Bangalore District Court
The State Of Karnataka vs Rathnakar Shetty on 1 September, 2017
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 1st day of September 2017
Spl. C.C.No.34/2013
COMPLAINANT The State of Karnataka,
By Police Inspector,
Karnataka Lokayuktha Police
Wing, City Division,
Bengaluru.
(Rep. by Spl.Public
Prosecutor)
-vs-
ACCUSED 1. Rathnakar Shetty,
Aged 40 years,
Police Inspector,
Amruthahalli Police
Station, Bengaluru
City.
(By Advocate- Sri V.B.Nayak)
2. Umran Khan Suhel,
PC-8042,
Aged 40 years,
2 Spl.C.C.No.34/2013
Sampigehalli Police
Station,
Bengaluru City.
(By Advocate-Sri Raghunath)
1. Nature of Offence Offence punishable under
Sec.7 of the Prevention of
Corruption Act, 1988 & 120-
B IPC
2. Date of 04.09.2011
Commission
of offence
3. Date of First 07.09.2011
Information Report
4. Date of arrest 07.09.2011
5. Date of 20.04.2017
commencement of
recording of
evidence
6. Date of 20.07.2017
closing of evidence
7. Date of
pronouncement of 01.09.2017
Judgment
8. Result of the case The accused No.1 & 2 are
acquitted under section
235(1) of Cr.P.C. of the
offence punishable under
Sec.7 of the Prevention of
Corruption Act, 1988 &
Sec.120-B of IPC.
3 Spl.C.C.No.34/2013
JUDGMENT
The accused No.1 & 2 have been charge sheeted for the offence punishable under Sec.7, of the Prevention of Corruption Act, 1988 & Sec.120-B of IPC.
2. The prosecution case is that:
The complainant-Noor Ahamed, is having sewing machines godown in Shivajinagar and Jalahalli cross. The accused No.1 was then working as Police Inspector, Amruthahalli Police station, Bangalore City and accused No.2 was then working as Police constable-8042, Sampigehalli Police station, Bangalore City. On 2.9.2011, the accused No.1 visited the go-down of the complainant at Shivajinagar, and after checking, put a lock to the go-down and kept the keys with him. Thereafter, the accused No.1 took the complainant along with him to the go-down situated at Jalahalli cross. There also, after checking the go-down, he put a lock and kept the keys with him. Thereafter, the accused No.1 brought the complainant to Amruthahalli Police station and illegally detained him in the Police station. On 3.9.2011, the accused No.1 has made a demand for bribe of Rs.10 lakhs by making signs with his hand fingers. The complainant, thinking that he 4 Spl.C.C.No.34/2013 demanded Rs.10,000/-, arranged for Rs.10,000/- through his son Mohammed Javid Ahmed-CW2 and when he was about to pay Rs.10,000/- to accused No.1, he scolded him saying that the demand amount was Rs.10 lakhs and not Rs.10,000/-. Since the complainant did not pay Rs.10 lakhs bribe, on 4.9.2011, the accused No.1 through his staff i.e. CW10, 11, 12 & 13 has illegally seized 35 sewing machines from the go-down of the complainant situated at Jalahalli cross and kept it in Amruthahalli Police station. After negotiations, the accused No.1 agreed to pay Rs.50,000/- as bribe for releasing the 35 sewing machines. Since the complainant was not willing to pay the bribe amount, on 5.9.2011, he met CW51-V.Anil Kumar, PSI, Karnataka Lokayuktha and orally informed him about the demand of bribe by the accused No.1, whereupon he gave the voice recorder to the complainant with instructions to record the conversation. On 6.9.2011, the complainant once again met the accused No.1 and asked him to return the go-down keys. The accused told the complainant to speak with the accused No.2 and gave his mobile phone number. Accordingly, the complainant spoke with the accused No.2 through his mobile phone, whereupon he asked the complainant to come to a Hotel situated at Hegdenagar. On the same day at about 12.30 p.m., the 5 Spl.C.C.No.34/2013 complainant met the accused No.2 whereupon he told the complainant to pay the bribe amount of Rs.5 lakhs to settle the matter. The complainant pleaded difficulty. After negotiations, the demand amount was reduced to Rs.75,000/-. The complainant has recorded the conversation with accused No.1 & 2. On 7.9.2011, at about 10 a.m., the complainant presented the written information as per Ex.P1 before CW51-Police Inspector who arranged for the trap. Along with the complaint, he produced the Digital Voice Recorder containing the recorded conversation.
