Bangalore District Court
The State By Police vs K.Venkataswamy on 6 September, 2017
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 6th day of September 2017
Spl. C.C.No.154/2012
COMPLAINANT The State by Police
Inspector, Police wing,
City Division, Karnataka
Lokayuktha, Bangalore.
(Rep by Spl.Public
Prosecutor)
-Vs-
ACCUSED K.Venkataswamy,
Police Sub-Inspector,
Kadugodi Police station,
Bengaluru.
(By Advocate- Sri.
M.Subramanya )
1. Nature of Offence Offence punishable
under Sec.7, 13(1) (d)
r/w13 (2) of the
Prevention of Corruption
Act, 1988.
2 Spl.C.C.154//2012
2. Date of
Commission
30-01-2012
of offence
3. Date of First
Information Report 30-01-2012
4. Date of arrest
06-06-2012
5. Date of
commencement of 30-11-2016
recording of
evidence
6. Date of 30-06-2017
closing of evidence
7. Date of
06-09-2017
pronouncement of
Judgment
8. Result of the case The accused is acquitted
under section 235(1) of
Cr.P.C. of the offence
punishable under
section 7, 13(1) (d) r/w
13(2) of Prevention of
Corruption Act, 1988.
3 Spl.C.C.154//2012
JUDGMENT
The accused is charge sheeted for the alleged offence punishable under Sections 7, 13(1) (d) r/w Sec.13 (2) of the Prevention of Corruption Act, 1988.
2. The prosecution case is that:
The complainant-N.Deepak being a resident of Bellathur village, was doing business of supplying building materials. The accused was then working as PSI, Kadugodi Police Station, Bangalore. A criminal case was registered in Kadugodi Police station , Bangalore, in Crime No166/2011 against CW1-N.Deepak, CW2- Arun Kumar & others, for the offence punishable u/s 341, 323, 325, 506 r/w 34 of IPC on the basis of the complaint of one Irfan. The accused demanded Rs.1,00,000/- from the complainant to drop his name & his friend-Arun Kumar-(CW2) from the charge sheet. After negotiation, the bribe amount was reduced to Rs.40,000/-, payable in two installments. The complainant has agreed to pay the first installment of Rs.20,000/- on 30.01.2012 & second installment on 01.02.2012. Since the complainant was not willing to pay the bribe amount, on 30.01.2012, at 1.00 p.m., he presented the written information as per Ex.P1, before CW18-T.Sanjeevarayappa, 4 Spl.C.C.154//2012 Police Inspector, Karnataka Lokayuktha, Bangalore, who arranged for the trap. The complainant has produced the Digital Voice Recorder containing the recorded conversation along with the complaint.
3. CW3-Badraiah & CW4-Smt.Parvathamma-the employees of Mines & Geology Department were secured as witnesses for the trap. The complainant produced 40 currency notes denomination of Rs.500-00 (Rs.20,000/-). The serial numbers of the currency notes were recorded in a white sheet as per Ex.P6. The said currency notes were smeared with phenolphthalein powder. CW4- Smt.Parvathamma after verifying & counting the said currency notes placed it in the left side shirt pocket of the complainant. Both the hand fingers of CW4 were made to dip in sodium carbonate solution. The said solution becomes pink colour. CW18 has demonstrated the chemical reaction of the phenolphthalein powder when comes into contact with sodium carbonate solution. The Digital Voice Recorder produced along with the complaint was played in the presence of the witnesses. The contents of the voice recorder were converted to CD & transcript into writing. The complainant was instructed to approach the accused, speak with him about the work and to give the amount only on 5 Spl.C.C.154//2012 demand. He was further instructed to give signal by wiping his hair through his right hand if the accused received the amount. Button camera was given to the complainant with an instruction to switch it on while going to the accused to give money and to record the conversation/scene. CW2- Arun Kumar & CW3-Badraiah, were instructed to follow the complainant and to observe what transpires between the complainant & the accused. The Entrustment Mahazar was prepared as per Ex.P2 and obtained the signatures of the witnesses.
