.7 is the cassette seizure mahazar. Ex.P.6 is sample seal and Ex.P.11 is the acknowledgment given by PW.5 and Exs.P.8, 9 and 17 are the transcriptions of the recordings in the CD. Ex.P.12 is the attendance register and Ex.P.13 is the report of PW.7 and Ex.P.14 is details of work of accused and pendency of work of complainant. Ex.P.15 is the copy of the page of Register showing application given for road cutting permission on 22.06.2009. Exs.P.18 to P.22 are the photographs of the pre-trap and Exs.P.25, 26, 27, 28 & 29 are the photographs taken during trap. Ex.P.23 is the explanation given by accused No.2. Ex.P.24 is the attested copy of the documents seized from accused No.2 pertaining to work of the complainant. Ex.P.30 is the chemical examination report, Ex.P.31 is the spot sketch, Ex.P.32 is the work details of accused No.2 and work of complainant. Ex.P.33 an 34 are service details of accused. Ex.P.35 is the B-register extract of 18 Spl.C.No.46/2010 vehicle of accused No.2. For the prosecution, material objects are marked as MOs 1 to 13. The pant of accused No.2 is MO1. Metal seal is marked as MO2 and seized cash is marked as MO3, MO4 to 10 are bottles containing the solution taken and seized at different stages. The CDs are marked as MOs 11 to 13.
21. The accused have not lead evidence on their behalf. However, in cross-examination of prosecution witnesses documents are marked for accused no.1. The copy of the letter given to Smt.B.R.Jayalakshmi which is received by PW4 is marked as Ex.D1. Copy of application given to AEE by PW.4, which is written by PW6 on 22.06.2009 is marked as Ex.D.2. Copy of office order passed against PW.6 is marked as Ex.D.3 and the office memorandum dated 04.06.2009 issued by accused No.1 with regard to several constructions including the construction of Smt. Jayalakshmi is produced as Ex.D.4. Copy of note sheets written by PW.6, accused No.1 and PW7 in the course of their duty with regard to the construction in property No.138 of B.R.Jayalakshmi is produced as Ex.D.5.
22. In order to bring home the guilt of the accused for the offences punishable under section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, prosecution have to prove that they being public servants have demanded and accepted illegal gratification for doing some official act or for doing official favour to 19 Spl.C.No.46/2010 complainant. Therefore, pendency of the official act or capacity of the accused to do official favour to the complainant is also necessary to be established by the prosecution. Under section 20 of the P.C.Act, there is presumption available in respect of offence under Section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon the accused only when prosecution discharges the initial burden of proving that accused have demanded and accepted illegal gratification. On proof of demand and acceptance, presumption can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7. On proof of commission of offence under Section 7, the offence of criminal misconduct under Section 13(1)(d) will also be established.
23. The accused No.1 was working as Assistant Executive Engineer in Rajajinagar Sub-division of BBMP. Accused No2 was working as work Inspector in Kamalanagar ward No.16 coming under Rajajinagar Sub-division. As per prosecution case, for giving road cutting permission for the purpose of obtaining water and sanitary connection to the building under construction of the complainant, accused have demanded Rs.25,000/- bribe. The complainant-PW4 has stated about said demand of bribe by accused Nos.1 and 2 for giving road cutting permission. PWs 3 and 5 who are the panch witnesses stated about the acceptance of 20 Spl.C.No.46/2010 bribe amount by accused No.2 on behalf of accused No.1 and even Investigating Officer, PW.8 has stated about apprehending the accused No.2 at the spot. In Ex.P.10-complaint, date on which accused demanded bribe amount is not mentioned. PW.4 has also not stated the date on which he met accused Nos.1 and 2 and they have demanded bribe. It is stated that regarding demand of bribe, PW4 has produced voice recorded in the CD along with complaint. Ex.P.17 is stated to be transcription of the recordings in the CD. As per the evidence of PW.4, when accused No.2 demanded bribe amount, he had come to Lokayukta office and they gave him Voice Recorder and then he recorded the conversation and along with voice recorder he gave complaint. However, in Ex.P.10 complaint or in the evidence of PW.8 Investigating Officer, there is no reference to complainant appearing before the Lokayukta police earlier and taking voice recorder and then again coming after recording conversation with accused and producing the voice recorder. As per Ex.P.10 and evidence of PW.8, CD was produced by complainant along with