Bangalore District Court
The State Of Karnataka vs K.Ramakrishna on 28 November, 2018
1
Spl. S S No.186/2012
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: This the 28th day of November 2018
Spl. C.C.No.186/2012
COMPLAINANT: The State of Karnataka,Rep by Inspector
of Police,
Karnataka Lokayukta Police,
Bengaluru City Wing, Bengaluru.
(Rep.By Sri.S.P.Hubballi,
Public Prosecutor)
V/s
ACCUSED: K.Ramakrishna, Junior Engineer (V),
O/o.The E & M Section 15(1),
Bhadrappa Extension,
C-4 Sub-Division, BESCOM,
Kodigehalli, Bengaluru.
Residing at No.96, 3rd Main Road, Mico
Layout, J.C.Nagara, Mahalakshmi
Layout, Bengaluru.
(Rep by Sri. C.G.Sundar, Advocate)
1. Nature of Offences: Offences punishable under
2
Spl. S S No.186/2012
Sec.7,13(1)(d) R/w
Sec.13(2) of
Prevention of
Corruption
Act,1988.
2. Date of Commission 20-12-2011
of offence:
3. Date of First Information 21-12-2011
Report:
4. Date of Arrest: 21-12-2011
5. Date of Commencement 19-06-2018
Of recording of evidence:
6. Date of Closing of evidence: 09-11-2018
7. Date of Pronouncement of 28-11-2018
Judgment.
8. Result of the case: Accused is acquitted.
JUDGMENT
In this case, Police Inspector, Karnataka Lokayukta, Bengaluru City Division has filed charge sheet against the accused for the offence punishable under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The charges leveled against the accused are that: 3
Spl. S S No.186/2012 This accused being a public servant working as a Junior Engineer (V) in the office of C-4, Sub-Division, BESCOM situated at Kodigehalli, Bengaluru. On 09-11-2011 the complainant Madhusudhan has appeared before this accused in connection with conversion of electricity power supply given to the house of CW-4 K.Bhoopalan from single phase to three phase. At that time, this accused has demanded illegal gratification of Rs.2500/- from the complainant for shifting of electricity pole and conversion of electricity supply from single phase to 3 phase. The complainant was not interested to pay the bribe amount, so on 21-12-2011 he has filed complaint before the Lokayukta Police. After registering the case IO has conducted pre-trap proceedings in the presence of panch witnesses CW-2 & 3 and conducted the trap, trapped this accused for having demanded and accepted the illegal gratification of Rs.2500/- from the complainant for doing his official favour in the matter of CW-4. This accused being a public servant was not suppose to 4 Spl. S S No.186/2012 demand and accept any illegal gratification from the public. By doing so he has misused his position as a public servant and committed the criminal misconduct by accepting the bribe amount. Hence the Lokayukta Police have filed charge sheet against the accused for the offences punishable under Sec.7,13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.
3. After registering the case the IO investigated the matter and submitted charge sheet against the accused. After submitting the charge sheet, the presence of this accused was secured before the court by issuing summons. The accused appeared before this court through his counsel, copy of charge sheet was supplied to him U/s. 207 of Cr.P.C., and he was enlarged on bail.
4. Heard the Spl. Public Prosecutor and the counsel for the accused on hearing before the Charge. After hearing on HBC, after perusal of the charge sheet this court held that, there is a prima-facie case against the 5 Spl. S S No.186/2012 accused for having committed the offence punishable U/s. 7 and 13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
5. The charges against accused for the offence punishable under Sections 7, 13(1)(d) R/w. 13(2) of the Prevention of Corruption Act are read over and explained to him in the language known to him, for that, he pleaded not guilty and claims to be tried.
6. In all the prosecution has cited as many as 17 witnesses in the charge sheet. Out of them the prosecution has examined CW.1-Madhusudhan the complainant is examined as PW.2, CW.2- Lakshminarasimha Murthy and CW-3 Gajendra panch witnesses are examined as PW-3 & 6, CW-4-K.Bhoopalan, the customer of the complainant, who entrusted the electrical work to the complainant is examined as PW-4. CW-5 M.Suresh, the Asst. Executive Engineer under whose presence IO has seized the documents and conducted the 6 Spl. S S No.186/2012 voice testing of the accused is examined as PW-5. CW-10 R.Sridhara, the Retired-Director and Company Secretary, KPTCL, Bengaluru, who send the Sanction Order and Board Resolution to the Court is examined as PW-1. CW-17 V.Arun Kumar, Police Inspector, Karnataka Lokayukta and IO is examined as PW-7 and got marked Exs.P-1 to Ex.P-27 and MOs.1 to 12 are marked. Special Public Prosecutor submitted that, he has given up other witnesses and closed his side.
