Bangalore District Court
State Of Karnataka vs Sri. Rudregowda.S. Sannagowdru on 29 July, 2022
KABC010254572016
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE (P.C.Act), BENGALURU. (CCH79)
Present: Smt. Vineetha P. Shetty,
B.Sc., M.A. (Sankskrit, English), LL.M.,
LXXVIII Addl. City Civil & Sessions Judge
& Special Judge (P.C. Act), Bengaluru.
Dated: 29th July 2022
Spl.C.C.No.445/2016
Complainant: State of Karnataka,
Represented by Police Inspector,
Karnataka Lokayuktha,
Bengaluru.
(By Public Prosecutor)
V/s.
Accused: 1. Sri. Rudregowda.S. Sannagowdru,
S/o Siddabasappa, Aged 53 years,
AEE, North Division,
BDA Office, R.T.Nagar,
R/at No.38, 3rd Cross,
Sanjayanagar, Bengaluru.
2. Sri. Andani, S/o Late. Siddaiah,
Junior Engineer, North Division,
BDA Office, R.T.Nagar,
R/at No.59, 1 st Main,
Ganganagara, Bengaluru - 32.
2 Spl.C.C.No.445/2016
3. Sri. Mohankumar,
S/o Late.Bommaiah,
Aged 36 years,
No.808, 23rd Cross,
Govindarajanagara, K.H.B Colony,
Magadi Road, Bengaluru - 79.
(Accused No.1 by Sri. Shankar P. Hegde,
Advocate
Accused No.2 by Sri. Ravi B. Naik,
Advocate
Accused No.3 by Sri. Krishna S. Vyas,
Advocate)
Date of commission of offence 24.03.2015
Date of report of occurrence 27.03.2015
Date of arrest of accused 26.03.2015
Date of release of accused 28.04.2015 (A1 & A3)
on bail 08.05.2015 (A2)
Total period of custody 34 days A1 & A3
44 days A2
Date of commencement of 05.02.2020
evidence
Date of closing of evidence 16.12.2021
Name of the complainant P. Manohar
Offences complained of U/s.7, 13(1)(d) r/w.
Sec.13(2) and Sec.8 of the
PC Act.
Opinion of the Judge Accused No.1 to 3 are
acquitted
3 Spl.C.C.No.445/2016
JUDGMENT
The Police Inspector, Karnataka Lokayukta, Bengaluru City Division, has submitted this Charge Sheet, against the accused No.1 to 3, for the offences punishable under Sec.7, 13(1)(d) r/w. Sec.13(2) and Sec.8 of the Prevention of Corruption Act, 1988.
2. The case of the Prosecution in brief is that: The accused No.1 being the public servant, working as Assistant Executive Engineer, North Division, BDA, Bengaluru, in connection with, allotment of a site measuring 60x40 to CW5 Rajappa and CW6 Bhagyamma, in the matter of acquisition of their land measuring 5 guntas, had not attended their file, despite their repeated requests, and hence, they had entrusted the said work to CW1 - P. Manohar.
3. The accused No.1 being an Assistant Executive Engineer, demanded Rs.8,00,000/ from CW1 - P. Manohar, on 24.03.2015, and subsequently, received bribe amount of Rs.1,00,000/ on 26.03.2015, and asked accused No.2 Junior Engineer, North Division, BDA, Bengaluru, to receive a sum of Rs.6,00,000/, as gratification other than legal renumeration, 4 Spl.C.C.No.445/2016 to do the aforesaid official work and thereby, accused No.1 and 2 have committed an offence punishable under Sec.7 of the Prevention of Corruption Act 1988. Accused No.2 received a sum of Rs.6,00,000/, in his car on behalf of accused No.1, without any public interest, and thereby, the accused No.1 and 2 have committed criminal misconduct under Sec.13(1)(d) of Prevention of Corruption Act 1988, and punishable under Sec.13(2) of the Prevention of Corruption Act 1988. The accused No.3 being the car driver, working under accused No.1, has obtained Rs.1,00,000/ bribe money, as per the instructions of accused No.1, and kept the same in the dashboard of Indica Car No.KA02 AD6772, to induce accused No.1, to do the official favour, and thereby, committed an offence punishable under Sec.8 of the Prevention of Corruption Act 1988.
4. The Lokayukta Police, after receipt of Complaint from CW1 - P. Manohar, registered the case as per FIR in Cr. No.22/2011, and made preparation to trap the accused. The Investigating Officer i.e., CW24 - R. Sudhir, the Police Inspector secured the panch witnesses, and followed the pretrap 5 Spl.C.C.No.445/2016 proceedings. Thereafter, the said IO trapped the accused persons, arrested them and produced before the Court.
5. The accused persons were released on bail, and after completion of investigation, Charge Sheet was filed. Copies of the prosecution papers were furnished to accused No.1 to 3. After hearing both sides, the charges were framed. The accused No.1 to 3 pleaded not guilty, and claimed to be tried.
6. The prosecution examined 9 witnesses as PW1 to PW9. Ex.P.1 to P.40 and MO1 to MO22 are marked on prosecution side. After closure of the evidence of the prosecution, the accused No.1 to 3, were examined as required under Sec.313 of Cr.P.C. They denied the incriminating evidence, which appeared against them. The accused No.1 - Rudregowda. S, stated that, he had not committed any offence, and that he has been falsely implicated. Accused No.2 - Andani, stated that, he has been falsely implicated and no official work, pertaining to the Complainant, was pending with him. Accused No.3 - Mohankumar, stated that, he had not committed any offence and that he has been falsely implicated.
6 Spl.C.C.No.445/2016
7. After recording the statement of the accused persons under Sec.313 of Cr.P.C., the matter was posted for defence evidence, but the accused persons have not chosen to lead any evidence in defence.
8. Heard the arguments of learned PP for the State and Sri. Shankar P. Hegde for accused No.1, Sri. N.I. Gnanesh for accused No.2, and Smt. Divya N.S. for accused No.3, Advocates, the learned counsels for the accused No.1 to 3 respectively. They have also filed written arguments.
9. Now, the following points arise for my consideration:
1) Does the prosecution prove that, a valid sanction as required under Sec.19 of the Prevention of Corruption Act, to prosecute the accused persons, has been duly obtained?
2) Does the prosecution beyond reasonable doubt prove that, the accused No.1 working as Assistant Executive Engineer and accused No.2 working as Junior Engineer, being the public servants working in BBMP, Bengaluru, demanded and accepted a sum of Rs.8,00,000/ from the Complainant - P. Manohar, as gratification other than legal remuneration, to do an official favour, and thereby, 7 Spl.C.C.No.445/2016 committed an offence punishable under Sec.7 of the Prevention of Corruption Act?
3) Does the prosecution further prove beyond reasonable doubt that, the accused No.1 and 2 being the public servants, obtained pecuniary advantage of Rs.8,00,000/, from the Complainant, and abused their position, by corrupt means, and without any public interest and thereby committed criminal misconduct, which is an offence punishable under Sec.13(1)(d) r/w.
Sec.13(2) of the Prevention of Corruption Act ?
4) Does the Prosecution prove that, the accused No.3 being the Car driver, working under accused No.1, obtained the bribe money of Rs.1,00,000/, through accused No.1 and kept the same in the Indica car No.KA02 AD6772, to induce accused No.1 to do an official favour, and thereby, committed an offence punishable under Sec.8 of the Prevention of Corruption Act?
5) What order?
10. My findings on the above points are as under:
Point No.1: in the Affirmative;
Point No.2: in the Negative;
Point No.3: in the Negative;
Point No.4: in the Negative;
Point No.5: as per the final order for the following 8 Spl.C.C.No.445/2016 REASONS
11. Point No.1: It is needless to mention that, under Sec.19 of the Prevention of Corruption Act, it is mandatory to secure the previous sanction of the Competent Authority, to take cognizance of the offence punishable under Sec.7 and 13 of the said Act. Therefore, it is necessary for the Prosecution, to establish that a valid Sanction Order, was obtained in respect of accused No.1 and 2 - Public Servants, from the Competent Authority.
12. The Prosecution Sanction Orders are at Ex.P.8 and P.9, and the said Sanction Orders, in respect of accused No.1 and 2 respectively, are not in dispute. In Ex.P.8 and P.9 - Sanction Orders, it is clearly stated that, the Sanctioning Authority, after perusing the investigation materials, and on applying the mind, had come to the conclusion that, there was a primafacie case for grant of sanction, against the accused No.1 and 2, for the offences punishable under Sec.7 and 13(1)d) r/w. Sec.13(2) of the PC Act.