4. On 30.1.2012, at about 3.30 p.m., CW18 along with his Trap Team Members, complainant & two panch witnesses left for Kadugodi Police Station in a Government vehicle. They reached the spot at about 4.15 p.m. The vehicle was parked nearby Kadugodi Police station. The complainant, CW2-Arun Kumar & CW3-Badraiah, went inside the Kadugodi Police Station. The I.O along with other Trap Team Members, were standing outside the Kadugodi Police Station by hiding themselves waiting for the signal from the complainant. At about 5.10 p.m., complainant came out of the Kadugodi Police Station and gave pre- instructed signal, whereupon the raid party rushed to the place where the complainant was standing. The 6 Spl.C.C.154//2012 complainant led the raid party to the chamber of the accused and pointed out the accused by saying that he is the person who demanded & accepted the bribe amount of Rs.20,000/-. CW18 has disclosed his identity, informed the purpose of visit & apprehended the accused. On an enquiry the accused disclosed his name, designation & address. Both the hand fingers of the accused were made to dip in the sodium carbonate solution. The right hand wash solution becomes pink colour. The left hand wash solution has not turned to any colour. 40 tainted currency notes denomination of Rs.500-00 (Rs.20,000/-) marked at MO1 was recovered from the accused. The said tainted currency notes were verified and tallied with the currency notes sheet. The documents relating to Crime No.166/2011 of Kadugodi Police Station, Station House Diary dated 22.12.2011 & 30.01.2012 and PSR Book dated 7.1.2011 were seized. Spot sketch showing the scene of offence was prepared as per Ex.P10. The accused was brought to the Lokayuktha Police Station. The uniform pant of the accused was seized. The Digital Voice Recorder & button camera and the CD containing the conversation of the complainant with the accused recorded in the voice recorder produced along with the complaint, was played in the presence of the witnesses and CW5-N.Mahesh, Police Inspector of Kadugodi Police 7 Spl.C.C.154//2012 Station. CW5 has identified the accused & his voice and submitted a Report as per Ex.P11. The entire trap proceedings were video-graphed. The accused gave his explanation in writing about he being in possession of the tainted currency notes as per Ex.P13. All the seized articles were sealed with metal seal by using the English letter 'P' and handed over the metal seal to CW4-Smt.Parvathamma and obtained Acknowledgment. Trap Mahazar was prepared as per Ex.P3 and obtained the signatures of the witnesses. CW-18 has recorded the statement of CW1, CW2 & CW3 and incorporated the same in the Trap Mahazar. The I.O has also recorded the statement of the other witnesses the I.O has obtained the spot sketch (Ex.P16), service particulars of the accused (Ex.P17), call details of the mobile phone of the accused & Chemical Examination Report(Ex.P16). The I.O after completion of the investigation sent a Final Report to the Competent Authority seeking for sanction to prosecute the accused. After receiving the Sanction Order-Ex.P8 from the Competent Authority, on 6.6.2012, the I.O has filed the charge sheet against the accused for the offence punishable u/s 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988.
8 Spl.C.C.154//2012
5. My Predecessor-in-Office took cognizance of the offence. In pursuance of the summons, the accused appeared before the court. The accused is enlarged on bail. After hearing, the charge was framed for the offence punishable under Sections 7, 13(1) (d) r/w13 (2) of the Prevention of Corruption Act, 1988. The Charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
6. During the trial, the prosecution has examined in all 6 witnesses as PWs-1 to 6 and got marked 19 documents as Ex.P-1 to Ex.P-19 and 12 Material Objects as MOs-1 to 12. The accused was examined under section 313 of Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. The accused denied all the incriminating evidence available against him. The accused has not chosen to lead any defense evidence. However during the cross-examination of prosecution witnesses, two documents were marked on behalf of the accused as Ex.D1 & D2. I have heard the arguments and perused the records.
7. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
9 Spl.C.C.154//2012
1. Whether the prosecution proves beyond all reasonable doubt that the accused being the public servant, working as Police Sub-Inspector, Kadugodi Police station, on 30-01-2012 at about 5.10 p.m., demanded and accepted illegal gratification of Rs.20,000/- being the first installment from the complainant- Deepak for showing an official favour in the matter of dropping his name and his friend Arun Kumar-
CW2 from the charge sheet in Crime No.166/2011 of Kadugodi Police Station, and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused being the public servant, working as Police Sub-Inspector, Kadugodi Police station, on 30-01-2012 at about 5.10 p.m., by abusing his position as public servant and by corrupt or illegal means and without public interest obtained Rs.20,000/- being the first instalment of bribe from the complainant-Deepak as pecuniary advantage and thereby committed Criminal mis- conduct punishable under section 13(1)(d) r/w. section 13(2) of the Prevention of Corruption Act 1988?
3. What order?
[
9. My answer to the above points is as under:
10 Spl.C.C.154//2012
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER
for the following:
REASONS
8. Point No.1 and 2: For the sake of convenience
and to avoid repetition of facts, I have taken both the points together for consideration.
9. The prosecution has examined CW1-N.Deepak as PW1. PW1 is the complainant. PW1 in his evidence has deposed that, he is doing business of supplying building materials. CW2-Arun Kumar is his friend. During the month of October/November 2011, public had physically assaulted one Irfan, who was misbehaving with his neighbouring girl. He and CW2-Arun Kumar had pacified the matter. Irfan has lodged the police complaint before Kadugodi Police Station, against CW2-Arun Kumar & him. In pursuance of the said complaint, FIR was registered. They were summoned to Kadugodi Police Station. They met the accused and narrated the real fact. The accused told him to get the matter settled before the Court. On 20.07.2012, once again they met the accused in Kadugodi Police Station and requested him to settle the matter, and they are ready to bear 11 Spl.C.C.154//2012 medical expenses of Irfan. The accused told them to get the matter settled before the Court as the charge sheet has already been filed. PW1 further deposed that, as he was misguided by his friends, he approached the Lokayuktha Police. At the instance of CW18, he gave the written information as per Ex.P1. CW18 has done some procedure in his chamber. He was told by CW18 to go to Kadugodi Police Station and place the tainted currency notes before the accused. He and CW2 met the accused in his chamber, and once again requested to settle the matter. By that time, there was a phone call to the accused. He put the tainted currency notes in the tray which was on the table of the accused, without the knowledge of the accused, while he was attending the phone call and came out of the chamber. Immediately, the raid party rushed to the spot. As per the instructions of CW18, the accused picked up the tainted currency notes from the tray and handed over to him. The hand wash of the accused was taken. Thereafter, they came back to Lokayuktha Police station wherein CW18 took his signature on some of the papers. He did not go through the contents of the said documents.
10. PW1 who is a material witness to prove the demand and acceptance of bribe by the accused has turned hostile.
12 Spl.C.C.154//2012 He has not supported the prosecution case. The Spl.P.P. cross-examined PW1 at length. But nothing useful to the case of the prosecution is elicited during the course of cross- examination. PW1 has denied all the suggestions put to him, except recording of his statement by the Magistrate u/s 164 of Cr.P.C.
11. During the course of cross-examination made on behalf of the accused, PW1 has stated that the amount of Rs.20,000/- produced before the Lokayuktha Inspector, was not a bribe, but towards the medical expenses of Irfan. Further he stated that, he voluntarily kept the tainted currency notes in the tray which was on the table of the accused.