7. Statement of the accused Under Section 313 of Cr.P.C. is recorded and he denies the incriminating evidence against him. Enquired the accused about his defence evidence for that, he has submitted that, he has no defence evidence. His defence evidence is taken as nil and recording of evidence is closed.
8. Heard the arguments.
9. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses 7 Spl. S S No.186/2012 along with the documents exhibited in their evidence, the following points arise for consideration of this court:-
1. Whether the prosecution proves that, the sanction order obtained by it for prosecuting the accused is valid ?
2. Whether prosecution proves its case against this accused beyond all reasonable doubt that, this accused being a public servant, working as a Junior Engineer (V), Office of C-4. Sub-Division, BESCOM, Kodigehalli Village, on 09-11-2011 he has demanded illegal gratification of Rs.2500/-
from the complainant for doing his official favour to the complainant in conversion of electricity power supply given to the house of CW-4 K.Bhoopalan from single phase to three phase and committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Whether the prosecution proves its case against the accused beyond all reasonable doubt that, this accused being a public servant working as an Junior Engineer (V) in 8 Spl. S S No.186/2012 C-4 Sub- Division,BESCOM, Kodigehalli, by using his official position as a public servant on 21-12-2-11 he has demanded and accepted illegal gratification of Rs.2,500/- from the complainant for doing his official favour in connection with shifting of electricity pole and conversion of electricity power supply from single phase to three phase to the house of CW-4 and thereby misused his official position committed criminal misconduct punishable under Section 13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988?
4. What Order?
10. My findings on the above points are in the following 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 for the following...
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Spl. S S No.186/2012 REASONS
11. POINT No.1: Hereinafter considering the submissions of both the sides along with the evidence of PW-1 R.Sridhar and the documents marked at Ex.P-1 & 2 now the point remains for the consideration of this court is whether the sanction order obtained by the prosecution for prosecuting this accused is a valid sanction or not ?. In this case, learned counsel for the accused submitted before the court stating that, as per the Karnataka Electricity Board Act, the Board is the competent authority to issue the sanction order, but in this case, the PW-1 has signed that sanction order and sent it in his individual capacity, so it is not a valid sanction order. Further he has contended that, even assume for the sake of the court held that, the PW-1 has acted as a representative of the Board in sending sanction order. By looking into the charge sheet papers it indicates that, board has not applied its mind before issuance of sanction order. By considering the evidence 10 Spl. S S No.186/2012 of the IO, complainant and PW-1 R.Sridhar, Retired Director and Company Secretary of KPTCL, no work pertains to the complainant was pending with the accused as on the date of alleged trap, that itself indicates that the sanctioning authority has not applied its mind while issuing the sanction order, so it is invalid.
12. Contrary to this, learned Spl. PP submitted before the court stating that, before sending the sanction order by PW-1 to the ADGP, Lokayukta, he has placed all the charge sheet papers before the 82 nd Board Meeting held on 23-06-2012. In that meeting all the members have verified the said charge sheet papers and they revealed that, there is a prima-facie case against the accused to prosecute him for the offences alleged. Hence issuance of sanction order is necessary. On the basis of the resolution passed by the Board marked at Ex.P-2 and at the instance of the Board PW-1 sent the sanction order on the order of the Board, so his act is only a ministerial 11 Spl. S S No.186/2012 act and the sanction order is valid. Further has contended that, for issuance of sanction order board is not suppose to hold to pre-trial about the guilt or innocence of the accused. Board has to scrutinize all the charge sheet papers to its satisfaction stating as to whether there is a prima-facie case against the accused for prosecuting him for the offences alleged against him or not. In the resolution marked at Ex.P-2 Board has specifically stated about applying its mind and issuance of directions to the PW-1 for sending its sanction order along with the resolution, so it goes to show that, board has applied its mind properly before issuing sanction order. Hence, the sanction order is valid.