9 Spl.C.C.No.445/2016
13. PW5/ the IO has also referred to Ex.P.8 and P.9 - Sanction Orders in his evidence. Furthermore, Ex.P.8 and P.9 have been marked by consent. In the circumstances, therefore, it has to be held that, valid Sanction Orders have been obtained by the IO, to proceed against the accused No.1 and 2. As accused No.3 is not a public servant, question of obtaining Sanction does not arise. Hence, point No.1 is answered in the Affirmative.
14. Point No.2 to 4 : As these points are interrelated, and to avoid repetition of discussion, these points are taken up together for consideration.
15. Ex.P.1 is the Complaint. The averments in the Complaint would indicate that, accused persons were demanding the illegal gratification to do the official favour, and it is alleged that the accused persons have committed the alleged offences. It is for the Prosecution to prove that, the accused No.1 and the accused No.2, being the Public Servants demanded and accepted a sum of Rs.8,00,000/, from the Complainant, as gratification to do official favour, and accused 10 Spl.C.C.No.445/2016 No.3 obtained Rs.1,00,000/, to induce accused No.1, to do an official favour.
16. The Prosecution in all examined 9 witnesses to establish its case. PW1 P. Manohar is the Complainant, PW2
- T.N. Ravi is the shadow witness, PW3 - Dr. Ramesh @ Thirumalesh, is the Chemical Examiner, PW4 - Homanna is the Executive Engineer attached to BDA, PW5 - K. Suresh and PW7
- M.R. Sudhir are the Investigating Officers, PW6 - Rajappa and PW9 - Bhagyamma are the Victims, and PW8 - Bhargava is the panch witness.
17. PW1 - P. Manohar is the Complainant. He has identified his signature in the Complaint at Ex.P.1. During evidence, PW1 deposed that CW5 Rajappa and CW6 - Bhagyamma, hailed from his place at Chikkabanasawadi, and that they had given him Ex.P.2 - Authorisation letter, to do their work at BDA, Bengaluru. According to PW1, Bhagyamma and Rajappa had possessed 5 guntas of land, in Survey No.174/13 and that, the BDA had taken possession of the said land, to form a road and a park, however, there were no Land 11 Spl.C.C.No.445/2016 Acquisition Proceedings in this regard. Despite several attempts, they could not succeed in receiving the compensation. Instead, there was an order passed by the BDA, to provide them an alternative site, equivalent to 50% of their land.
18. According to PW1, Bhagyamma and Rajappa being illiterates, had approached him and requested to get their work done. Hence, he had approached the accused No.1 Rudregowda, who was working as Assistant Executive Engineer in BDA at the relevant time. The accused No.1, showed him a Report, stating that Bhagyamma and Rajappa were entitled for compensation to the extent of 50% of their land. Accused No.1 also told PW1, that a spot inspection was required to be conducted, and instructed PW1 to meet him after a week.
19. It is in the evidence of PW1 that, he had met accused No.1 on 15.03.2015 for the first time, and on the said day, on his return from the office of accused No.1, he had met a known person, who on enquiry, informed PW1 that, no work would be processed in the office of BDA, without payment. Therefore, 12 Spl.C.C.No.445/2016 PW1 conveyed the same to his Assistant - Srinivas, who in turn had assured PW1, that he would go to BDA office, and accordingly, Srinivas was sent to the office of BDA. After meeting accused No.1 and other staff members, in the BDA office, Srinivas conveyed to PW1, that the accused No.1 and others had demanded Rs.8,00,000/ and the said conversation touching the demand, was recorded in his mobile phone.
20. During further examinationinchief, PW1 deposed that, he was not acquainted with the accused persons, and that he had not lodged any Complaint against them, and according to PW1, it was Srinivas, who had lodged the Complaint. PW1 pleaded inability to state the contents of the Complaint. It is in the evidence of PW1, that Srinivas was not acquainted either with Bhagyamma or Rajappa and therefore, their Complaint was filed through PW1. It is found that, without knowing the contents of the Complaint, PW1 had signed the Ex.P.1 Complaint. PW1 deposed that, Police had called him to their office and obtained his signature.
13 Spl.C.C.No.445/2016
21. It is in the further examinationinchief of PW1 that, on 15.03.2015, he went to the office of accused No.1, and the said accused instructed him to come after a week, but however, he had never been to the office of the accused No.1 thereafter. PW1 further deposed that, he had handed over Rs.8,00,000/ to the Police, as per their say. PW1 pleaded inability to state as to who had demanded money from Srinivas.
22. As PW1 has not supported the case, the prosecution treated PW1 as a hostile witness and crossexamined him. During crossexamination, PW1 denied the suggestion that, it was only he, who had lodged the Ex.P.1 - Complaint. PW1 also denied the suggestion that, he had visited the accused persons at their office, and asked them to allot 2 sites measuring 30 x 40 feet each, and that at that time, the accused persons, had demanded from him a bribe of Rs.4,00,000/ each, to both sites.
23. PW1 further denied the suggestion that, he had recorded the conversation in his mobile phone, and transmitted the contents to a C.D., and thereafter, handed over the said C.D 14 Spl.C.C.No.445/2016 to the police, along with Ex.P.1 - Complaint. According to PW1, amount of Rs.8,00,000/ was handed over by him to Srinivas, and that Srinivas in turn, had passed the amount to Police. PW1 has specifically denied the suggestion that, the Police had sent him to the office of the accused, along with one Ravi to follow him. PW1 denied further suggestion that, accused No.1 accepted Rs.1,00,000/ from him and asked accused No.3 Mohan Kumar, to keep the said amount, in the dash board of his car.
24. The suggestion that, the accused No.1 had instructed PW1 to pay Rs.6,00,000/ to accused No.2 Andani, and accordingly, PW1 had paid the said amount to accused No.2, is also denied by PW1. Other suggestions that, accused No.2 had returned Rs.6,00,000/ to PW1, and asked him to come down to a nearby parking slot, and to pay the amount there, and accordingly, PW1 had paid Rs.6,00,000/ to accused No.2, inside his car, are also denied by PW1.
25. PW1 admitted that, the Police had surrounded and trapped accused No.2. He has also admitted that, by 15 Spl.C.C.No.445/2016 summoning accused No.3, the Police had opened the car of accused No.1, and seized Rs.1,00,000/. It is also elicited from PW1 that, the IO had subjected both accused No.2 and 3 to the phenolphthalein test, and that the hands of both accused No.2 and 3 had turned pink. Further suggestion that, the trap team had seized Rs.6,00,000/ from the car of accused No.2, and that he had signed the list of currency notes, are admitted, but, the suggestion that, it was he, who had handed over Rs.6,00,000/ to accused No.2, is denied by PW1.
26. Accused No.1 and 3 have not chosen to crossexamine PW1. During crossexamination on behalf of accused No.2, PW2 deposed that, the police had found Rs.6,00,000/ in the car of accused No.2, and prior to seizure of the said amount, the accused No.2 was sent out of the car.
27. PW2 - T.N. Ravi, the Senior Assistant of BESCOM, Bengaluru, is the shadow witness. He has deposed that, as per the instructions of his superiors, he had visited the office of Lokayukta Police on 26.03.2015. That, he was called as a witness in a trap case, based on the Complaint given by PW1. It 16 Spl.C.C.No.445/2016 is in his evidence that, the Complaint was lodged by PW1, alleging that the accused had demanded Rs.8,00,000/ from him, and PW1 had brought Rs.8,00,000/ along with his Complaint.