12. The prosecution has examined CW2-Arun Kumar as PW2. PW2 is a friend of the complainant. According to the prosecution case, PW2 was all along present with the complainant right from the filing of the complaint till the time of trap; he has witnessed the incident, overheard the conversation between the complainant & the accused and seen the complainant giving the tainted currency notes to the accused. But PW2 deposed that during the month of January 2012, he had been to the house of Deepak. Deepak 13 Spl.C.C.154//2012 & he were standing in front of the house on the first floor. There was some galata in front of the house of Deepak. Deepak & he had pacified the matter. Thereafter, one Irfan had lodged the complaint before Kadugodi Police Station against Deepak, him & others. In pursuance of the complaint, FIR was registered. They had been summoned to Kadugodi Police Station and met the accused. The accused told them to settle the matter in the Court. As per the advice of one of the friends, Deepak had approached the Lokayuktha Police and lodged the complaint. Two days thereafter, again they went to Lokayuktha Police Station. Lokayuktha Inspector made them to sit outside, and thereafter obtained their signatures on some of the papers. After some time, Lokayuktha Inspector & his staff and Deepak went to Kadugodi Police Station, in a Government vehicle. He followed them in his own car. Deepak & he entered the Kadugodi Police Station, met the accused and requested him to drop their names from the case as they are ready to bear the medical expenses of Irfan. The accused pleaded his helplessness by saying that the case is already in the Court and told them to settle the matter in the Court itself. In the meantime, there was a phone call to the accused. Deepak kept the amount on the table of the accused while he was attending the phone call and came out 14 Spl.C.C.154//2012 of the chamber. Immediately Lokayuktha Police had rushed to the spot and apprehended the accused. At the instance of the Lokayuktha Inspector, the accused picked up the amount which was on his table and handed over to him. Thereafter, the hand wash of the accused was taken. The accused was brought to the Lokayuktha Police station. They were made to stand outside the Lokayuktha office. After some time, they were called inside and obtained signatures on some of the papers. PW2 further deposed that, the accused never demanded money from them for dropping their names from the criminal case.
13. PW2 who is a material witness to prove the demand and acceptance of bribe by the accused has turned hostile. He has not supported the prosecution case. The Spl.P.P. cross-examined PW2 at length. But nothing useful to the case of the prosecution is elicited during the course of cross-examination. PW2 has denied all the suggestions put to him, except recording of his statement by the Magistrate u/s 164 of Cr.P.C.
14. During the course of cross-examination made on behalf of the accused, PW2 has stated that the amount of Rs.20,000/- produced by PW1 before the Lokayuktha 15 Spl.C.C.154//2012 Inspector, was not a bribe, but towards the medical expenses of Irfan. Further he stated that, PW1 voluntarily kept the tainted currency notes in the tray which was on the table of the accused.
15. The prosecution has examined CW4-Parvathamma as PW3. PW3 is a co-panch witness. PW3 has deposed that in the month of January 2012, as per the instructions of her higher Officer, CW3-Badraiah and she appeared before CW18. She does not know who were present in the Lokayuktha Police station. She has acted as panch witnesses in so many trap cases of Lokayuktha Police, she does not remember the facts of the case. She has further deposed that, somebody had placed the tainted currency notes in the pocket of the complainant. Her hand wash was not taken in the Lokayuktha Police station. The Lokayuktha Inspector has not taken her to any place. Lokayuktha Inspector has drawn Mahazar and obtained her signature on some of the documents and sent her to office. Metal seal was not handed over to her and obtained her signature. She had seen the accused in Kadugodi Police station. She had seen the Investigating Officer recovering the tainted currency notes from the accused.
16 Spl.C.C.154//2012
16. PW3 has turned hostile. She has not supported the prosecution case. The learned Spl.P.P. cross-examined her at length. But nothing useful to the case of the prosecution is elicited during the course of cross- examination.
17. During the cross-examination made on behalf of the accused, PW3 has admitted that she acted as witness in many trap cases conducted by the Lokayuktha Police. Further she admits that she signed the Trap Mahazar without going through its contents. The true copy of the deposition given by her in Departmental Enquiry Proceedings against the accused in No.ACP/DE/11/2014 is marked as ExD1.
18. The prosecution has examined CW7- M.C.Narayanagowda, the then Additional Commissioner of Police (Administration), Bangalore City, is examined as PW4. PW4 is the Sanctioning Authority who accorded sanction to prosecute the accused. PW4 has deposed that, after going through all the relevant records, he had been satisfied about existence of prima facie case to accord sanction to prosecute the accused. He being the Competent Authority to appoint and dismiss the accused from service, accorded sanction to 17 Spl.C.C.154//2012 prosecute the accused. The Sanction Order dated 8.5.2012 is produced and marked as Ex.P8.