complaint and that was played in which there was conversation with accused No.2. PW.4 has not stated about accused No.1 demanding bribe amount from him. However, there is a cassette seizure mahazar drawn as per Ex.P.7 on 08.06.2009 that is, subsequent to the trap. In Ex.P.7 it is mentioned that complainant had earlier met accused No.2 seeking 21 Spl.C.No.46/2010 permission for road cutting and then he was taken to accused No.1 and he had talked to accused No.1 in his mobile and recorded conversation and it was transmitted to CD and produced and same was seized by this mahazar. The transcription of alleged conversation between accused No.1 and 2 with complainant is marked as Ex.P.8. In these transcriptions at Ex.P.17 and Ex.P.8, the date of the conversation is not mentioned. In the entire complaint or in the evidence of PW.1 or PW.8, date on which complainant had conversation with accused No.1 and 2 as per Ex.P.17 and Ex.P.8 is not stated. CD containing conversation as per Ex.P.8 is produced by the complainant on 08.06.2009 that is subsequent to the date of the trap. PW.4 has not stated about any specific demand for Rs.25,000/- by accused No.1. He has only stated that accused No.2 told him that for getting the work, Rs.25,000/- is to be given to accused No.1.
24. To prove the demand of bribe amount by accused prior to giving of complaint, these alleged two conversations of complainant with accused are the only evidence produced before the court. The CD produced by the complainant at the time of giving complaint is marked as MO.11 and transcription is Ex.P.17 and the CD seized by Ex.P.7 is MO.13 and transcription of the CD is Ex.P.8. As stated above, the complainant has not stated specifically about demand of any bribe by accused No.1. It is only 22 Spl.C.No.46/2010 mentioned that accused No.2 has demanded the amount on behalf of accused No.1. Except these alleged transcriptions of the conversations and CDs and the evidence of PW.4 there is no other evidence to establish the alleged demand of bribe amount by accused persons. According to the prosecution, even at the time of trap there was demand for money by accused No.2 and only on demand, PW.4 has given the tainted notes to the accused No.2. This is stated to have been seen by PW.3 who is a shadow witness. However, PW.5 has also stated that before him accused No.2 asked for money and then complainant gave the tainted notes etc. Therefore, at the time of trap also there was a demand for bribe made by accused No.2 as per the case. Even with regard to the same, there is recording in voice recorder, which is stated to have been transmitted to CD and seized as article No.8 and marked as MO-12. The transcription of the conversation recorded in the voice recorder is transcribed as Ex.P.9. Therefore, in the transcriptions at Ex.P.17, Ex.P.8 and Ex.P.9 there is stated to be demand for bribe by the accused.
25. As admitted by PW.8 and PW.7 the original instrument in which these conversations were recorded are not seized and are not produced before the court. PW.7 has stated that he was not even informed as to in which devise the recordings were made and he do not know even the size and duration of the conversation.
23 Spl.C.No.46/2010The recordings in the CD is stated to have been played before PW.6 Taranath who is higher officer of accused No.2 and recording of the conversation in the CD produced on 08.06.2009 is stated to have been played before PW.7 and they have identified voice of accused No.2 and accused No.1 respectively. PW.6 has admitted that he is not an expert to recognize the voice and admitted that when suddenly he received the phone call he cannot identify the voice immediately and in the chief-examination he has stated that the voice in the tape-recorder was matching with the voice of accused No.2. PW.7 in his evidence has stated that audio cassette was played before him and he was asked to identify the voice and on hearing he found that one voice was appearing to be that of accused No.1 and thereafter Lokayukta police have prepared the report and he has signed. He has admitted that there was disturbance and has stated that he cannot say definitely that the voice which he heard in the recordings is that of accused No.1. The alleged voice of accused recorded in the CD produced by the complainant before the trap and after the trap and even the CD which was transmission from the voice recorder at the time of trap are not sent for experts opinion in the course of investigation by taking sample voice of accused Nos.1 and 2. PWs 6 and 7 are not experts to identify the voice. Under such circumstances, only on the opinion of PWs-6 and 7 it cannot be held that the voice heard in 24 Spl.C.No.46/2010 the recordings produced by the complainant are that of accused Nos.1 and 2.