28. PW2 further deposed that, the said currency notes were kept in a cover, after sprinkling of phenolphthalein powder, and then kept in a bag belonging to PW1. PW2 was then informed by the IO that, they were proceeding to the office of the accused. PW1 was instructed to remove his cap, immediately after passing of the money to the accused. PW2 also deposed that, an audio recorder was given to PW1, and the whole procedure continued upto 3.30 p.m, and thereafter, they visited the BDA complex situated at RT Nagar at 4.15 p.m. They parked their vehicle at a nearby distance, and went to the 2 nd floor. At about 6.45 p.m., the complainant gave a signal, by removing his cap, and proceeded towards the car of accused No.2. Police seized the key of the car, of accused No.2, and thereafter, all of them went to the office of accused No.1. 17 Spl.C.C.No.445/2016
29. PW2 deposed that, he did not see PW1 handing over money to accused No.2 - Andani. The relevant portion in his evidence reads as: "ಮನನನನಹರರ ರವರರ ಅಅದದನಗನ ಹಣ ಕನನಟಟದದನರನ ನದನರ ನನನನಡಲಲ" According to PW2, the hand wash of all the three accused persons, was done in his presence, but, the hand wash of accused No.1, did not turn pink. It is in the evidence of PW2 that, subsequently, the amount of Rs.6,00,000/ from the car of accused No.2, and Rs.1,00,000/ from the car of accused No.1, were seized. PW2 has referred to Ex.P.3 - pretrap mahazar, Ex.P.4 - Trap Mahazar, Ex.P.5 - the list of currency notes and Ex.P.7 - Transmitted version of voice recorder.
30. During crossexamination on behalf of accused No.1, PW2 admitted that, the Complaint was not given in his presence, and that he came to know of the contents of the Complaint, only through the police. PW2 further admitted that, the statements of the accused, were recorded, after completion of trap procedure, while the accused persons were in the custody of the police. It is elicited that, it was the police who had informed PW2, that the money was kept in the dash board of the car. The relevant portion in his evidence reads as: 18 Spl.C.C.No.445/2016 "ಹಣವನರನ ಡದಡಷರ ಬನನನಡರನಲಲ ಇಟಟದದದರನ ಎಅಬ ವಚದರ ಪಲನಸರಅದ ನನಗನ ಗನನತದತಗದನ ಎಅದರನ ಸರ"
31. During crossexamination on behalf of accused No.2, PW2 admitted that, he was not aware of the conversation made in the office of accused No.1. The relevant portion in his evidence reads as: "ಅಲಲ ಏನರ ಸಅಭದಷಣನ ಆಯತರ ಎಅದರ ನನಗನ ಗನನತತಲಲ ಎಅದರನ ಸರ." PW2 further admitted the suggestion that, it was not accused No.2, who had opened the door of the car, and that, he had not seen PW1, inside the car of accused No.1. It is elicited that, the glass of front door of the car was already lowered, when he saw the car, for the first time. During cross examination on behalf of accused No.3, PW1 admitted that, the police had not seized any amount from accused No.2, and answered that Rs.1,00,000/ was found inside the car.
32. PW3 - Dr. Ramesh @ Thirumalesh is the Chemical Examiner. He has deposed that, he had received a letter from the concerned police, on 06.04.2015, to subject some of the articles to chemical test, and accordingly the Articles sent by the police were subjected to chemical test, and in article 6, 7, 9, 19 Spl.C.C.No.445/2016 10, 12 to 16 and 14(a), phenolphthalein, was detected. He had sent the Chemical Report to IO as per Ex.P.11. PW3 opined that, phenolphthalein, was detected in the hand wash of accused No.2 Andani and accused No.1 Sannegowda, as well as accused No.3 Mohan Kumar. During cross examination, PW3 deposed that, he had mentioned the names of accused, in his Report, on the basis of the names mentioned on the Articles sent by the police. It is elicited that, when a person with phenolphthalein powder sprinkled hands, touches another person's hands, phenolphthalein contents would be detected in the hand wash of that another person also.
33. PW4 - Homanna is the Executive Engineer, attached to BDA, North Division, Bengaluru, at the relevant time. It is his evidence that, on 24.03.2015, the IO had arrived to his office, and took accused No.1 - Sannegowda, along with him. According to PW4, he could not identify the voice of accused No.1 - Sannegowda, in the mobile phone, but he was insisted by the IO, to give it in writing that, the said voice is only that of accused No.1 Sannegowda. PW4 was therefore treated hostile by the Prosecution, but during crossexamination on behalf of 20 Spl.C.C.No.445/2016 the Prosecution, PW4 categorically denied of having given any Report as per Ex.P.13, stating that the voice identified by him was only that of accused No.1 Sannegowda. During cross examination, on behalf of the accused, PW4 admitted that, there was no necessity for PW1, Bhagyamma and Rajappa, to meet the accused No.1 and 2.
34. PW5 - K. Suresh is the Investigating Officer. He has deposed that, on 19.08.2016, Prosecution Sanction Orders as per Ex.P.8 and P.9, were sent to him by ADGP, along with Ex.P.15 memo to submit the Charge Sheet, and accordingly, he has filed the Charge Sheet along with Ex.P.16 Certificate of his superiors.
35. PW6 - Rajappa has deposed that, 5 guntas of land in Sy.No.174/13 in Chikkabanaswadi Village, originally belonged to his parents, and after their death, the khata was transferred in the joint name of himself and his brother's wife. It is in his evidence that, the said 5 guntas of land, was acquired by the BDA, for the formation of road and park, but he had not received any notice of acquisition. PW6 deposed that, he had 21 Spl.C.C.No.445/2016 submitted an application to BDA, along with Bhagyamma, to allot an alternative site. Ex.P.16 is the copy of his application. It is in his evidence that, when BDA did not respond, they met PW1, and authorised him to take appropriate action. Ex.P.2 is the Authorisation letter, executed by PW6 Rajappa and PW9 Bhagyamma. PW6 deposed that, when PW1 approached BDA, accused No.1 - Sannegowda, demanded Rs.8,00,000/ and hence, PW1 had lodged the Complaint with the Lokayukta Police. As PW6 was reported dead subsequently, his evidence in crossexamination is not available.
36. PW7 - M.R. Sudhir, Police Inspector, Karnataka Lokayukta, has deposed in his evidence, that on 26.03.2015, PW1 P. Manohar was there in his office, and on enquiry, PW1 submitted a Complaint and a CD allegedly containing, a conversation touching demand for bribe, by the accused No.1. PW7 got confirmed about the contents of the Complaint, and after listening to the conversation in the CD, registered a case in Cr.No.19/2015 and submitted the FIR to the Court. 22 Spl.C.C.No.445/2016
37. PW7 has referred to the Complaint at Ex.P.1, the FIR at Ex.P.17, the copy of an Unofficial Note issued by the BDA to accused No.1 as per Ex.P.18, and the Authorisation Letter issued by PW6 and PW9 in favour of PW1 as per Ex.P.2. PW7 deposed that, he had secured two officials, i.e., PW2 T.N. Ravi and PW8 N. Bhargava from BESCOM. They were introduced to PW1 and other officials, and were also requested to assist in the investigation. He had explained about the contents of the Complaint, to the witnesses, and allowed them to listen to the conversation in the CD. The conversation in the CD, was thereafter transcripted, and signatures of the witnesses were obtained on Ex.P.7/ the transcripted version of the CD.
38. PW7 deposed that, the bribe amount of Rs.8,00,000/ was produced by PW1, and the currency note numbers were computerized as per Ex.P.5. PW7 then sprinkled the phenolphthalein powder on the currency notes. The panch witness PW2 - Ravi had kept the said currency notes, in the bag of PW1. PW7 had instructed PW1, to handover the said amount to accused persons, only in case of a demand. Sodium Carbonate Solution was thereafter prepared, and the sample of 23 Spl.C.C.No.445/2016 said Solution is at MO4. Both the hands of PW4 were washed in the Solution, to turn pink, and the sample of the said Solution is at MO5. The conversation from the original CD produced by PW1 was copied to another CD, and the original CD is at MO3. The entire pretrap procedure was thereafter, reduced into writing, as per Ex.P.3 - Mahazar. The entire pretrap procedure was also video graphed and the video was transmitted to a CD, at MO6.
39. It is in the evidence of PW7, that the accused No.1 had called up PW1, to his number 9945091233, from his mobile phone No.9880782229. After giving instructions to PW1 and the panch witness - PW2, he had proceeded to the office of accused No.1. PW7 reminded PW1 and PW2, about his instructions, and asked them to meet the accused. PW7 thereafter followed PW1 and PW2, who had gone inside the office of the accused.