13. After considering the submissions of both the sides and after verifying the records it indicates that, before sending the sanction order by the PW-1 to the ADGP, he has placed all the charge sheet papers received by him from the ADGP in the 82 nd Board Meeting 12 Spl. S S No.186/2012 held on 23-06-2012. That, in Ex.P-2, Board has stated about the facts of prosecution case and the papers scrutinized by it for its satisfaction to issue sanction order. After verifying of the charge sheet papers and after its satisfaction the Board has resolved that, there is a prima-facie case against the accused to prosecute him for the offences alleged in t he charge sheet, so they resolved to issue sanction order and directed the MD, KPTCL/Director (Adm. And HR), KPTCL/Company Secretary, KPTCL is authorized to issue necessary prosecution sanction order on behalf of the Board. By considering that resolution it is clear that, it is the Board, hich has resolved to accord sanction order to prosecute the accused for the offences alleged against him as appearing in Ex.P-2. On the basis of said resolution PW-1 has issued sanction order marked at Ex.P-1. In that sanction order the brief facts of the allegations against the accused are narrated and about verifying of the charge sheet papers. On the basis of the resolution and 13 Spl. S S No.186/2012 on the basis of charge sheet papers he signed and sent that sanction order marked at Ex.P-1. In that sanction order he has specifically stated that, he has sent the same by putting his signature as per the orders of the board. This fact clearly indicates that, the act of PW-1 is only a ministerial act and he has not issued the sanction order in his individual capacity. By considering all these facts along with the opinion of the board appearing in its resolution marked at Ex.P-2, it is clear that, the sanction order issued by the board for prosecuting this accused for the offences alleged against him is a valid sanction order, as it fulfilled the requirements of Section 19 of Prevention of Corruption Act. Hence, this court answered Point No.1. in the affirmative.
14. Point No.2 and 3: For giving findings of this court on point No.2 and 3, common discussion of the oral and documentary evidence placed by the prosecution before the court are necessary, so these two points are taken up for common discussion.
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Spl. S S No.186/2012 It is the case of the prosecution that, this accused was working as a public servant as Junior Engineer (V) in the Office of C-4 Sub-dvision, BESCOM situated at Kodigehalli, Bengaluru. On 09-11-2011 the complainant PW-2 Madhusudhan has appeared before him in connection with conversion of electricity power given to the house of PW-4 K.Bhopalan from single phase to three phase. That that time, this accused has demanded illegal gratification of Rs.2500/- from the complainant for shifting of electric pole and conversion of electricity power supply by changing its phase. As the complainant was not interested to pay the bribe amount, on 20-11-2011 he had appeared before the Lokayukta Police and filed his complaint against accused as appearing in Ex.P-3. After registering the case, the Lokayukta Police have secured the presence of two panch witnesses namely PW-3 Lakshminarasimha Murthy and PW-6 Gajendra. In their presence the IO has conducted pre- trap mahazar as appearing in Ex.P-7 Thereafter the IO 15 Spl. S S No.186/2012 went along with the complainant, panchas and his staff to the office of this accused in the evening. After he went there, he sent PW-2 & 3 into that office with instructions stating that, the complainant should meet the accused, discuss with him about his pending work and to pay the bribe amount only on his demand and to give signal by wiping his face with hand kerchief and he has directed the PW-3 to be present with the complainant to observe the transactions taken place between the accused and complainant as a shadow witness. When they entered into that office, meet the accused and discussed about the pending work, at that time accused demanded the bribe amount, so the complainant gave it to him and give signal. Thereafter, this accused was trapped by the Lokayukta Police by conducting trap proceedings, seized bribe amount, drawn the trap- mahazar as per Ex.P-12. Brought the accused to their station and produced before the court after completion of his interrogation and fulfilling the conditions of arrest. 16
Spl. S S No.186/2012 Thereafter, the IO investigated into the matter, recording the statements of witnesses, send the seized articles to the FSL examination, obtained the reports and after completion of entire investigation he has submitted charge sheet before the court.
15. In this case the points remain for consideration of this court are whether this accused being a public servant has demanded and accepted the illegal gratification of Rs.2500/- from the complainant for doing his official favour in the matter of PW-4 as alleged by the prosecution or not are the facts to be considered before this court. For deciding this fact, considering the nature of work of this accused, pendency of work of complainant with the accused as on the date of trap and demand and acceptance of illegal gratification by this accused from the complainant are important. For deciding the fact of demand and acceptance of illegal gratification by this accused from the complainant the evidence of 17 Spl. S S No.186/2012 complainant PW-2 Madhusudhan and shadow witness PW-3 Lakshminarasimha Murthy are important.