3. CW5-T.C.Girimurthy & CW6-Ramu N. the employees of KHB were secured to act as witnesses for the Trap. The complainant produced 50 currency notes denomination of Rs.1000/- (Rs.50,000/-). The serial numbers of the currency notes were recorded in a white sheet as per Ex.P4. The said currency notes were smeared with phenolphthalein powder. CW6-Ramu after verifying and counting the tainted currency notes placed it in the right side pant pocket of the complainant. Both the hand fingers of CW6 were made to dip in sodium carbonate solution. The said solution becomes pink colour. The I.O has demonstrated the chemical reaction of the 6 Spl.C.C.No.34/2013 phenolphthalein powder when it comes in contact with sodium carbonate solution. The voice recorder produced along with the complaint was played. The conversation was in Urdu language. The contents of the voice recorder were converted to CD and transcript into writing. One duplicate CD was prepared. The original CD was seized and labeled as Article No.3. Step by step all the events were video-graphed. The contents of the video were converted to CD. The Complainant was told by the I.O to make a phone call to accused No.2 through his mobile phone to confirm the place of visit. While speaking, loud speaker was switched on and recorded the conversation. The conversation recorded in the mobile phone was converted into CD and transcript into writing. All the seized articles were sealed with metal seal by using the English letter 'U'. Since the complainant told the I.O that if any one of the witnesses accompanied him while going to the accused to pay the bribe amount, he may get doubt and as such, he will take his relative Tanveer along with him. CW5-Girimurthy was instructed to follow the complainant and Tanveer at some distance and to observe what transpires between them. The complainant was instructed to give signal by removing his spectacles, if the accused received the amount. The button camera and the voice 7 Spl.C.C.No.34/2013 recorder were given to the complainant with an instruction to switch it on while approaching the accused to give money and to record the conversation/ scene. CW3- Mohammed Tanveer was instructed to go along with the complainant in his scooter and to observe what transpires between the complainant and the accused. The Entrustment Mahazar was prepared as per Ex.P2 and obtained the signatures of the witnesses. On 7.9.2011 at about 1.30 p.m., all the Trap Team Members including the complainant, two panch witnesses and Mr.Tanveer left for Hegdenagara circle. The complainant & Mr.Tanveer proceeded in Honda Activa Scooter, whereas the other Trap Team Members proceeded in a Government vehicle. The vehicle was parked at some distance of Hegdenagar circle. It was about 2.15 p.m. By that time, one Mr.Zabbi-CW4 who was a friend of accused No.2 while passing through, had questioned Mr.Tanveer as to why he was standing in that place and who are all those persons and went away. The complainant requested the I.O to send Tanveer alone with him and send the shadow witness CW5-Girimurthy after sometime. Accordingly, the complainant and Mr.Tanveer proceeded towards Hegdenagara circle and the remaining Trap Team Members were standing secretly nearby Hegdenagara circle. By that time, one person came 8 Spl.C.C.No.34/2013 to the spot in a green colour Suzuki Fiero motor bike and was talking with the complainant and Tanveer. They were standing nearby the tea hotel situated opposite to the bus stand. While speaking to the complainant and Tanveer, the said person was also talking with somebody in his mobile phone. Till 3.30 p.m. the said person was standing with the complainant and Tanveer and thereafter went away in his motor bike. The complainant and Tanveer came to the spot where the Trap Team Members were standing. On an enquiry, the complainant and Tanveer told the I.O that, Zabbi alone came to the spot in his Suzuki Fiero motor bike and informed them that they had a doubt about the presence of Lokayuktha Police & being a friend of accused No.2 had informed him, as such accused No.2 had not come to the spot and went away. The conversation made with the said person was recorded in the button camera and voice recorder. The I.O has made efforts to secure the presence of accused No.2 but went in vain. The I.O along with the complainant, two witnesses and his staff, came to Amruthahalli Police station where the accused No.1 was working. He made efforts to secure the presence of accused No.1 through SHO of Amruthahalli Police station but he was not available. The I.O has