40. According to PW7, the trap team was waiting for the signal of PW1, from outside. At about 2 hours later, PW1 came out and gave the signal by removing his cap. Immediately PW7 24 Spl.C.C.No.445/2016 along with his team, approached PW1. PW7 was informed by PW1 that, accused No.1 had demanded Rs.7,00,000/, and had instructed him to handover Rs.1,00,000/ to the driver. When the driver did not respond to the phone call, accused No.1, himself had received the said amount, and kept it beneath a file. Further, accused No.1 had also instructed PW1, to handover remaining Rs.6,00,000/ to accused No.2, and thereafter, secured the presence of the said accused No.2. PW1 handed over Rs.6,00,000/ to accused No.2, who in turn had returned the same, requesting PW1 to hand over the money in his car. Accordingly, PW1 entered the car driven by accused No.2, and kept the amount in the dash board. Immediately, PW7 and his team surrounded the car. PW7 left two members of his team in the car, along with the accused No.2, locked the car by retaining the key.
41. According to PW7, he along with PW1, PW2 and his team, went to the office of accused No.1. PW1 identified and confirmed that it was accused No.1, who had received Rs.1,00,000/ from him. The accused No.1 however had refused of receiving of any amount from PW1. PW7, thereafter 25 Spl.C.C.No.445/2016 collected the particulars of official car and the driver. Tata Indica No.KA 02 AD 6772 was the car number and accused No.3 - Mohan Kumar was the driver. PW7 thereafter left two more members of his team in the office of accused No.1, and proceeded towards the car, and asked the driver to open the door. PW7 noticed Rs.1,00,000/ in the dash board. Thereafter, PW7 locked the car, and retained the key. He had also instructed his team, to take accused No.3 to the office of accused No.1, and thereafter, came back near the Maruti Zen Car No.KA 02 M 595 of accused No.2.
42. PW7 seized Rs.6,00,000/ from the car of accused No.2, and locked the car by retaining the key. Thereafter, he had arrested accused No.1 to 3, by following the arrest procedure. In the office of accused No.1, Sodium Carbonate Solution was prepared, and the samples of said Solution used for the hand wash of accused No.1 to 3 were preserved as Article No.5, 8 and 11 respectively. When accused No.1 to 3 were subjected to hand wash, the Solutions turned pink and the said pink Solutions were preserved as Article No.6, 7, 9, 10, 12 and 13.
26 Spl.C.C.No.445/2016
43. Thereafter, PW7 came back near Maruti Car No.KA 02 M 595 of accused No.2, and opened the car. He got the amount of Rs.6,00,000/ taken out from the car. The numbers of currency notes tallied with the numbers of currency notes used during pretrap procedure, and he had kept the said seized money, in a sealed cover. PW7 thereafter proceeded towards the car ie., Tata Indica Car No.KA 02 AD 6772 of accused No.3 driver and got the amount of Rs.1,00,000/ taken out from the car. The numbers of currency notes tallied with the numbers of currency notes used during pretrap procedure and hence, he had kept the said seized money in a sealed cover.
44. According to PW7, PW1 had shown him, the exact place in the office of accused No.1, where he had kept Rs.1,00,000/, and the said spot on the table was rubbed with a cotton piece at MO16, which was preserved in a cover. When PW7 enquired PW1, about the balance amount of Rs.1,00,000/, PW1 showed the remaining amount kept in his bag, and the numbers of the currency notes, tallied with the currency notes used during pretrap procedure. 27 Spl.C.C.No.445/2016
45. The conversation recorded by PW1, was transmitted to a laptop and the print out of the conversation is as per Ex.P.20. Thereafter, it was transmitted to a CD and then to another CD and the first original CD is at MO17. Ex.P.21 is the unofficial note of Deputy Secretary, BDA, which was found on the table of accused No.2, and the same was seized by PW7. The Tappal Register and the Attendance Register, were also verified by PW7. Ex.P.22 is the attested copy of the Attendance Register. The statement of Homanna, the Senior Officer of the accused persons is at Ex.P.13. The defence statement of accused No.1 is at Ex.P.23, that of accused No.2 is at Ex.P.24, and that of accused No.3 is at Ex.P.25. The trap proceedings were recorded by Ravindra, the staff of PW7, and thereafter transmitted to a CD, at MO18. The CDR of the mobile phone numbers of the accused No.1 and 2 and the PW1, is at Ex.P.28.
46. PW7 has further referred to, the sketch prepared by the Assistant Executive Engineer, at Ex.P.29. The information letter with regard to the driver and the office vehicle sanctioned to accused No.1 at Ex.P.14, the service particulars of accused No.1 and accused No.2 at Ex.P.31, the CDR particulars of 28 Spl.C.C.No.445/2016 mobile phone of accused No.3 at Ex.P.32, the transcripted voice recording of accused No.1 and PW1, at Ex.P.33, the sample voice collection Mahazar at Ex.P.36, the Voice Analysis Report pertaining to accused No.1 at Ex.P.10, and the Certificate under Sec.65B of Evidence Act issued by PW7, in respect of the gadgets and CD used during the proceedings, at Ex.P.38.
47. PW7 identified the cash amount of Rs.6,00,000/ seized from accused No.2 as MO1, Rs.1,00,000/ seized from accused No.3 as MO2, the CD allegedly produced by PW1 as MO3, the sample Solutions as MO4, MO7 MO10, MO13 the pink coloured Solutions as MO5, MO8, MO9, and MO11, MO12, MO14, MO15, CD containing pretrap proceedings as MO6 the cotton cloth as MO16, the CD of conversation prepared during trap as MO17, trap proceedings recorded CD as MO18, CD containing voice sample of accused No.1 at MO19, CD containing sample voice recording proceedings at MO20 and the metal seals at MO21 and MO22.
48. During crossexamination on behalf of accused No.1, PW7 denied the suggestion, that there was no such 29 Spl.C.C.No.445/2016 conversation between accused No.1 and PW1, but however, admitted the suggestion that, the mobile phone in which the PW1 had recorded the conversation, was not seized, and that the CD allegedly containing said conversation was not sent for Expert Opinion. It is elicited that, no Certificate as required under Sec.65B of Evidence Act, was obtained from the person who had prepared the said CD.
49. PW7 also admitted the suggestion, that the file pertaining to PW6 - Rajappa was received by accused No.1, for the first time only on 15.03.2015, and that PW1 had met accused No.1 on 19.03.2015, and 24.03.2015. To a pointed question that, the Solution did not turn pink, when the hand wash of accused No.1 was done, the answer of PW7 was in the affirmative. The relevant portion in his evidence reads as: "ರರದನದನಗಗಡರ ಬಲಗನಗ ಮತರತ ಎಡಗನಗಯನರನ ತನನಳನದದಗ ದದದವಣ ಯದವವದನನ ಬಣಣಕನಕ ತರರಗಲಲ ಎಅಬ ಪದಶನನಗನ ಸದಕಕಯರ ಮನಲನನನನಟಕನಕ ಯದವವದನನ ಬಣಣಕನಕ ತರರಗಲಲವನಅದರ ಉತತರಸದದದರನ" The recording of sample voice of the accused No.1 is seriously disputed during crossexamination of PW7. PW7 admitted that, the digital voice recorder, in which the alleged conversation was recorded on the day of trap, had not been 30 Spl.C.C.No.445/2016 sent for Expert Opinion. Suggestion that, he had purposely not collected the sample voice of complainant, is denied by the PW7.
50. During crossexamination on behalf of accused No.2, PW7 admitted, that he had not seen accused No.2 - Andani, in BDA office. The relevant portion in his evidence reads as: "2 ನನನ ಆರನನನಪ ಅಅದದನಯನರನ ನದನರ ಬ.ಡ.ಎ. ಕಛನನರಯಲಲ ನನನನಡಯನ ಇಲಲ ಎನರನವವದರ ಸರ". Suggestion that, the staff of PW7 were holding the hands of accused No.2, inside the car, is denied by PW7.