16. In support of the case of prosecution, learned Spl. PP submitted before the court stating that, by considering the evidence of the prosecution witnesses examined before the court along with its case, it is clear that, the work pertains to the complainant was pending with this accused on the date of trap. For doing his official favour this accused has demanded and accepted the bribe amount from the complainant is proved. The said facts are fully narrated by the shadow witness PW-3 in his examination before the court. The complainant has also admitted the prosecution case about pending of his work with the accused and acceptance of bribe amount from him. However, for the reasons best known to the complainant, he has turned hostile with intention to help the accused, that itself is not sufficient to acquit the accused. Because the case of the prosecution is proved 18 Spl. S S No.186/2012 with the independent shadow witness PW-3 with regard to the other investigation done by the IO. Said facts are supported with the evidence of PW-4 to PW-6. The evidence of said witnesses are corroborated with the evidence of IO PW-7 Arunkumar.V, so the prosecution has proved its case beyond all reasonable doubt. Hence, he requested the court to convict the accused by awarding maximum sentence.
17. Contrary to this learned counsel for accused has submitted before the court that, merely because PW-3 to PW-7 have supported the prosecution case itself is not a ground to convict the accused. That, under Criminal Jurisprudence innocence is presumption and guilty is subject to proof. In Prevention of Corruption Act cases, the evidence of complainant and the shadow witnesses are more important than the evidence of other witnesses. If the evidence of said two witnesses are corroborate each other, then the accused can be 19 Spl. S S No.186/2012 convicted otherwise not.
18. Herein this case, in the chief examination of the complainant PW-2 he has denied the prosecution case about demand and acceptance of any bribe amount by the accused and filing of his complaint as per Ex.P-3. Further he denied the fact of conducting pre-trap mahazar and trap mahazar as appearing in Ex.P-7 and P-
11. The evidence of complainant PW-2 itself falsifies the prosecution case with regard to the allegations made against the accused. Though PW-3 is cited as a shadow witness, by considering his admissions in his cross- examination it goes to show that, he has not witnessed the demand and acceptance of bribe amount by this accused from the complainant. When this fact is not proved with cogent evidence, then the evidence of PW-3 holds no water.
19. It is true that, PW-4 K.Bhoopalan has supported 20 Spl. S S No.186/2012 the case of prosecution with regard to entrusting his electrical work to PW-2, but he pleaded ignorance about this case against the accused as alleged by the prosecution.
20. PW-5 M.Suresh, Executive Engineer has also not supported the prosecution case with regard to identifying the speech and video of this accused recorded in the CD and video. His evidence holds no water.
21. PW-6 Gajendra is another panch witness and his evidence is not of much important for deciding the guilt of the accused.
22. PW-7 Anilkumar.V is an IO, he has supported the prosecution case, but in his cross-examination he has admitted the faults on his part in conducting examinations and his admissions clearly goes to show that, there is no corroborate evidence against this 21 Spl. S S No.186/2012 accused for having committed any of the offences alleged against him. Since the evidence of the witnesses examined before the court did not make out the prosecution case for having committed the offences alleged against him, so the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt. Hence, he requested the court to acquit the accused.
23. In support of the case he relied on the following decisions....
1. 2015 SCC OnLine SC 814 (Satyanarayana Murthy Vs. Dist. Inspector of Police and another.