26. Apart from this, learned counsel for accused have submitted that CDs and transcriptions at Exs.P.8, 9 and P.17 and the CDs MOs 11 to 13 are not admissible in evidence as these secondary evidence of electronic recordings are not supported by certificate under Sec.65-B of Indian Evidence Act. The CD of the recordings in the voice recorder at the time of trap is at MO-12 and its transcription is Ex.P.9. As the original devise from which these recordings were made are not produced and the CD and the transcriptions from the original devise are not supported by certificate under Sec.65-B of the Evidence Act, it is contended that they are not admissible in evidence.
27. In a decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records and has held that "when the secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act". In view of this decision, the CDs at MO- 11 to 13 and the transcriptions at Exs.P.8,9 and P.17 are not admissible in evidence. Similarly, though photographs are stated to 25 Spl.C.No.46/2010 be taken at the time of pre-trap and trap proceedings as per Exs.P.18 to P.22 and P.25 to P.29, even in respect of these photographs the chip and the original camera in which the photographs are taken are not produced. These photographs which are also secondary evidence, without the support of 65-B certificate they are not admissible in evidence. Hence, these CDs and photographs and transcriptions do not help the prosecution to prove the alleged demand of bribe by accused.
28. Coming to the evidence of PW.4 he has not stated about demand of bribe by accused No.1. He has stated about accused No.2 demanding Rs.25,000/-. According to PW.4 he was making construction in his property and had given application for road cutting for the purpose of obtaining water connection and electrical cable. As stated above, the date on which he met accused No.1 or accused No.2 and date on which he recorded the conversation is not stated. Similarly, in cross-examination PW4 has stated that property mentioned in the complaint is not standing in his name. He has stated that property is purchased in the name of his wife, Smt.Champa, but khata was not changed in her name. Though, this witness has stated that Ex.P.9 is copy of application submitted by him it should be Ex.P.24 as Ex.P.9 is not the application. Ex.P.24 is copy of application which is stated to have been seized at the time of trap and it is stated by PW.8 that on questioning accused No.2 26 Spl.C.No.46/2010 he had taken out these documents from dickey of the Honda active vehicle and produced before him and they have taken copies and same is Ex.P.24. Therefore, Ex.P.24 is the application alleged to have been given by complainant for getting road cutting permission along with the records. PW.4 in his evidence has stated that he has given application seeking permission for road cutting and approached accused Nos.1 and 2. Ex.P.24 does not appear to be a proper application given for obtaining road cutting permission. Ex.P.24 application is blank and is signed by Proprietor Ugare Electrical and Engineering Works. It does not contain date, number of the property and name of the person on whose behalf the application has been given etc., There are some other documents like copy of khata certificate, notice which are standing in the name of B.R.Jayalakshmi and is in respect of property No.138 of Kamalanagar Ward No.16 and are of the year 2006-2007. On the basis of Ex.P.24, it cannot be held that complainant had given application seeking road cutting permission in respect of property No.138.