51. During crossexamination on behalf of accused No.3, PW7 admitted that, accused No.3 was not inside the car, when the car was opened, and stated that he was standing about 5 feet away from the car. The relevant portion in his evidence reads as: "ನದನರ ಬದಗಲನರನ ತನಗನಯರ ಎಅದರ ಹನನಳದದಗ 3 ನನನ ಆರನನನಪ ಕದರನ ಒಳಭದಗದಲಲ ಇರಲಲಲ. 3 ನನನ ಆರನನನಪ ಕದರನಅದ ಸರಮದರರ 5 ಅಡ ದನರದಲಲದದರರ". PW7 also admitted that, accused No.3 had not touched the amount kept in the dash board. Suggestion that, there was no center locking system to the car, was admitted by PW7. 31 Spl.C.C.No.445/2016
52. PW8 - N. Bhargava, the Junior Assistant attached to BESCOM is another panch witness. PW8 deposed that, he went to the office of Lokayukta on 26.03.2015, along with PW2 - Ravi. According to PW8, IO had handed over to him, the Complaint of PW1, and on going through the said Complaint, it was learnt that Bhagyamma and Rajappa had authorised PW1 to appear before the BDA, on their behalf. However, during further examination in chief, PW8 deposed that, he had not read the Complaint. As PW8 has not supported the case of the prosecution in its entirety, he was treated hostile. During cross examination on behalf of the prosecution, PW8 denied of having heard of any conversation in the CD, as facilitated by the Investigating Officer. PW8 also denied the suggestion that, it was PW1 who had brought Rs.8,00,000/ to produce before the IO. PW8 further denied the alleged pretrap and trap proceedings.
53. PW9 - Bhagyamma has deposed that, her motherin law had 5 guntas of land in Banaswadi village, and that after the death of her motherinlaw, the khata was changed to the joint names of herself and her husband's brother - Rajappa. 32 Spl.C.C.No.445/2016 According to PW9, the said land was taken possession of, by the BDA with an assurance that an alternative land would be provided to them, but subsequently, the BDA failed to keep up the assurance and hence, they had met PW1 and executed Authorisation Letter in his favour. It is in her evidence that, when PW1 approached the accused No.1 on their behalf, there was a demand for bribe of Rs.8,00,000/ and hence, a Complaint was proposed by PW1. She identified Ex.P.2 - Authorisation Letter. During crossexamination on behalf of the accused, however, she pleaded inability to state the contents of Ex.P.2. She has also deposed that, she had neither seen PW1, nor made any conversation with him.
54. On the basis of above evidence on record, the learned counsel for accused No.1 argued that, accused No.1 had never demanded or accepted any illegal gratification from anybody. He had never given any amount to accused No.2 or 3, nor informed them to receive Rs.6,00,000/ and Rs.1,00,000/ respectively, as alleged by the Prosecution. Further, as no work of the complainant was pending with accused No.1, there was no necessity for PW1 to approach accused No.1. 33 Spl.C.C.No.445/2016
55. The learned counsel for accused No.2 argued that, the accused No.2 had never facilitated any demand or acceptance of any illegal gratification from anybody and PW1 had never spoken to accused No.2, either in his car or in his office. Further, no recovery of the amount was made from the car, in his presence.
56. The learned counsel for accused No.3 argued that, accused No.3 had never facilitated, demanded or accepted any illegal gratification from anybody and that accused No.3 had never received any instructions from accused No.1 and that he had not taken any money from the office of accused No.1. That there was no necessity for the complainant to approach the accused No.3 and the remaining accused. Further, accused No.3 was not engaged to do any official duty of accused No.1, and there was no occasion to receive any money, at the instruction of accused No.1.
57. Though it is contended on behalf of accused No.1 to 3, that the Police have foisted a false case against them, the accused persons have not led any independent evidence in 34 Spl.C.C.No.445/2016 defence, and mainly relied upon the evidence led by the Prosecution, particularly the defence set out during cross examination.
58. On appreciation of the entire evidence on record, it is seen that, the complainant - P. Manohar has not supported the case of prosecution. Though he has referred to his Complaint at Ex.P.1, Authorisation letter at Ex.P.2, Entrustment Panchanama at Ex.P.3, and Mahazar at Ex.P.4, he is not aware of the contents of the said documents. The relevant portion in his evidence reads "I do not know the contents of the Complaint, as the same was drafted by Srinivas". Further, "Without knowing the contents of the Complaint, I have signed the same". Hence, evidence of PW1 touching Ex.P.1 - Complaint itself, is not in favour of the Prosecution. PW1 has deposed categorically that, he had not given any money to the accused persons, and that the accused persons had not demanded any money from him. According to PW1, the Police had received Rs.8,00,000/ from him, through Srinivas, with an assurance to return the same later. Nothing is found in his evidence, to 35 Spl.C.C.No.445/2016 show that Ex.P.5 - Currency note list was prepared in his presence.
59. Demand of Rs.8,00,000/ by the accused, and recording of the conversation, touching demand in his mobile phone, are denied by PW1. It is the evidence of IO/ PW7, that he had received the Complaint from PW1, along with the CD at MO3, allegedly containing the voice of accused No.1 and PW1. It is worthy to mention that, the CD at MO3, which was allegedly handed over by PW1, at the time of lodging Ex.P.1 - Complaint, has been specifically denied by PW1.
60. PW2 - Panch Witness being an independent witness, his evidence assumes much importance. According to PW2, he did not accompany PW1 complainant, when PW1 entered the office of accused No.1, on the instructions of the trap team. PW2 also deposed that, he came to know about the bribe amount kept in the car, only through the police. Hence, his evidence with regard to alleged demand and acceptance of bribe amount, is not of much help to the Prosecution. 36 Spl.C.C.No.445/2016
61. Nothing is found in the evidence of PW2, that he had personally witnessed PW1 handing over the amount to accused No.1 and accused No.3. The evidence of independent panch witness PW2, as discussed above, would itself indicate that, he had not even witnessed the Police recovering the amount, from the possession of any of the accused persons. Instead he has deposed during examination by the prosecution that, he came to know of the same through PW1. Though PW2 has stated that, Rs.6,00,000/ was recovered from the car of accused No.2, and Rs.1,00,000/ was recovered from the car of accused No.1, during crossexamination PW2 has categorically admitted that, he had not seen PW1 handing over the amount to accused No.2.
62. The relevant portion of evidence of PW2 reads as : "ಮನನನನಹರರ ರವರನರನ ವಚದರಸದದಗ ರನ. ಒಅದರ ಲಕಕವನರನ ಎ.ಇ.ಇ. ರವರ ಟನನಬಲರ ಮನಲನ ಇಟನಟ , ಉಳದ ಆರರ ಲಕಕವನರನ ಜನ.ಇ. ಅಅದದನಯವರಗನ ಕನನಡಲರ ಹನನನಗದನದ ಎಅದರ ತಳಸದರರ. ಮನನನನಹರರ ರವರರ ಅಅದದನಗನ ಹಣ ಕನನಟಟದದನರನ ನದನರ ನನನನಡಲಲ. ಹಣವನರನ ಕದರನ ಡದಡಷರ ಬನನನಡರನಲಲ ಇಟಟದದದರನ ಎಅಬರದರ ಆ ನಅತರ ಗನನತದತಯತರ". Further, the relevant portion in para 39 of his evidence, during crossexamination on behalf of accused No.2, reads as: 37 Spl.C.C.No.445/2016 "ಮನನನನಹರರ ರವರರ ಆರನನನಪಯ ಕದರನಲಲ ಇದರದದದನರನ ನದನರ ನನನನಡಲಲ ಎಅದರನ ಸರ. ಕದರನ ಬಳಯಅದ ಹಣವನರನ ತನಗನದರಕನನಅಡರ 2 ನನನ ಮಹಡಗನ ಹನನನಗಲಲ ಎನರನವವದರ ಸರ. ನದವವ ಬಅದದಗ ಕದರನ ಮರಅಭದಗದ ಬದಗಲನ ಗದಜನರನ ಕನಳಗಳಸಲದಗತರತ ಎನರನವವದರ ನಜ. ಮನನನನಹರರ ಆ ಕದರನ ಒಳಭದಗದಲಲ ಏನರ ಮದಡದದದರನ ಎಅಬರದನರನ ನದನರ ನನನನಡಲಲ ಎನರನವವದರ ನಜ". Therefore, it is clear that PW2 had not witnessed the alleged passing of the amount. None of the other witnesses have stated about acceptance of the tainted notes by the accused, from the Complainant.
63. Admittedly, the IO is not an eye witness, either to the demand or to the acceptance of illegal gratification. It is worthy to mention that, MO3 - CD, allegedly containing the conversation between PW1 and accused, and said to be produced by PW1, along with the Complaint, has been sent to FSL, but, MO17 - CD containing the conversation of PW1 and the accused persons at the time of trap, and which is marked through PW7 - IO, has not been sent to FSL. No reasons is forthcoming in the evidence of PW7, for not sending the same to the FSL.