2. AIR 2016 Supreme Court 298 (Krishan Chander Vs. State of Delhi)
3. 2014 AIR SCW 5740 Supreme Court (M.R.Purushotham Vs. State of Karnataka)
4. (1972) 3 Supreme Court Cases 652 (Ram Prakash Arora Vs. State of Punjab)
5. 2012(2) KCCR 1157 (Hanumanthappa Vs. State of Karnataka)
6. 2012(1) KCCR 414 (R.Malani Vs. State of Karnataka) 22 Spl. S S No.186/2012
7. (2011) 2 Supreme Court Cases 1010 (State of Kerala and another Vs. C.P.Rao)
8. (2015) 1 Supreme Court Cases (Crl.) 24 (Anvar P.V. Vs. P.K.Basheer and Others)
8. 2012(2) KCCR 1157 Karnataka High Court (Hanumanthappa Vs. State of Karnataka)
24. Hereinafter considering the prosecution case, submissions of both the sides, evidence of the prosecution witnesses examined before the court along with the decisions relied upon by the counsel for the accused, now the points remain for consideration of this court are whether the prosecution prove its case against the accused beyond all reasonable doubt with regard to demand and acceptance of illegal gratification of Rs.2500/- marked at MO-9 as alleged in the charge sheet or not, are the facts to be considered by the court. It is true that, in Prevention of Corruption Cases for deciding the guilt of the accused, the evidence of complainant and shadow witness are most important than the evidence of other witnesses. If the evidence of said two 23 Spl. S S No.186/2012 witnesses are corroborates each other, then the accused can be convicted otherwise he shall not be. Because in a decision reported in 2004 (2) KCCR 1233 between D.Rajendran Vs. State by Police Inspector, B.O.I., lordship Smt. Justice Manjula Chellur held as follows;
"A. Prevention of Corruption Act, 1988 -
Sections 7 and 13(1)1(d) R/w. 13(2) - Evidentiary Jurisprudence-Corroboration of Evidence of complainant by shadow witness is a must-Unless the evidence of the complainant and the shadow witness corroborate with each other it is not safe to convict the accused persons under the Prevention of Corruption Act for the offence under Sections 13(1)(d) R/w. 13(2) P.C. Act,1988."
25. Further, in the decisions relied upon by the counsel for accused 2015 SCC OnLine SC 814 Had Note A & B (Satyanarayana Murthy Vs. Dist. Inspector of Police and another 24 Spl. S S No.186/2012 AIR 2016 Supreme Court 298 (Krishan Chander Vs. State of Delhi), 2012(2) KCCR 1157 Head note A & C (Hanumanthappa Vs. State of Karnataka), 2012(1) KCCR 414 (R.Malani Vs. State of Karnataka) and (2011) 2 Supreme Court Cases 1010 (State of Kerala and another Vs. C.P.Rao), their lordships have held that, for considering the guilt of the accused to prosecute him for the offences U/s. 7, 13(1)(d) R/w. 13(2) of P.C. Act, the prosecution must prove the fact of demand and acceptance of bribe amount by the accused with corroborative evidence of complainant and shadow witness. In Prevention of Corruption cases, the various High Courts and Apex Courts have held this fact with an intention that usually in this type of cases the complainant being the interested person use to support the prosecution case by exaggerating its case with an intention to see that the accused shall be punished. Keeping that point in mind, 25 Spl. S S No.186/2012 their lordships have held that, the evidence of complainant shall be corroborated with the evidence of shadow witness.
26. Herein this case, by looking into the evidence of PW-2 Madhusudhan no fact of pendency of work of PW-4 with this accused was pending as on the date of trap and the demand and acceptance of bribe amount are not proved. However, in his examination-in-chief he has stated that, the allegations in the complaint marked at Ex.P-3 are not the allegations made by him against the accused. This fact goes to show that, the complaint marked at Ex.P-3 was prepared by some other person with a malafide intention to harass the accused. In the examination-in-chief of PW-2 he has stated that, this accused has prepared his estimation report and forwarded the said file to Sub-Division and that file was not attended in the Sub-Division office, so his customer has quarreled with him. After he informed the said fact to 26 Spl. S S No.186/2012 his friend Mr. Manju, he has taken him to Lokayukta Office, got prepared his complaint as per Ex.P-3 and obtained his signature. Thereafter, the Lokayukta Police called him to their station and obtained his signatures on some documents. In his examination-in-chief he has specifically stated that, this accused has not demanded any illegal gratification from him and received the same. Said fact is appearing on page No.2 of his examination- in-chief and it reads as follows;
"This accused has not demand illegal gratification of Rs.2500/- for attending my electricity supply conversion and for supply of a electrical pole. I had not stated before the Lokayukta Police stating that this accused demanded illegal gratification of Rs.2500/- from me for attending my pending work".
This statement of PW-2 in his examination-in-chief itself falsifies the prosecution case.
27. Later he was treated as hostile by the Spl.P.P. and cross-examined at length. Nothing has been elicited 27 Spl. S S No.186/2012 in his cross-examination with regard to demand and acceptance of illegal gratification of Rs.2500/- by this accused from him and regarding conducting the trap of this accused and seizure of the bribe amount from him. Hence the evidence of PW-2 falsifies the prosecution case with regard to the allegations made against the accused.