29. Admittedly, the property was not standing in the name of complainant or his wife Champa. The sale deed of the wife of the complainant is not produced. When the said sale deed is executed is not stated. Neither Smt. Jayalakshmi nor Smt. Champa are enquired in the course of investigation and are not cited as 27 Spl.C.No.46/2010 witnesses. Absolutely no documents are before the court to show that Property No.138 belonging to the complainant and he is making construction in the said property and he has applied for road cutting permission as contended by him. In Ex.P.24 application, signature of PW4, his wife or of B.R.Jayalakshmi is not found. There is material to show that the complainant or his wife had given application for road cutting permission. When application itself is not pending before the BBMP, complainant approaching accused Nos.1 and 2 and they demanding bribe for attending the work does not arise. Apart from this, in Ex.P.14 Report given by PW.7, at Sl. No.3, it is mentioned that in respect of case of C.Nagaraj, no work was pending before Arun Kumar, AEE i.e. accused No.1. Similarly, in Ex.P.32 given by PW.6 Taranath it has been mentioned in Sl.No.3 that in respect of case of the complainant C.Nagaraj, there was no work pending in their office till 20.06.2009. Therefore, as per Ex.P.32 and Ex.P.14 there was no work of the complainant pending before accused No.1 or accused No.2. Interestingly in Ex.P.14, it is mentioned that on 22.06.2009 application has been given by Nagaraj on behalf of Smt. Jayalakshmi for obtaining road cutting permission. The copy of the relevant entry in the relevant register is also produced at Ex.P.15, which show that Ugare Electrical and Engineering Works has moved the application for road cutting permission on behalf of 28 Spl.C.No.46/2010 B.R.Jayalakshmi pertaining to property No.138. Therefore, it is on 22.06.2009 i.e. subsequent to the trap, application has been given seeking road cutting permission. Therefore, as on the date of giving complaint on 06.06.2009 there was no application given for road cutting permission before accused Nos.1, 2 or in the BBMP office. No such documents are produced to show that such work of complainant was pending before accused Nos.1 or 2 as on 06.06.2009. Under such circumstances, only on the evidence of PW.4 stating that accused No.2 has demanded bribe of Rs.25,000/- to give road cutting permission for obtaining water and electrical cable connection, alleged demand of bribe by accused No.1 or accused No.2 does not get established. When the property was not standing in the name of complainant or his wife, question of complainant approaching accused Nos.1 and 2 for road cutting permission does not arise.
30. For demanding of the bribe amount, there must be work pending with the accused. Ex.P.14 show that on 22.06.2009 the application has been given for road cutting and Ex.P.15 show that it has been entered in the register. In respect of Ex.P.24 there is no such entry appears to have been made in the Register, as otherwise, in the course of investigation, the Investigating Officer would have secured the same. Exs.P.14 and P.15 which is part of the charge sheet show that as on 06.06.2009 there was no such 29 Spl.C.No.46/2010 work pending with BBMP or accused Nos.1 and 2 pertaining to the road cutting permission to the property No.138 in which complainant claims his ownership. Only on 22.06.2009 such application came to be filed and by that time the trap was already over on 06.06.2009. Apart from this, in the course of cross- examination of prosecution witnesses some documents are produced. Ex.D.2 dated 22.06.2009 show that PW4 Nagaraj had given application to the AEE on 22.06.2009, on behalf of Smt.B.R.Jayalakshmi, stating that he has given application on 22.06.2009 for obtaining water and drainage connection and it is mentioned that the BBMP has already written letter to KPTCL and Bengaluru Water Supply & Sewerage Board not to provide water and electricity connection to the construction of B.R.Jayalakshmi. Though the application is given in the name of B.R.Jayalakshmi, her signature is not found and it is signed by PW.4, though he was not having any authorization from her. Interestingly, this application is written by PW.6 Taranath on behalf of complainant. The cross- examination of PW.6 show that he was aware that there was objection for construction of the building in the said property by wife of Complainant, as high tension wire is passing there and even sanction plan has been withdrawn. Inspite of this knowledge, PW.6 who is also Public Servant working as Assistant Engineer in BBMP has written such application on behalf of PW.4, which is addressed 30 Spl.C.No.46/2010 to AEE of BBMP. PW6, though aware of complications in the construction in the property and Violation of the Rules, has written Ex.D.2 on the say of PW.4 to help him. This