38 Spl.C.C.No.445/2016
64. According to PW7/IO, the voice of accused No.1 and PW1, was recorded by PW1 himself in his mobile phone, for the first time on 26.03.2015. But, the said mobile phone of PW1, has not been seized by the IO during investigation. Instead, attempts were made by the IO to assert that, PW1 himself had got written the contents in the mobile phone into a CD at MO3, in a private Cyber Centre, and produced the said CD along with the Complaint at Ex.P.1. But, as already stated, the same is not supported by PW1 himself, and he has categorically denied of preparing of any such CD in a private Cyber Centre. No efforts have been made by the IO, to examine any witness, from the private Cyber Centre referred to by him. On the other hand, PW7 relied on the 65B Certificate at Ex.P.12, given by PW1. PW1 however, has categorically stated that, the police took his signature on Ex.P.12 - Certificate, without bringing the contents, to his knowledge.
65. Learned Counsel for accused No.1 argued that, the admissibility, authenticity, reliability and credibility cannot be said to be proved, in the absence of seizure of the recording device, hashvalue and 65B Certification. It is worthy to 39 Spl.C.C.No.445/2016 mention that, the CD at MO17, allegedly containing the voice of accused No.1 and PW1, and allegedly recorded during trap, has not been sent to FSL for voice test. Instead the CD at MO3, which was allegedly handed over to IO by PW1 has been sent to FSL for voice test. No reason is forthcoming in the evidence of IO, for not sending this very crucial CD at MO17 to FSL. Further, no sample voice of PW1 was collected, for the voice test, to conclude that, there was a conversation between PW1 and accused No.1, and that, the accused No.1 had made a demand with PW1, for illegal gratification, as per MO3 - CD. Instead, the sample voice of accused in CD at MO19, and the seriously disputed CD at MO3 were sent to FSL and as such it is not safe to rely on the FSL Report at Ex.P.10, to hold that voice in the CD at MO3 is that of accused No.1, and that there was a demand by accused No.1 for illegal gratification.
66. As the Ex.P.10 - FSL Report, is only with regard to the CD allegedly produced by PW1, along with Complaint and with regard to the CD, containing the sample voice of only the accused No.1, the said FSL 40 Spl.C.C.No.445/2016 Report though has been marked by consent, is of no help to the prosecution, to establish the demand.
67. PW3 - Chemical Examiner, has spoken about the hand wash containing phenolphthalein powder and hence, his evidence is not helpful to establish, demand and acceptance of illegal gratification. PW4 who was examined by the prosecution, to identify the voice of the accused, has deposed that the IO - PW7, had asked him, to listen to a voice to confirm, if the voice is that of accused No.1, and PW4 had specifically conveyed to the IO, that he could not recognize the voice, but however, the PW4 was insisted to give such Report in writing, stating that the voice identified by him, was only that of accused No.1. The PW4 has specifically denied the suggestion of prosecution that, he had given his Report voluntarily, as per Ex.P.13 identifying the voice of the accused No.1 and 2.
68. It is also worthy to mention that, according to PW1, the Solution did not turn pink, when the hands of accused No.1 were subjected to hand wash, but, the evidence of PW3 Chemical Examiner, would indicate 41 Spl.C.C.No.445/2016 that phenolphthalein powder was found in the hand wash of accused No.1. It is not the case of the prosecution that, accused No.1 had touched the tainted notes, but, it is the case of the prosecution that, accused No.1 had instructed PW1, to keep the amount beneath a file, which was later obtained by accused No.3.
69. Further, PW7 - IO during his crossexamination on behalf of accused No.3 has stated that, accused No.3 also had not touched the tainted amount. The relevant portion in para 182 of the evidence of IO reads as: "3 ನನನ ಆರನನನಪ ಚದಲಕನ ಬದಯ ಬದಗಲನರನ ತನಗನದರ ತನನ ಸನಟನಲಲ ಕರಳತರ ಎಡಭದಗದ ಮರಅಭದಗದ ಡದಡಶರ ಬನನನಡರನಲಲ ಹಣ ಇರರವವದನರನ ತನನನರಸ ಖದತದಪಡಸದರರ, ಆದರನ ಅವರರ ಹಣವನರನ ಮರಟಟಲಲ". That being the case, how phenolphthalein powder was detected in the hand wash of accused No.1 and accused No.3, was also not clarified by the prosecution, either during the evidence of PW3 - Chemical Examiner, or during the evidence of PW7 IO. Apart from this, PW3 - Chemical Examiner, has admitted that, when a person whose hands were sprinkled with phenolphthalein powder, touches another person, the contents would be detected in the hand wash of that another person also. 42 Spl.C.C.No.445/2016
70. PW6 - Rajappa and PW9 - Bhagyamma are the land owners, the land in respect of which the entire allegation of bribe is rested upon. PW6 Rajappa could not be subjected to crossexamination due to his death and therefore, his evidence in examinationinchief cannot be considered. PW9 - Bhagyamma though admitted her signature in Ex.P.2, has categorically stated that, she had neither seen PW1, nor the accused persons. As such, her evidence is not helpful to the case of the prosecution.
71. PW8 - N. Bhargava, another panch witness being an independent witness, his evidence equally assumes much importance. It is worthy to note, that PW8 has not supported the case of prosecution. He has categorically denied that, PW1 had brought Rs.8,00,000/ to produce before the IO. There is absolutely no corroboration of the evidence of PW2 by PW8.
72. As already stated above, the PW7 - IO had not seized the mobile phone of the PW1. The learned Counsel for accused No.1 relied on the decision reported in (2019) 5 RCR (cri) 785 (DB) - State of Maharashtra v/s. Ramdas Rangnath Shinde, 43 Spl.C.C.No.445/2016 and submitted that, when the mobile phone containing alleged conversation was not taken to custody, and when voice of accused was not obtained, it creates a series doubt with regard to manipulation of conversation.
73. The voice recorder used at the time of trap, has also not been produced. The CD relied upon by PW7, had not been sent to FSL. Therefore, it is not safe to rely upon the CD at MO17, the contents of which are allegedly transmitted as per Ex.P.20, though IO has produced 65B Certificate in respect of MO17. The learned Counsel for accused No.1 relied on the decision reported in (2015) 3 Supreme Court Cases 123 - Sanjaysinh Ramrao Chavan v/s. Dattatray Gulabrao Phalke and others, and submitted that, Source and Authenticity are the two key factors, for an electronic evidence, and when the voice recorder was not subjected to analysis, the alleged translated version cannot be relied upon. The learned Counsel for accused No.1 also relied on the decision reported in (2020) 7 Supreme Court Cases 1 - Arjun Panditrao Khotkar v/s. Kailash Kushanrao Gorantyal and others and submitted that, production of 44 Spl.C.C.No.445/2016 Certificate under Sec.65B (4) is mandatory, when original is not produced.
74. The learned Counsel for accused No.1 relied on the decision reported in (2014) 10 Supreme Court Cases 473 - Anvar P.V v/s. P.K. Basheer and Others and submitted that, 65B Certificate must accompany electronic record like CD, VCD, pen drive etc., which contains the statement which is sought to be given as secondary evidence, and in the absence of such Certificate, secondary evidence of electronic record cannot be admitted in evidence.
75. While appreciating the evidence on record, I am also guided by the decisions relied upon by the learned Counsel for accused No.1 to 3. Relying on the decision reported in Criminal Appeal No.261 of 2022 K. Shantamma vs. State of Telangana, decided on 21/02/2022, counsel for accused No.1 to 3 submitted that, the proof of demand of bribe by a public servant and its acceptance by him is, sine quo non for establishing the offence under Section 7 of the PC Act, and that Hon'ble Apex Court has reiterated the established position of 45 Spl.C.C.No.445/2016 law that, failure of the prosecution to prove the demand for illegal gratification, would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act, would not entail his conviction thereunder.
76. Learned Counsels for accused No.1 to 3 relied on the decision reported in [(1956) SCR 183], Ram Krishan and another vs. The State of Delhi , and submitted that, there must be proof, that the public servant adopted corrupt or illegal means and thereby obtained for himself or for any other person, any valuable thing or pecuniary advantage.