28. It is true that, PW-3 Lakshminarasimha Murthy has supported the prosecution case, but his evidence is not a conclusive proof for convicting the accused, because his evidence can be used for corroborating with the evidence of complainant. When the evidence of complainant is contrary to the prosecution case, then the evidence of PW-3 holds no water.
29. In the examination-in-chief the shadow witness has stated before the court as if he was a eyewitness. By considering his admissions in the cross-examination it 28 Spl. S S No.186/2012 indicates that, he was not a eyewitness to that incident as stated in his examination-in-chief. In his cross- examination he has stated that, in his statement given before the police he has stated that, after he and PW-2 went to that office he was standing in front of the main gate of that office. This fact indicates that, he was not went into that office along with the complainant. In his cross-examination on page No.7 he has admitted that, "if a person stands outside the compound gate of that building, nobody can see the sitting of the accused in that office and voice cannot be heard from that place". Same admission was given by the IO PW-7 Anilkumar.V in his cross-examination on page-10. When this shadow witness has not went into that office and heard the conversation between the accused and complainant, did not see the demand and acceptance of bribe amount by this accused from the complainant, under such circumstances, his evidence cannot be considered as a shadow witness to that extent.
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Spl. S S No.186/2012
30. PW-4 K.Bhopalan has stated bout the authorizing of his work by his authorization letter marked at Ex.P-13. Personally he do not know anything about this case. Hence, his evidence is not much important for deciding the prosecution case
31. PW-5 M.Suresh, Executive Engineer, who is examined by the prosecution with regard to identifying of speech of this accused and video in the videograh recorded. But in his examination-in-chief on page No.2 he has stated as follows;
"The voice in the CD displayed before me was not clear and video was also not clear, so he did not identified the voice and person appearing in the videograph."
32. this statement of PW-5 is no use to the prosecution case to accept the speech of this accused appearing in the CD and the video appearing in the videograph displayed before him are of the accused. 30
Spl. S S No.186/2012 Further in this case though the IO has seized said CDs marked at MO-1, 5, 11 & 12, he has not obtained the certificate as required under Section 65-B of Indian Evidence Act and examined expert with regard to its contents and collected the sample voice of this accused for sending the disputed CD for experts examination. Hence the evidence of PW-5 is of no use.
33. PW-6 Gajendra is another panch witness and his evidence is of no much important for considering the guilt of the accused for the offences alleged.
34. That, PW-7 Anilkumar.V is a IO. It is true that he has supported the prosecution case fully, but his evidence is not conclusive proof for convicting the accused. Because his evidence can be used for corroborating with the evidence of other prosecution witnesses. By considering his admissions in cross- examination on page-9 stated that, as on the date of trap 31 Spl. S S No.186/2012 no work pertains to the complainant was pending with this accused and he was not the competent authority for issuance of sanction for conversion of power supply from single phase to three phase. Said admissions reads as follows;
"It is true that, this accused as a JEE was having power to visit and prepare the estimate bill and he was not having any power to issue power connection. It is true that, as per the documents available in Ex.P-13 this accused has prepared his estimation report on 09-11-2011 (said document is at page No.37). It is true that, as per Page No.38 of the sale, the said report is accepted by Assistant Executive Engineer. It is true that, there is mention in the complaint Ex.-3 in that regard".
35. In his cross-examination at page No.10 he has admitted that as per the trap mahazar the shadow witness was standing in front of the gate of that office and watching the complainant. When the shadow witness was outside that office and the place of sitting of accused is not visible from that place, so the evidence of 32 Spl. S S No.186/2012 PW-3 cannot be considered as a shadow witness. In his cross-examination at page-10 he has admitted about non compliance of Section 65-B of the Indian Evidence Act and non drawing of trap mahazar in the office of the accused, it reads as follows;
"It is true that, I have not issued the certificate required U/s. 65-B of the Indian Evidence Act. It is true that, recovery panchanama and trap mahazar are not drawn in the office of the accused".
When he has not obtained the certificate as required U/s. 65-B of the Indian Evidence Act, then the electronic evidence collected by him holds no water.