seized one blank paper with signature of the 9 Spl.C.C.No.34/2013 complainant, documents relating to Crime No.112/2010 of Amruthahalli Police station, the go-down keys of the complainant which was kept in the table drawer of accused No.1 and one rough book. The complainant has identified 35 sewing machines which were alleged to have been seized from his go-down. The entire proceedings were reduced into writing and Failure Trap Mahazar was prepared as per Ex.P3 in Amruthahalli Police station. The I.O has recorded the statement of the complainant and other witnesses. He got identified the voice of accused No.1 & 2 through CW29- M.N.Chandrappa, Assistant Commissioner of Police, Sampigehalli Police station, Bengaluru, by playing the CD containing the conversation between the complainant and the accused persons. He gave requisitions to the 17th ACMM to record the statements of CWs-2, 3, 8, 9, 10, 11, 12, 13 14, 20 & 21 u/s 164 of Cr.P.C. The I.O got identified the properties which were subjected to P.F.No.73/2011 & 74/2011 in Crime No.112/2010 of Amruthahalli P.S which were in the court custody with the permission of the Magistrate and Mahazar was prepared as per Ex.P6 in that regard. The I.O has obtained the call details of the complainant and accused No.1 & 2. The I.O has obtained the service particulars of accused No.1 & 2. The I.O has obtained the sample voice of accused No.1 & 2 10 Spl.C.C.No.34/2013 in the presence of the witnesses & the voice recorder containing the sample voice was converted to CD and sent to FSL-Madiwala, Bangalore with questioned recordings for Voice Analysis Test. The Scientific Officer has opined that, comparison of sample voice of accused No.1 & 2 with questioned recordings is not possible. Again he sent the sample voice of accused No.1 & 2 with questioned recordings to All India Institute of Speech & Hearing for Voice Analysis Test. He received a Report that the Voice Analysis Test could not be done as they do not have Experts in Forensic Voice Assessment knowing Urdu language. Thereafter, the I.O sent the sample voice of accused No.1 & 2 with questioned recordings to Truth Labs and obtained Report as per Ex.P10. The I.O has obtained the service particulars of accused No.1 & 2, their explanation in writing and certified copy of the order sheet in Crime No.112/2010 of Amruthahalli Police station from CMM Court, Bangalore. After completion of investigation, the I.O sent the Final Report to the Competent Authority seeking sanction to prosecute the accused No.1 & 2. After obtaining the Sanction Order from the Competent Authority for prosecution of the accused No.1 & 2, he filed charge sheet before the Court on 10.1.2013 for the offence 11 Spl.C.C.No.34/2013 punishable under Sec.7 of the Prevention of Corruption Act, 1988 & Sec.120-B of IPC.
4. My Predecessor-in-office has taken cognizance of the offence. The accused No.1 & 2 are enlarged on bail. After hearing, the charge was framed for the offence punishable under Sec. 7 of the Prevention of Corruption Act, 1988 & Sec.120-B of IPC. The Charge was read over and explained to the accused No.1 & 2. The accused No.1 & 2 pleaded not guilty and claimed to be tried.
5. During the trial, the prosecution has examined in all 5 witnesses as PWs.1 to 5 and got marked 33 documents as Ex.P1 to Ex.P33 and 8 Material Objects as MO1 to 8. The accused No.1 & 2 were examined under section 313 of Cr.P.C. for the purpose of enabling them to explain the circumstances existing against them. The accused No.1 & 2 denied all the incriminating evidence available against them. The accused No.1 & 2 have not chosen to lead any defense evidence. I have heard the arguments and perused the records.
6. The Learned Counsel appearing for the accused in support of his arguments has placed reliance on the following decisions:
12 Spl.C.C.No.34/20131. 2012(2) KCCR 1157; Sri Hanumanthappa -v- State of Karnataka.
2. 2007(1) Karnataka.L.J. 227(SC);
V.Venkata Subba Rao -v- State
3. AIR 2007 Supreme Court 3213;
Ganapathy Sanya Naik -v- State of Karnataka 4. AIR 1997 Supreme Court 666; Trilok Chand Jain -v- State of Delhi 5. 2015 (1) KCCR 898 Sri
N.A.Suryanarayana @ Suri -v- State by Inspector of Police, CBI/SPE, Bangalore
6. 1988 Cri.L.J. 152= AIR 1987 Supreme Court 2402; G.V.Nanjundiah -v- State (Delhi Administration)
7. (2014) 2 Supreme Court Cases 1; Lalita Kumari -v- Government of Uttar Pradesh & others
8. unreported Judgment of Hon'ble High Court of Karnataka, Bangalore in Writ Petition No.21782 of 2014; Sri C.Mruthunjayaswamy-v- State by Karnataka Lokayuktha Police & ors.