77. Learned Counsels for accused No.1 to 3 relied on the decision reported in [(1995) 3 SCC 567], M.W. Mohiuddin vs. State of Maharashtra, and submitted that, whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage, by way of acceptance of the bribe, depends on the facts and circumstances of each case.
78. Learned Counsels for accused No.1 to 3 relied on the decision reported in [(1997) 9 SCC 477], C.K. Damodaran Nair 46 Spl.C.C.No.445/2016 vs. Govt. of India, and submitted that, so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned, prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage, by corrupt or illegal means or by otherwise, abusing his position as a public servant and that too without the aid of the statutory Presumption under Section 4(1) of the Act, as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act.
79. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2009) 6 SCC 587, A. Subair vs. State of Kerala, and submitted that, primary requisite of an offence under Section 13(1)(d) of the Act is, proof of a demand or request of a valuable thing or pecuniary advantage from the public servant and in other words, in the absence of proof of demand or request from the public servant, for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.
47 Spl.C.C.No.445/2016
80. Learned Counsels for accused No.1 to 3 relied on the decision reported in Criminal Appeal (SJ) No.383 of 2014, Ram Lakshman Prasad vs. State of Bihar by Vigilance, on 16/03/2016, and submitted that, demand or special efforts for obtaining bribe by the public servant, is necessary under Section 13(1)(d) read with 13(2) of the PC Act, 1988.
81. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2015) 10 SCC 152, P. Satyanarayana Murthy vs. District Inspector of Police, State of A.P. and submitted that, mere possession and recovery of currency notes from an accused, without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act, and in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage, cannot be held to be proved.
82. Learned Counsels for accused No.1 to 3 relied on the decision reported in 2011 SCC Online Del 5501 , Runu Ghosh vs. State by CBI, and submitted that, the kind of behaviour 48 Spl.C.C.No.445/2016 which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing", without public interest, needs to be spelt out from the Prosecution evidence.
83. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2014) 13 SCC 55 , B. Jayaraj vs. State of A.P., and submitted that, in so far as the offence under Section 7 is concerned, it is a settled position in law, that demand of illegal gratification is sine qua non, to constitute the said offence and mere recovery of currency notes, cannot constitute the offence under Section 7, unless it is proved beyond all reasonable doubt, that the accused voluntarily accepted the money knowing it to be a bribe.
84. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2017) SCC Online SC 742, Mukhtair Singh vs. State of Punjab, and submitted that, the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, is indispensable. It is also submitted by the learned Counsels that, in A. Subair vs. State of Kerala, it was propounded that the prosecution, in order to 49 Spl.C.C.No.445/2016 prove the charge under the above provisions, has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent.
85. Learned Counsels for accused No.1 to 3 relied on the decision reported in [Criminal Appeal Nos.100101 of 2021], N. Vijayakumar vs. State of Tamil Nadu , and submitted that, it is well settled that, mere recovery by itself cannot prove the charge of the prosecution against the accused, and while considering the charges under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988, it has to be proved beyond reasonable doubt, that accused voluntarily accepted money, knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes, is not sufficient to constitute such offence.
86. Learned Counsels for accused No.1 to 3 relied on the case in CRA 161/2019, Sanjay Dubey vs. State of Chhattisgarh, decided on 17/12/2019 and submitted that, the Law has always favoured the presence and importance of a shadow 50 Spl.C.C.No.445/2016 witness in the trap party, not only to facilitate such witness to see, but also overhear what happens and how it happens also, and the corroboration by the trap witness is essential, in this type of cases.
87. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2011) 6 SCC 450, State of Kerala and others vs. C.P. Rao, and submitted that, when there was no corroboration of testimony of the complainant, it has to be accepted that, evidence of the complainant cannot be relied on, for demand of illegal gratification, and such evidence cannot be used against the accused, for the purpose of acceptance and Section 20 of the Act, has no application in such circumstances.
88. Learned Counsels for accused No.1 to 3 relied on the decision reported in (2005) 6 SCC 211, Ganga Kumar Srivastava vs. The State of Bihar, and submitted that, the Hon'ble Apex Court had observed that the findings of the courts below were vitiated, as due and proper consideration of the 51 Spl.C.C.No.445/2016 materials on record, and also proper appraisal of evidence was not made.
89. Learned Counsels for accused No.1 to 3 relied on the decision reported in Criminal Appeal No.736 of 2008, State of Kerala vs. P. Muhammed Noushad on 29.06.2016, and submitted that, when the prosecution has not satisfactorily proved the material facts, the accused is entitled to claim the benefit of doubt and hence, he cannot be convicted for the offences in question.
90. Learned Counsels for accused No.1 to 3 relied on the decision reported in AIR 2011 SC 760, Kalyan Kumar Gogoi vs. Ashutosh Agnihotri and another; and submitted that, the term 'hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, and it denotes that kind of evidence, which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Every act done or spoken which is relevant on any 52 Spl.C.C.No.445/2016 ground, must be proved by someone who saw it with his own eyes and heard it with his own ears.
91. Learned Counsels for accused No.1 to 3 relied on the decision reported in 2014 (123) RD855, Smt. Anita Sonkar vs. Smt. Shakuntala Misra;, and submitted that, it is a fundamental rule of evidence that hearsay evidence is not admissible.
92. Learned Counsels for accused No.1 to 3 relied on the decision reported in Criminal Appeal No.3658 of 2002, Udai Bhan vs. State of U.P. delivered on 15.10.2020, and submitted that, in a criminal case the onus lies on the prosecution to prove affirmatively that accused was directly and personally connected with the acts or omission attributable to the crime committed by him, and it is settled proposition of law that act or action of one accused cannot be used as evidence against the other.
93. Learned Counsels for accused No.1 to 3 relied on the decision reported in 2000 (II) CTC 116, Selvi Jayalalitha vs. State of Karnataka, and submitted that, there must be a 53 Spl.C.C.No.445/2016 reasonable ground to believe that two or more persons conspired to commit an offence or an actionable wrong.
94. Learned Counsels for accused No.1 to 3 relied on the decision reported in AIR 1980 SC 439, Shivanarayan Laxminarayan Joshi vs. State of Maharashtra, and submitted that, the offences can only be proved largely from the inferences drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design.
95. Learned Counsels for accused No.1 to 3 relied on the decision reported in Crl. Appeal. 2248/2010, State of NCT of Delhi vs. Shiv Charan Bansal and Ors. decided on 05/12/2019, and submitted that, the essential ingredients of Criminal Conspiracy as per judicial dicta are: (i) an agreement between two or more persons; (ii) agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.
96. Thus, on a meticulous appreciation of entire evidence placed on record, it is seen that there is absolutely no satisfactory evidence, to show demand of bribe by the accused 54 Spl.C.C.No.445/2016 persons. The conversation between the Complainant and the accused No.1, was not even audible to PW2. None of the other witnesses have stated anything about, such a demand of bribe amount by the accused. No credence can be attached to Ex.P.23 to P.25 statements, as the same were obtained by the police, while accused No.1 to 3 were in their custody. Moreover, there is no such admission in the said statements, in favour of the prosecution.
97. There is no satisfactory evidence, to prove even the acceptance of bribe amount, by the accused. The Complainant himself has not supported the prosecution case, with regard to acceptance of bribe amount by the accused. There is no direct evidence before the Court, to show the acceptance of bribe amount by the accused, and the prosecution has failed to establish the actual acceptance of tainted currency notes by the accused. In view of the decisions cited above, unless there is a proof of demand of illegal gratification, mere recovery of the amount, is not sufficient to hold that, the accused had demanded, illegal gratification and accepted the same. 55 Spl.C.C.No.445/2016
98. Though it is stated that, hand wash of accused No.2 and 3 had turned to pink, as held in the decisions cited above, mere touching of the currency notes by the accused, would not be sufficient and on the basis of inference, guilt cannot be proved. Even if the contention of the prosecution, with regard to the acceptance of tainted notes, by the accused persons is accepted for a while, as the prosecution has failed to discharge, the initial burden of proving the demand itself, it cannot be said that the prosecution has established its case, beyond reasonable doubt.
99. It is the specific defence of the accused persons that, there was no necessity for PW1, PW6 and PW9, to meet accused No.1 for their work. PW9 has categorically admitted that, she had neither seen complainant/PW1 nor made any conversation with him. The senior officer of accused No.1 i.e., PW4 has categorically admitted that, there was no necessity for PW1, PW6 and PW9, to meet accused No.1 and 2. As such, the alleged pendency of work of PW1, PW6 and PW9, with the accused persons, is also doubtful.