36. The ratio involved in decision reported in 2015(1) SCC (Crl.)24 Head Note D to F (Between Anvar.P.V. Vs. P.K.Basheer and others) their lordships have held that;
D. Evidence Act, 1872 - Ss. 45-A and 65-B - Applicability f S. 45-A - Stage - Held, it is only when 33 Spl. S S No.186/2012 electronic record is duly produced in terms of S. 65- B of Evidence Act, that question arises as to its genuineness - At this stage, court can resort to provisions of S. 45-A i.e., opinion of Examiner of Electronic Evidence - Information Technology Act, 2000, S. 79-A E. Evidence Act, 1872 - Ss. 65-B, 62 & 59 - Electronic record - Secondary evidence of - Proof by oral evidence - Held, not permissible if requirements under S. 65-B are not complied with. F. Evidence Act, 1872 - S. l65-B - Secondary evidence of electronic records- Admissibility and proof -Safeguards provided under S. 65-B - Purpose
- Held, safeguards are to ensure the source and authenticity of electronic records - As electrohic records are ore susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, whole trial based on proof of electronic records can lead to travesty of justice." The electronic evidence is not admissible for non compliance of conditions mentioned in Section 65-B of Indian Evidence Act.
34
Spl. S S No.186/2012
37. In a decision reported in 2012 (2) KCCR 1157 (Hanumanthappa Vs. State of Karnataka) his lordships held that, "C. Criminal Trial - Appreciation of Evidence- Trap Mahazar-The Trap Mahazar was not drawn on the spot but according to the I.O. the Trap Mahazar was drawn in the office of the Lokayukta. As the accused has denied having given the explanation as mentioned in the Trap Mahazar, the drawing up of Trap Mahazar at the place far away from the place of incident also has given raise to doubt the prosecution case. More so when no work was pending with the accused and record also not seized from the accused."
If the trap mahazar was not drawn on the spot and it was drawn in the office, then it gave raise to doubt the prosecution case.
38. Further in the decisions relied upon by the counsel for the accused reported in a decision reported 35 Spl. S S No.186/2012 in 2015 SCC OnLine SC 814 Head Note B(Satyanarayana Murthy Vs. Dist. Inspector of Police and another, their lordships held that;
"A. Criminal Law - Criminal trial - Proof - Suspicion - Relevance - Reiterated that suspicion, however grave, cannot take the place of proof - Thus, prosecution cannot afford to rest its case in the realm of "may be' true but has to upgrade it in the domain of must be 'true-Prosecution must steer clear of any possible surmise or conjecture - when two views are plausible, then the benefit of doubt must be given to the accused prevention of Corruption Act, 1988- Ss. 7, 13(1)(d)(i), 13(1)(d)(ii) & 13(2)".
2012(1) KCCR 414 Head Note. A, C & D (R.Malani Vs. State of Karnataka) "A. Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d)- Therefore when the certificate was kept ready much before lodging of the complaint the question of accused demanding bribe amount for doing any work does not arise as not work was pending at the time of Lodging the complaint.
36
Spl. S S No.186/2012 C. Prevention Corruption Act, 1988 - Sections 7, 13(1)(d) - Therefore mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused after demand made by him as the evidence of demand is totally lacking.
D. Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d) - In the absence of any evidence of demand and acceptance of the amount as illegal gratification - Mere acceptance of Money by the appellant will not be sufficient to fasten the guilt."
AIR 2016 Supreme Court 298 (Krishan Chander Vs. State of Delhi) their lordships held that;
"Complainant turning hostile on the point of demand and acceptance of bribe by the accused police constable - Panch witness did not hear conversation between accused and complainant at time when complainant had approached him to give bribe money."
39. The fact of demand and acceptance of illegal 37 Spl. S S No.186/2012 gratification by the accused from the complainant must be proved by the prosecution. In this case, said fact is not proved by the prosecution with any cogent evidence. By considering the ratio involved in the decisions relied upon by the counsel for the accused stated above, this court held that, the ratio involved in the said decisions are applicable to the case on hand, so same are considered for deciding the case on merit. In view of the reasons stated above, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt and about the demand and acceptance of illegal gratification of Rs.2500/- from the complainant for doing any of his official favour. In view of all these reasons, this court answered point No.2 and 3 in the Negative.
40. POINT No.4: In view of all the reasons, this court proceed to pass the following :
ORDER Acting under Sec.235 (1) of Cr.P.C., 38 Spl. S S No.186/2012 accused is acquitted 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 stands cancelled after lapse of appeal period.