9. unreported Judgment in Criminal Petition No.15461/2011; Sri Ramesh Desai - v- The State of Karnataka by Raichur Lokayukta P.S Raichur 13 Spl.C.C.No.34/2013
10. 2013(3) KCCR 1788; M.Manjunath -v-
State by Lokayuuktha Police, Mysore
11. AIR 2015 Supreme Court 3060;
Nanjappa -v- State of Karnataka
12. 2015 SAR (Criminal ) 454; Tomaso Bruno & Anr. -v- State of U.P
13. 2013 (6) Karnataka.L.J. 419;
Smt.K.Chandrika -v- State by Central Bureau of Investigation, ACB, Bangalore
14. (2010) Supreme Court Cases 450;
Banarsi Dass -v- State of Haryana
15. unreported Judgment of Hon'ble High Court of Karnataka, Bangalore in Criminal Petition No.452/1998; Krishnegowda -v- The Inspector of Police, Karnataka Lokayuktha, Chikkamagalur
16. unreported Judgment of Hon'ble High Court of Karnataka in Criminal Petition No.1614 of 2006; Prakash @ Prakash K.Dongre -v- The State of Karnataka, rep. by Police Inspector, Lokayuktha Police, Bijapur.
7. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
14 Spl.C.C.No.34/20131. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 & 2 being the public servants, working as Police Inspector, Amruthahalli Police station, Bengaluru City and Police Constable-8042 Sampigehalli Police Station, Bengaluru City respectively, hatched a criminal conspiracy to do an illegal act and in furtherance of the conspiracy, demanded amount of Rs.50,000/-
as illegal gratification from CW1- Noor Ahmed as a motive or reward to show an official favour in the matter of releasing 35 sewing machines which have been illegally seized from the go-down of CW1 situated at Jalahalli cross and to return the go-down keys and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988 & Sec.120-B of IPC?
2. What order?
8. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: AS PER FINAL ORDER.
for the following:
REASONS
9. POINT No.1 :. The prosecution has examined
CW1-Noor Ahamed as PW1. PW1 is the complainant. PW1 in his evidence has deposed that, for the last 30 years, he is doing trade in sewing machines and he is having a 15 Spl.C.C.No.34/2013 sewing machines shop at Shivajinagar and go-down at Jalahalli cross. Six years back, when his 40 sewing machines were missing, he approached several Police stations and enquired with the police about the missing of sewing machines. He visited Amruthahalli Police and met accused No.1. He was told by accused No.1 that the sewing machines were seized and a release order has to be obtained from the Court. Thereafter, when he approached a lawyer for getting release of the sewing machines, he demanded Rs.2.5 lakhs for getting the necessary orders from the Court. As he was not having such a huge amount, he came back. Somebody told him to approach the Lokayuktha Police who will help him in getting the release of the sewing machines. Accordingly he approached the Lokayuktha Police who obtained his signatures on some of the papers. He signed those documents without going through its contents. He does not know reading and writing of Kannada language. The Lokayuktha Police have not done any procedure in his presence in the Lokayuktha office. Fifteen days thereafter, he got released the sewing machines through some other lawyer. PW1 further deposed that, the Lokayuktha Police had not taken him to any of the Police stations nor drawn the Pre-Trap Mahazar and Trap Mahazar. He did not lodge any complaint against 16 Spl.C.C.No.34/2013 the accused No.1 & 2 before Lokayuktha Police alleging that they demanded illegal gratification for releasing of the sewing machines. The Lokayuktha Police have not laid any trap. He has not given any statement before Lokayuktha Police. However, he admits his signature on the complaint. The complaint dated 7.9.2011 is marked as Ex.P1 and his signature is marked as Ex.P1 (a).
10. PW1 has turned hostile. He has not supported the prosecution case. The learned Spl.P.P. cross-examined PW1 at length. But nothing useful to the case of the prosecution is elicited during the course of cross- examination. However, during the course of cross- examination, PW1 has admitted his signature on the Pre- Trap Mahazar-ExP2 & Failure Trap Mahazar-Ex.P3. PW1 has denied each and every suggestion made by the Learned Spl.P.P. except his signature on Ex.P2-Pre-Trap Mahazar & Ex.P3-Failure Trap Mahazar.