56 Spl.C.C.No.445/2016
100. In the circumstances, and in view of the aforesaid reasons, therefore, I hold that the prosecution has failed to prove the demand of bribe by the accused persons, which is an essential requirement to constitute the offence under Sec.7 and 13 of Prevention of Corruption Act. Receipt of the tainted notes by the accused as illegal gratification, to do official favour, is also not proved. No satisfactory and convincing evidence is placed by the prosecution, to establish the essential ingredients, to attract the offences under Sec.7, 13(1)(d) r/w. Sec.13(2), Sec.8 of Prevention of Corruption Act 1988. In the circumstances, and for the reasons stated, I answer point No.2 to 4 in the Negative.
101. Point No.5: In view of my findings on point Nos.2 to 4, by extending the benefit of doubt to accused No.1 to 3, I hold that the accused No.1 to 3 are entitled for acquittal. Hence, I proceed to pass the following:
ORDER Acting under section 235(1) of Cr.P.C., accused No.1 - Rudregowda.S. Sannagowdru, and accused No.2 - Andani, are acquitted of the 57 Spl.C.C.No.445/2016 offences punishable under Section 7 and 13(1)(d) r/w. Sec.13(2), and accused No.3 - Mohan Kumar is acquitted of the offence punishable under Sec.8, of the Prevention of Corruption Act 1988.
Their bail bonds and the surety bonds are cancelled.
MO1 Cash of Rs.6,00,000/, and MO2 - Cash of Rs.1,00,000/ are confiscated to the State, MO3 to MO20 being worthless, are ordered to be destroyed, and MO21 and MO22 metal seals are directed to be returned to Lokayukta Police, all after the appeal period is over.
Accused No.1 to 3 are directed to execute personal bonds for Rs.50,000/ each, as per Sec.437A of Cr.P.C., for their due appearance before the Appellate Court, in case if any Appeal is preferred against this Judgment.
(Dictated to the Stenographer directly on computer, typed by her, then corrected, signed and pronounced by me, in the open court, on this 29th day of July 2022).
(Sd/ 29.07.2022) (Vineetha P. Shetty) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru. (CCH79) 58 Spl.C.C.No.445/2016 ANNEXURES List of witnesses examined on behalf of the prosecution:
No. Name P.W.1 : P. Manohar P.W.2 : T.N. Ravi P.W.3 : Dr. Ramesh @ Thirumalesh D.H. P.W.4 : Homanna P.W.5 : K. Suresh P.W.6 : Rajappa P.W.7 : M.R. Sudhir P.W.8 : N. Bhargava P.W.9 : Bhagyamma
List of documents exhibited on behalf of the prosecution:
Exhibit No. Description of the document Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.2 : Authorization Letter Ex.P.2(a) : Signature of Bhagyamma Ex.P.2(b) : Signature of Rajappa Ex.P.2(c) : Signature of PW7 Ex.P.3 : Entrustment Mahazar Ex.P.3(a) : Signature of PW1 Ex.P.3(b) : Signature of PW2 Ex.P.3(c) : Signature of PW7 Ex.P.3(d) : Signature of PW7 Ex.P.3(e) : Signature of PW7 Ex.P.4 : Trap mahazar 59 Spl.C.C.No.445/2016 Ex.P.4(a) : Signature of PW1 Ex.P.4(b) : Signature of PW2 Ex.P.4(c) : Signature of PW7 Ex.P.4(d) to (g) : Signature of PW7 Ex.P.5 : Details of Currency Notes Ex.P.5(a) : Signature of PW1 Ex.P.5(b) to (d) : Signature of PW7 Ex.P.6 : Statement given by PW1 to IO Ex.P.7 : Transcription of the Voice Record Ex.P.7(a) : Signature of PW2 Ex.P.7(b) & (c) : Signature of PW7 Ex.P.8 : Prosecution Sanction Order Ex.P.9 : Prosecution Sanction Order Ex.P.10 : Report of CW8 Ex.P.10(a) : Signature of PW7 Ex.P.11 : Chemical Examination Report Ex.P.11(a) : Signature of PW3 Ex.P.11(b) : Signature of PW7 Ex.P.12 : Sec.65B Certificate Ex.P.12(a) : Signature of PW1 Ex.P.13 : Report of PW4 Ex.P.13(a) : Signature of PW4 Ex.P.13(b) : Signature of PW7 Ex.P.13(c) : Signature of PW8 Ex.P.14 : Letter of BDA Ex.P.14(a) : Informal Note Ex.P.14(b) : Requisition Ex.P.14(c) & 14(d) : Signature of PW6 Ex.P.15 : Letter of Director General of Police 60 Spl.C.C.No.445/2016 Ex.P.16 : Charge Sheet Certificate of PW5 Ex.P.16(a) : Signature of PW5 Ex.P.17 : FIR Ex.P.17(a) & (b) : Signature of PW7 Ex.P.18 : Informal Note Ex.P.18(a) : Signature of PW7 Ex.P.19 : Rough Sketch Ex.P.20 : Transcription of the conversation Ex.P.20(a) : Signature of PW7 Ex.P.21 : Informal Note Ex.P.21(a) : Signature of PW8 : Certified copy of Attendance Ex.P.22 Register Ex.P.22(a) : Signature of PW8 Ex.P.23 : Explanation of Accused No.1 Ex.P.23(a) : Signature of PW7 Ex.P.23(b) : Signature of PW8 Ex.P.24 : Explanation of Accused No.2 Ex.P.24(a) : Signature of PW7 Ex.P.24(b) : Signature of PW8 Ex.P.25 : Explanation of Accused No.3 Ex.P.25(a) : Signature of PW7 Ex.P.25(b) : Signature of PW8 Ex.P.26 : Acknowledgement Ex.P.26(a) : Signature of PW8 Ex.P.27 : PF No.28/2015 Ex.P.27(a) : Signature of PW7 Ex.P.28 : 65B Certificate Ex.P.28(a) : Signature of PW7 Ex.P.29 : Letter of Police Inspector 61 Spl.C.C.No.445/2016 Ex.P.29(a) : Signature of PW7 Ex.P.30 : Letter of Janaki Travel Agencies Ex.P.30(a) : Signature of PW7 : Service Particulars of Accused Ex.P.31 No.1 and 2 Ex.P.31(a) : Signature of PW7 Ex.P.32 : Letter of Idea Cellular Ex.P.32(a) : Signature of PW7 Ex.P.33 : Transcription of conversation Ex.P.33(a) : Signature of PW7 Ex.P.33(b) : Signature of PW8 Ex.P.34 : Sample Seal of English letter "O" Ex.P.34(a) : Signature of PW7 Ex.P.34(b) : Signature of PW8 Ex.P.35 : Acknowledgment from Bhargav Ex.P.35(a) : Signature of PW8 Ex.P.36 : Sample Voice Mahazar Ex.P.36(a) : Signature of PW7 Ex.P.36(b) : Signature of PW8 Ex.P.37 : PF No.71/2015 Ex.P.37(a) : Signature of PW7 Ex.P.38 : Certificate of PW7 Ex.P.38(a) : Signature of PW7 Ex.P.39 : Statement of PW8 Ex.P.40 : Further statement of PW8
List of witnesses examined on behalf of the defence:
NIL 62 Spl.C.C.No.445/2016 List of documents exhibited on behalf of the defence:
NIL Material Objects marked by Prosecution:
No. Description
MO1 : Cash of Rs.6,00,000/
MO1(a) : Cover containing cash
MO1(b) : Sealed packet
MO2 : Cash of Rs.1,00,000/
MO2(a) : Cover containing cash
MO3 : CD
MO4 : Sample Solution
MO5 : PW2's hand washed Solution
MO6 : CD
MO7 : Sample Solution
MO8 & 9 : A2's hand washed Solution
MO10 : Sample Solution
MO11 & 12 : A3's hand washed Solution
MO13 : Sample Solution
MO14 & 15 : A1's right hand washed Solution
MO16 : Cotton Cloth
MO17 to 20 : CDs
MO21 & 22 : Metal seals
(Sd/ 29.07.2022)
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (P.C.Act),
Bengaluru.
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