M.O.9 currency notes are ordered to be confiscated to the State and MO-1 to 8, 10 to 12 which are worthless are ordered to be destroyed after lapse of appeal period.
(Dictated to the Stenographer, after transcription, corrected by me and then pronounced by me in the open court on this the 28th day of November 2018.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) 39 Spl. S S No.186/2012 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 :: R.Sridhara PW.2 :: Madhsudhan PW.3 :: Lakshminarasimha Murthy.K.R. PW.4 :: K.Bhoopalan PW.5 :: M.Suresh PW.6 :: Gajendra PW.7 :: Anil Kumar.V
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 :: Sanction Order Ex.P.1(a) :: Signature of PW.1 Ex.P.2 :: KPTCL Board Resolution Copy Ex.P.3 :: Complaint Ex.P.3(a) :: Signature of PW-2 Ex.P.3(b) :: Signature of PW-7 Ex.P.4 :: Statement of PW-2CW-1 U/s. 164 Cr.P.C., Ex.P.4(a) :: Signature of PW.2 Ex.P.5 :: Note sheet of notes numbers
Ex.P.5(a to e): Signatures of PW.2, PW.2, PW.3, CW.3, PW.7 Ex.P.6 :: Digital voice record transcription 40 Spl. S S No.186/2012 Ex.P.6(a to d): Signatures of PW.2, PW.3, CW-3, PW.7 Ex.P.7 :: Pre-trap mahazar Ex.P.7(a to d): Signatures of PW.2, PW-3, CW-3 and PW.7 Ex.P.8 :: Trap time voice transcription Ex.P.8(a to d): Signatures of PW.2, PW.3, CW-3 & PW-7 Ex.P.9 :: Voice identification report given by CW-5 Ex.P.9(a to e): Signatures of PW.2, PW.3, CW-3, PW.5 & PW-7 Ex.P.10 :: Written explanation of accused. Ex.P.10(a to e): Signatures of PW.2, PW.3, CW-3, accused & PW-7 Ex.P.11 :: Trap Mahazar Ex.P.11(a to e): Signatures of PW.2, PW.3, CW-3, accused & PW-7 Ex.P.12 :: 161 Statement of PW-2/CW-1 Ex.P-13 :: Copy of file pertains to complainant (Seized documents) Ex.P.13(a) :: Signature of PW-4 Ex.P.14 :: Copy of Attendance Register Ex.P.15 :: Acknowledgement given by PW-3/CW-2 Ex.P.15(a) :: Signature of PW-3 Ex.P.16 :: First Information Report Ex.P.16(a) :: Signature of PW-7 Ex.P.17 :: Requisition for depute the officials Ex.P.18 :: Sample Seal of metal seal 'P' Ex.P.19 :: Office copy of letter to S.E. of BESCOM Ex.P.19(a) :: Signature of PW-7 41 Spl. S S No.186/2012 Ex.P.20 :: Office copy of leeter to A.E.E., PWD Ex.P.20(a) :: Signature of PW-7 Ex.P.21 :: Service particulars of accused Ex.P.21(a) :: Signature of PW-7 Ex.P.22 :: Letter to S.P. Lokayukta Ex.P.22(a) :: Signature of PW-7 Ex.P.23 :: Covering Letter of PWD Department Ex.P.23(a) :: Signature of PW-7 Ex.P.24 :: PWD Sketch Map Ex.P.25 :: Chemical Analysis Report Ex.P.25(a) :: Signature of PW-7 Ex.P.26 :: Rough Sketch of spot Ex.P.26(a) :: Signature of PW-7 Ex.P.27 :: Memo of ADGP, Lokayukta Ex.P.27(a) :: Signature of PW-7 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1 :: Metal seal "P"
MO.2 :: Sample Solution MO.3 :: Witness hand wash solution MO.4 :: C.D. MO.5 :: C.D. Pre-trap proceedings MO.6 :: Sample solution MO.7 :: Right hand wash solution of accused MO.8 :: Left hand wash solution of accused 42 Spl. S S No.186/2012 MO.9 :: Currency Notes MO.10:: Shirt MO.11:: C.D. Button camera recordings MO.12:: CD Trap time conversation LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR ACCUSED:
NIL (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78)