19. The learned Counsel appearing for the accused has cross-examined PW4 at length. During the cross- examination PW4 has admitted that he did not come across the papers in Crime No.166/2011. He does not know that the accused being the Investigating Officer in Crime No.166/2011, filed the charge sheet against CW1 & 2 on 13.1.2012. He further admits that the statement given by the accused immediately after the trap was not sent to him along with the Requisition letter for issue of Sanction Order.
20. The prosecution has examined CW3-Badraiah as PW5. PW5 is the shadow witness. PW5 has deposed that, on 30.1.2012, PW1 & he went to the Lokayuktha Police station and met CW18. PW1 & 2 and Lokayuktha staff were present. The contents of the complaint were made known to them. PW1 produced 40 currency notes denomination of Rs.400/-. The said currency notes were smeared with phenolphthalein powder. Before that the serial number of the currency notes was recorded in a white sheet. PW3- Smt.Parvathamma counted the tainted currency notes and placed it in the left side shirt pocket of the complainant. Her 18 Spl.C.C.154//2012 hand wash was taken. The said solution becomes pink colour. Complainant was instructed by the Lokayuktha Inspector to approach the accused, speak with him about the work, to give the tainted currency notes only on demand and to give signal by wiping his hair if the accused received the tainted currency notes. He was instructed to follow the complainant and to observe what transpires between the complainant & accused. Button camera was given to the complainant. Pre-Trap Mahazar as per Ex.P2 was prepared and obtained their signatures. At about 3.45 p.m. Lokayuktha Inspector, his staff, complainant & his friend, PW3 and he left for Kadugodi Police station in the Government vehicle. PWs.1 & 2 went inside the chamber of the accused. He was standing nearby the door of the chamber. PWs-1 & 2 spoke with the accused in Telugu and placed the amount in the tray kept on the table of the accused. He is not acquainted with the Telugu language. He could not understand the conversation that took place between the accused and PWs-1 & 2. The accused took the tainted currency notes from the tray and kept it in the hip pocket. Thereafter, the Lokayuktha Inspector rushed to the spot and apprehended the accused. On being questioned, the accused removed the tainted currency notes from his pant pocket and produced it before the Lokayuktha 19 Spl.C.C.154//2012 Inspector. The said currency notes were tallied with the currency notes sheet and same was seized. Thereafter, both hand fingers were made to dip in sodium carbonate solution. The said solution becomes pink colour. The documents were seized. The explanation of the accused in writing was obtained. Button camera and Digital Voice Recorder given to the complainant at the time of trap was played, contents of it were converted to CD and transcript into writing. The entire proceedings were video-graphed. His statement was recorded. Trap Mahazar as per Ex.P3 was prepared and obtained their signatures. All the seized articles were sealed with Metal Seal by using the English letter 'P' and Metal Seal was handed over to CW3-Smt.Parvathamma.
21. PW5 has turned hostile in respect of the fact that hand wash of the accused was taken first and thereafter tainted currency notes were recovered. The Learned Spl.P.P. has cross-examined PW5 regarding this aspect.
22. During the course of cross-examination made on behalf of the accused, PW5 has admitted that, he has acted as Panch witness in one more Lokayuktha trap case. The true copy of deposition given by PW5 in Departmental Enquiry conducted against the accused in respect of the same offence is marked as Ex.D2.
20 Spl.C.C.154//2012
23. The prosecution has examined CW18- T.Sanjeevarayappa as PW6. PW6 is the Investigating Officer. PW6 has deposed about registering of complaint, securing of two Government officials, preparing of Entrustment Mahazar, laying of trap against the accused, turning of resultant right hand wash of the accused to pink colour, recovery of the tainted currency notes from the accused through CW3-Badraiah, preparing of the Spot Sketch, seizure of documents relating to Crime No.166/2011, Station House Diary, PSR Book, recording of the statement of the witnesses, obtaining the explanation of the accused in writing, playing of Button Camera & Digital Voice Recorder in the presence of the witnesses, converting the contents of it to CD & transcript into writing, identification of the voice of the accused through CW5, receiving of Chemical Examination Report from FSL, obtaining service particulars of the accused & mobile call details of the accused, obtaining Sanction Order from the Competent Authority and submitting charge sheet before the Court.
24. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring 21 Spl.C.C.154//2012 home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
25. In the present case, PW1 who is the best person to say regarding demand of illegal gratification and acceptance of the same by the accused for showing an official favour has turned hostile. He has not supported the prosecution case. PW2-a friend of the complainant who was present all along with the complainant, right from the filing of the complaint till the trap, has also turned hostile and not supported the prosecution case. From the evidence of PWs-1 & 2, it is clear that the accused has not demanded bribe amount, but PW1 has voluntarily kept the money in the tray which was on the table of the accused without his knowledge while he was attending phone call.
22 Spl.C.C.154//2012
26. PW5 (shadow witness) being an independent witness has not played his role as instructed and in the manner as required in law. The impartial shadow witness to the trap proceedings is taken with an object to prove the demand and acceptance of bribe by independent corroboration. According to PW5, complainant-PW1 & his friend Arun Kumar-PW2 alone could go and meet the accused in his chamber and he stood nearby the chamber door of the accused. Since he was not acquainted with the Telugu language, he could not understand the conversation that took place between PWs-1 & 2 and the accused. But he saw PW1 keeping money in the tray which was on the table of the accused. The evidence of PW5 will not be useful for the prosecution to prove the theory of demand of illegal gratification by the accused and acceptance of the same after demand. Absolutely there is no evidence to prove the theory of demand and acceptance of bribe by the accused.
27. The evidence placed on record goes to show that the accused being the Investigating Officer in Crime No.166/2011, has filed the charge sheet before the Court on 13.01.2012 itself i.e, 17 days prior to the date of filing of the complaint. As on the date of the complaint, there was no work of the complainant pending with the accused. Under 23 Spl.C.C.154//2012 the circumstances, the accused demanding bribe from the complainant for dropping his name & his friend Arun Kumar-CW2 in Crime No.166/2011, legally & factually does not arise.
28. PW3-Parvathamma & PW5-Badraiah are said to be independent witnesses. In so far as PWs-3 & 5 are concerned, they categorically admitted in their cross- examination that they had earlier joined 4-5 such raids for trap and they are well known to Lokayuktha Police. Under the circumstances, they cannot be called as independent witnesses. Therefore, it is not safe to rely on the evidence of PWs-3 & 5.
29. Further, evidence of PW1, 2, 3 & 5 is contrary to each other with regard to recovery of currency notes. According to PWs-1 & 2, tainted currency notes were recovered from the tray which was kept on the table of the accused. According to PW3, tainted currency notes were recovered from the right side pant pocket of the accused. According to PW5, tainted currency notes were recovered from hip pocket of the accused. It creates a doubt regarding the prosecution case.
24 Spl.C.C.154//2012
30. The materials on record reveal that, on 30.01.2012 the complainant gave written information before the Lokayuktha Police Inspector. On 25.1.2012, the complainant approached the Lokayuktha Police Inspector for the first time and orally informed about the demand of bribe. During the said visit, the Lokayuktha Inspector in order to get concrete material to register the case has given voice recorder to the complainant with an instruction to record the conversation. It is well settled that giving of voice recorder to record the conversation with respect to demand of bribe, does not constitute preliminary enquiry, rather it amounts to collecting the evidence against the person accused of and the entire investigation gets vitiated.
31. It is well settled that electronic record like CD, VCD, pen drive, etc. which contains the statement which is sought to be given as secondary evidence has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine is supported by the decision of Hon'ble Supreme Court of Anwar P.V -v- P.K.Basheer; (2014) 10 Supreme Court Cases 473.
25 Spl.C.C.154//2012
32. In the present case, MO-5 & 11 are the CD said to have contained the conversation, MO-6 & 12 are the CD containing the video of the pre-trap & trap proceedings, which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MO-5, 6 11 & 12 cannot be admitted in evidence.
33. It is well settled that mere recovery of tainted currency notes and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused unless there is corroboration of testimony of complainant regarding demand and acceptance of bribe by the accused. In the present case, demand and acceptance of illegal gratification by the accused has not been established. Where the prosecution's allegation of demand of bribe is false, the allegation of payment of bribe and recovery of the same from the accused must be viewed with suspicion. When there is doubt regarding the prosecution case, benefit of doubt should be given to the accused.