11. The prosecution has examined CW5- T.C.Girimurthy (shadow witness) as PW2. PW2 has deposed about securing of his presence to the Lokayuktha Police station to act as witness in the trap, producing of Rs.50,000/- by the complainant which were smeared with 17 Spl.C.C.No.34/2013 phenolphthalein powder, recording of serial numbers of the currency notes, counting of tainted currency notes by PW6- Ramu, washing of his hand fingers in sodium carbonate solution which turned to pink colour, playing of voice recorder produced along with the complaint, converting the contents of it to CD & transcript into writing, instructions given by the Lokayuktha Police to the complainant and preparing of Pre-Trap Mahazar as per Ex.P2. PW2 has further deposed that, at about 1.30 p.m., he along with all the Trap Team Members, the complainant, CW3- Mohammed Tanveer & CW6-Ramu left for Hegdenagara circle, in a Government vehicle. When they were standing near Hegdenagara circle secretly, a person by name Zabbi came and spoke with the complainant. He was standing far away from the place where the complainant was standing and as such he could not hear the conversation between the complainant & Zabbi. All of a sudden, Zabbi went away without receiving the money. Thereafter, the complainant came to the spot where the Lokayuktha Police was standing and told that Zabbi had not received the amount as he had a doubt about the presence of Lokayuktha Police. They came back to Lokayuktha office, wherein his statement, statement of the complainant and statement of CW3-Tanveer was recorded. The voice 18 Spl.C.C.No.34/2013 recorder given to the complainant was played in their presence & the contents of it were converted to CD and transcript into writing. Thereafter as per the instructions of the Lokayuktha Inspector, the complainant made a phone call to accused No.2, but he did not pick up the call. At about 5.00 p.m., they all went to Amruthahalli Police station. The accused No.1 was not present in the Police station. The Lokayuktha Inspector made efforts to contact the accused No.1 through his mobile but went in vain. The documents relating to the complainant & go-down keys were seized from the Amruthahalli Police station. Since the trap became unsuccessful, Failure Trap Mahazar was prepared as per Ex.P3 and obtained their signatures. PW2 has further deposed that, on 13.9.2011, once again he was called to Amruthahalli Police station wherein the complainant identified his 35 sewing machines kept in the second floor and a Mahazar as per Ex.P6 was prepared in that regard. PW2 further deposed that, on 16.11.2011, he was once again called to Lokayuktha Police station wherein seizure mahazar was prepared for having seized the CD containing the sample voice of the accused No.1. PW2 has further deposed that, on 23.11.2011 once again he was called to Lokayuktha Police station wherein seizure mahazar was prepared for having seized the CD containing 19 Spl.C.C.No.34/2013 the sample voice of the accused No.2. PW2 further deposed about recording of his statement by Lokayuktha Inspector.
12. During the course of cross-examination made on behalf of the accused, PW2 has stated that during the Entrustment Mahazar he came to know that Amruthahalli Police had seized 35 sewing machines. Further he stated that the CD containing the conversation of the complainant with the accused recorded in the voice recorder was in Urdu language, he is not acquainted with Urdu language, he does not know what were the documents seized from the Amruthahalli Police station. Further he states that he did not give instructions to prepare Ex.P2, P3 & P6 Mahazars. He does not remember in which language the sample voice of accused No.1 & 2 are obtained.
13. The prosecution has examined CW3- Mohammed Tanveer as PW3. He is son-in-law of the complainant. According to the prosecution, PW3 was all along present with the complainant right from the time of filing of the complaint till the laying of trap and he overheard the conversation between the complainant and Mr.Zabbi- a friend of the accused No.2 nearby a Hotel situated at Hegdenagar circle. PW3 has deposed that about 4-5 years 20 Spl.C.C.No.34/2013 back he came to know that the sewing machines were missing from the go-down of his father-in-law. His father- in-law approached the Amruthahalli Police station, whereupon he was told by the Police to get release of the sewing machines from the Court and in that regard, his father-in-law had contacted a lawyer. His lawyer informed that huge amount will have to be spent to get the release order from the Court. His father-in-law was advised by his friend to approach the Lokayuktha Police, as such his father-in-law approached Lokayuktha Police. He did not accompany his father-in-law. He does not know the contents of the complaint. He does not know against whom the complaint was given. The Lokayuktha Police have not recorded his statement nor conducted any proceedings in his presence.