would prima facie show some collusion between PW4 and PW6 to act against the interest of BBMP. Apart from this in cross-examination of PW.4 the letter given to B.R.Jayalakshmi received by PW.4 is confronted and marked as Ex.D.1. This also show that for property standing in the name of B.R.Jayalakshmi, commencement certificate was not obtained for the building and this was within the knowledge of present complainant in 2008 itself. The office order passed against PW.6 by accused No.1, marked as Ex.D.3 show that the work of PW.6 were not satisfactory with regard to stopping of the illegal construction in property No.138 and PW.6 was directed to take action. Inspite of such office order issued, this PW.6 himself has written Ex.D.2 on 22.06.2009 subsequent to the trap on behalf of PW.4. The office memorandum dated 04.06.2009 signed by accused No.1 is produced at Ex.D.4. This clearly show that action was contemplated by accused No.1 on illegal construction in several sites including property No.138 of Smt. Jayalakshmi coming under Rajajinagar Sub-division. On 04.06.2009 this Office memorandum is issued by accused No.1 and on 06.06.2009 the complainant gave complaint against accused Nos.1 and 2 before Lokayukta Police. Even note sheets of BBMP which contains several notes submitted 31 Spl.C.No.46/2010 by PW6 and accused No.1 and also the notes made by PW7 show that construction in property No.138 was objected as high tension wire was passing in the said property and action was taken and construction was asked to be stopped and this was going on from August 2008 and PW6, himself has reported that he has taken action to stop illegal construction in property No.138. The very same PW.6 has written Ex.D.2 on behalf of PW.4 which show that he was acting against the interest of BBMP in collusion with PW 4.
31. On looking to the entire records, it is clear that as on 06.06.2009 there was no work of the complainant or his wife was pending with accused Nos.1 and 2. The road cutting permission application is given on 22.06.2009 that is after the trap. Accused No.1 was taking action against illegal construction in Property No.138, on which PW4 was claiming right. There is no evidence before the court to show that complainant had given application for road cutting permission and then he approached accused Nos.1 and 2 to get his work done and they have demanded the bribe amount. Apart from this, Exs.D.1 to D.5 and Ex.P.14 clearly show that construction in Property No.138 was not legal as high tension wire was passing in that property. On 04.06.2009 itself the accused No.1 had passed office memorandum as per Ex.D.4 for removing the illegal construction in property No.138. The BBMP note sheets at Ex.D.5 also show that accused No.1 was watching the action 32 Spl.C.No.46/2010 taken against illegal construction started in Property No.138 and as accused No.1 was taking serious action, as could be seen from Ex.D.1 and D.3 to D.5, the complainant appears to have given Ex.P.10 complaint to put pressure against taking action on his construction, though his work was not pending with accused No.1 and 2 and there was no occasion to demand the bribe as alleged. .
32. Coming to the acceptance of tainted notes, at the time of trap, accused No.2 is said to have received the tainted notes from PW4 and thereafter signal was given and Lokayukta Police Inspector and his team surrounded the accused No.2 and his hand wash was done and the tainted notes are said to have been found in his pant pocket and it was recovered. PW.3 who is a shadow witness and PW.4 complainant have also stated about this incident in their evidence. However the place in which this incident took place is differently stated by PWs3 and 4. PW.3 has stated that in parking area accused No.2 came and complainant met him and accused No.2, by stating that accused No.1 asked him to bring the amount, has received the amount from PW4. PW.4 has stated that himself and PW.3 were waiting outside the BBMP office and within 10-15 minutes accused came there and asked whether the money was brought and then he gave tainted notes. In his cross- examination PW4 has admitted that office of accused No.2 is in Kamalanagar, ward No.16 and has stated that accused No.2 has 33 Spl.C.No.46/2010 received the amount in entrance and he has not gone inside the Rajajinagar office. Therefore, the place at which they were waiting for accused No.2 itself cannot be ascertained as PW.3 has stated that they were waiting in the parking area and they were infront of BBMP office and two wheeler of accused No.2 was parked in the main road. Similarly PW.5 another panch witness who is not actually shadow witness has stated that in the portico PW4 gave amount to accused No.2. Therefore, at which place amount is received by accused No.2 is not clear and where complainant and accused No.2 met each other is also not clear.