26 Spl.C.C.154//2012
34. The prosecution has miserably failed to prove beyond all reasonable doubt that the accused has committed the offence punishable u/s 7, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988. Hence, I answer Point No.1 & 2 in the Negative.
35. POINT NO.3: In the result, I proceed to pass the following:
ORDER The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused stands cancelled.
MO1 - Currency notes are ordered to be confiscated to the State after expiry of appeal period.
MO2- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
27 Spl.C.C.154//2012 Mos-3 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the judgment writer directly on the computer, after transcription, corrected by me and then pronounced by me in the open court on this the 6th day of September 2017) [ (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Deepak N. PW2 Arun Kumar PW3 Smt.S.Parvathamma PW4 M.C.Narayanagowda PW5 Bhadraiah PW6 Y.Sanjeevarayappa
List of documents marked on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW6
Ex.P2 Pre-Trap Mahazar
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW2
28 Spl.C.C.154//2012
Ex.P2(c) Signature of PW3
Ex.P2(d) Signature of PW5
Ex.P2(e) Signature of PW6
Ex.P3 Trap mahazar
Ex.P3(a) Signature of PW1
Ex.P3(b) Signature of PW2
Ex.P3c) Signature of PW3
Ex.P3d) Signature of PW5
Ex.P3e) Signature of PW6
Ex.P.4 Statement u/s 164 of Cr.P.C
Ex.P.4(a) Signature of PW1
Ex.P.5 Statement u/s 164 of Cr.P.C
Ex.P.5(a) Signature of PW2
Ex.P.6 Currency notes sheet
Ex.P6(a) Signature of PW3
Ex.P6(b) Signature of PW5
Ex.P6(c) Signature of PW5
Ex.P6(d) Signature of PW6
Ex.P.7 Acknowledgment for handing over
the metal seal
Ex.P.7(a) Signature of PW3
Ex.P.8 Sanction Order
Ex.P8(a) Signature of PW4
Ex.P9 Transcription sheet of CD
containing the conversation
between the complainant &
accused.
Ex.P9(a) Signature of PW6
Ex.P10 Spot sketch
Ex.P10(a) Signature of PW6
Ex.P.11 Report given by PW5
Ex.P.12 Transcription sheet of CD
containing the scene &
conversation recorded during Trap.
Ex.P12(a) Signature of PW6
Ex.P13 Written statement of accused
29 Spl.C.C.154//2012
Ex.P13(a) Signature of accused
Ex.P14 Sample seal sheet
Ex.P15 Chemical Examination report
Ex.P16 Spot sketch
Ex.P17 Service particulars of the accused
Ex.P18 Mobile phone call details of the
accused
Ex.P19 Attested copy of documents from
Kadugodi Police station
List of material objects marked on behalf of the prosecution:
MO.1 Currency notes Article 8 Rs.20,000/-(Rs.500/- x 40) MO.2 Metal seal MO.3 Sample solution Article 1 MO.4 Hand wash solution of Article 2 CW4 MO.5 CD containing the Article 3 conversation MO.6 CD containing the contents Article 4 of videograph taken at the time of Entrustment Mahazar MO.7 Sample solution Article 5 MO.8 Right hand wash solution Article 6 of accused MO.9 Left hand wash solution of Article 7 accused MO.10 Uniform pant of accused Article 9 MO.11 CD containing the Article 10 conversation, scene recorded in button camera at the time of Trap. 30 Spl.C.C.154//2012 MO12 CD containing the contents Article 11 of video at the time of Trap
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
Ex.D1 copy of deposition in ACP/DE/11/14 Dated: 26.11.2015 Ex.D2 copy of deposition in ACP/DE/11/14 Dated: 2.7.2015 (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru 31 Spl.C.C.154//2012 Judgment pronounced in open court (vide separate orders) ORDER Accused present.
The accused is acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w.13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
Bail bond executed by the accused stands cancelled.
MO1 - Currency notes are ordered to be confiscated to the State after expiry of appeal period.
MO2- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
Mos-3 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru(CCH-77) Bengaluru