33. Moreover, trap team went to Rajajinagar office of BBMP which is not the office of accused No.2. Admittedly, accused No.2 is Work Inspector working in Ward No.16, Kamalanagar. Admittedly, when trap team went to Rajajinagar office between 5.30 to 6.00 p.m. the office hours of BBMP was over and accused No.1 was not there. It is not the office of accused No.2. It is not the case of the prosecution that accused No.2 had informed the complainant to come to Rajajinagar office to give the tainted notes at about 6 p.m. on 06.06.2009. No where in the complaint or in the pre-trap mahazar or in the alleged conversation had between the complainant and accused No.2 or with accused No.1 time, date and place of receiving the amount is fixed. How the trap team anticipated the arrival of accused No.2 to the Rajajinagar office 34 Spl.C.No.46/2010 between 5.30 to 6.15 p.m. on 06.06.2009 itself is not clear. Moreover, the witnesses have clearly stated that after coming near BBMP office, Rajajinagar, they have not entered the office and they were standing outside and they waited for accused No.2. There is no record before the court to show that there was communication between the trap team and accused No.2 to fix date, place and time of receiving bribe by accused No.2. There is no material before the court to show that accused No.2 with some official work, was supposed to come to BBMP office Rajaji Nagar at the time of closing from his office in Kamalanagar or that the trap team was aware of his arrival to Rajajinagar office. Admittedly, as accused No.2 was working in Kamala Nagar office it was natural for the trap team to go to Kamalanagar office if the tainted notes were to be given to accused No.2 or if it is to be given to accused No.1 then trap team was to come to Rajajinagar office. It is not stated that the bribe amount was to be given in the hands of accused No.1. Therefore, unless there was some communication between the trap team and the accused No.2, there was no occasion for this trap team to come straightaway to Rajajinagar Sub-division office that too at the time of closing of the office and then complainant and shadow witness waiting outside the BBMP office for accused No.2. This entire incident narrated in the prosecution case, raises serious doubt about genuine trap of accused No.2. As accused No.2 was not 35 Spl.C.No.46/2010 working in Rajajinagar office, the arrival of accused No.2 infront of BBMP office in Rajajinagar may be only a co-incidence and trap might not have planned in anticipation of co-incidence.
34. Under such circumstances, based on evidence of PWs 3 to 5 and 8, the accused No.2 accepting Rs.25,000/- as bribe amount on behalf of Accused No.1 as stated in the prosecution case does not get established. As presence of accused No.2, Rajajinagar office of the BBMP at the time of this trap itself is doubtful, acceptance of tainted amount by accused No.2 at the place where the trap is said to have taken place is not established. The tainted notes are said to have been recovered from the accused. It is also stated that the hand wash of accused has turned to pink colour. With regard to accused No.1, there is no case of acceptance or recovery of amount from him. With regard to accused No.2, very presence of accused No.2 at the spot is doubtful and the evidence of PW.3, 4 and 5 does not prove the acceptance of the bribe amount by the accused and its recovery from the accused. Moreover, as no work of the complainant was pending before the accused and demand of bribe amount from the accused is not proved even if acceptance and recovery are proved, the offence under Prevention of Corruption Act will not be established. Though there is presumption under Section 20 of the P.C. Act with regard to motive or reward as appearing in Section 7 of the Act, such 36 Spl.C.No.46/2010 presumption can be drawn only when demand and acceptance of the illegal gratification or remuneration is proved. When demand by accused is not proved, presumption under Section 20 cannot be raised.
35. For all these reasons, prosecution has utterly failed to prove that accused Nos. 1 and 2 have demanded illegal gratification and accused No.1 has accepted the illegal gratification on behalf of accused No.2 from the complainant and both the accused have thereby committed the offence under Section 7 of the Prevention of Corruption Act. Similarly, any criminal misconduct of accused by receiving any pecuniary advantage without any public interest is also not made out. Therefore, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and accused Nos.1 to 3 are entitled for acquittal. Accordingly, points Nos.2 and 3 are answered in the Negative.
36. POINT No.4:- For the discussion and findings on Point Nos.1 to 3, accused Nos. 1 & 2 are to be acquitted. Hence, following order is passed:
ORDER Accused Nos. 1 & 2 are found not guilty.Acting u/s 235(1) of Cr.P.C. accused Nos. 1
& 2 are acquitted from the charges levelled 37 Spl.C.No.46/2010 against them for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused persons and their sureties stands cancelled.
MO.3 Cash is ordered to be confiscated to the State after the expiry of the appeal period.
MO-2 metal seal is ordered to be returned to the Karnataka Lokayukta police after the expiry of appeal period.
MOs.1, 4 to 13 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 23rd day of April 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.38 Spl.C.No.46/2010
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Bharat Lal Meena PW.2 G.Siddagangaiah PW.3 P.B.Manjunath PW.4 T.Nagaraj PW.5 R.Nagaraj PW.6 K.B.Taranath PW.7 Gurunath PW.8 Irshad Ahmed Khan
List of documents exhibited for the prosecution:
Ex.P.1 Sanction orders of A.2 P.1 (a) Signature of PW.1 Ex.P.2 Sanction order of A.1 P.2 (a) Signature of PW.2 Ex.P.3 Sheet containing number of Currency notes P.3 (a) Signature of PW.3 P.3 (b) Signature of PW.5 Ex.P.4 Pre-trap mahazar P.4 (a) Signature of PW.3 Ex.P.5 Trap mahazar P.5(a) Signature of PW.3 P.5(b) Signature of PW.4 P.5(c) Signature of PW.5 P.5(d) Signature of PW.8 Ex.P.6 Sample seal P.6 (a) Signature of PW.3 P.6 (b) Signature of PW.8 Ex.P.7 cassette seizure mahazar P.7 (a) Signature of PW.3 P.7 (b) Signature of PW.4 P.7 (c) Signature of PW.8 Ex.P.8 Transcription of recordings in CD 39 Spl.C.No.46/2010 P.8 (a) Signature of PW.3 P.8 (b) Signature of PW.8 Ex.P.9 Transcription of recordings in voice recorder P.9 (a) Signature of PW3 P.9 (b) Signature of PW8 Ex.P.10 Complaint P.10 (a) & (b) Signature of PW.4 and 8 Ex.P.11 Acknowledgment seal P.11 (a) Signature of PW.5 P.11 (b) Signature of PW.8 Ex.P.12 Attendance register P.12 (a) Signature of PW.8 Ex.P.13 Report of PW.7 P.13 (a) Signature of PW.7 Ex.P.14 Work details of accused No.1 P.14 (a) Signature of PW7 Ex.P.15 Copy of Road cutting register P.15 (a) Signature of PW.7 Ex.P.16 FIR P.16 (a) Signature of PW.8 Ex.P.17 Transcription of recordings in CD P.17 (a) Signature of PW.8 Ex.P.18 to P.22 Photographs of Pre-trap proceedings Ex.P.23 Statement of Accused No.1 P.23 (a) Signature of PW8 Ex.P.24 Copies of documents (Page No.14 to 22) Ex.P.25 to P.29 Photographs of trap proceedings Ex.P.30 Chemical Examination report Ex.P.31 Sketch given by Enineer Ex.P.32 Work details of accused No.2 Ex.P.33 Service details of accused No.1 Ex.P.34 Service details of accused No.2 Ex.P.35 Copy of B register extract Evidence adduced on behalf of the defence : - Nil - 40 Spl.C.No.46/2010 Documents marked on behalf of the defence:
Ex.D.1 : Copy of notice given to Smt. B.R.Jayalakshmi Ex.D.2 : Copy of application Ex.D.3 : Copy of Office Order Ex.D.4 : Office Memorandum dated 04.06.2009 Ex.D.5 : Copy of notes sheet Material Objects marked by Prosecution :
MO-1 Pant
MO-1 (a) Pant cover
MO-2 Seal
MO-3 Cash of Rs.25,000/-
MO-3(a) Cover
MOs-4 to 10 Bottles
MOs-11 to 13 CDs
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
41 Spl.C.No.46/2010
Orders pronounced in the open Court
vide separate Judgment :
ORDER
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.