14. PW3 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P. cross-examined PW3 at length, but nothing useful is elicited during the course of his cross-examination. The statement said to have been given by PW3 is marked as Ex.P7. But PW3 has denied giving of such statement.
21 Spl.C.C.No.34/201315. The prosecution has examined CW35- Kum.S.Neeru, Assistant Director, Truth Labs, Bengaluru, as PW4. PW4 has deposed that she has scientifically analyzed the sample voice of the accused No.1 & 2 with the questioned voice and submitted a Report in a sealed cover through proper channel. The Report given by PW4 is marked as Ex.P10. The signature of the witness is marked as Ex.P10 (a). The said Report reveals that the questioned and standard recordings were examined by critical listening to identify the repeated utterances and the utterances were common in the questioned and standard recordings.
16. PW4 was cross-examined at length on behalf of the accused. During the course of cross-examination it was elicited that no certificate under Sec.65 (B) of the Indian Evidence Act was enclosed along with the sealed CD. The date and time of recording was not found in the CD sent to her for scientific examination. She further admits that there is possibility of manipulation while copying from the original device. Further she admits that the Truth Labs being a Private Institution headed by the Director and their services are chargeable and even coming to the Court as a witness, is also chargeable.
22 Spl.C.C.No.34/201317. PW5 is the Investigating Officer. He has deposed regarding registering of complaint, drawing of Entrustment Mahazar, laying of trap against the accused persons which becomes unsuccessful, drawing of Failure Trap Mahazar, seizure of the documents & go-down keys from Amruthahalli Police station, drawing of Mahazar for having identified 35 sewing machines by the complainant, drawing of seizure mahazar for having seized the CD containing the sample voice of the accused No.1 & 2, recording of the statement of the witnesses, etc.
18. PW5 was cross-examined at length. It was elicited during the course of cross-examination of PW5 that the accused No.1 has received so many awards and medals of State, Central & other Public Institutions. Before registering the complaint, he did not verify the antecedents of the complainant. He does not know that the complainant was a MOP criminal (Modus Operandi) & a proclaimed accused in CC No.7755/2003 on the file of IV ACMM, Bengaluru. He does not know that in the States of Karnataka, Andhra Pradesh, Tamil Nadu & Kerala, the complainant is a known receiver of stolen properties. It is further elicited that, before registering the complaint, the voice recorder was given to the complainant to record the 23 Spl.C.C.No.34/2013 conversation. PW5 admits that at the relevant point of time, the accused No.2 was neither working in Amruthahalli Police station nor under the control of accused No.1, and he had not seen the accused No.2 till 23.11.2011 the date on which he obtained his sample voice. It is further elicited from the mouth of PW5 that after verification of the documents in Crime No.112/2010 of Amruthahalli Police station, he came to know that as per the confession statement made by the accused-Hameed, 45 sewing machines were recovered at his instance. PW5 admits that none of the sewing machines were recovered from the go-down of the complainant. The records in Crime No.112/2010 reveal that the properties mentioned in PF.No.73/2011 & 74/2011 were seized on 5.9.2011. PW5 further admits that the sewing machines mentioned in PF.No.73/2011 were recovered from the house of Hameed- accused in Crime No.112/2010 & the sewing machines mentioned in PF.No.74/2011 were recovered from the house of Saleem Pasha. Both the PF.Nos.73/2011 & 74/2011 were reported to the Court on 6.9.2011. PW5 further admits that the records in Crime No.112/2010 reveal that permission was sought for release of the seized sewing machines in favour of the owner but the court has refused to grant permission. PW5 further admits that since 24 Spl.C.C.No.34/2013 the court has refused permission for release of the properties in favour of the owner, police have no power to release it. PW5 further stated that the original device was not enclosed while sending the CD containing the conversation of the complainant and accused No.1 & 2 and the sample voice of accused No.1 & 2 for Voice Analysis Test. PW5 further stated that the FSL, Madiwala has given a Report that, the sample voice of accused No.1 could not be compared with the questioned voice as it is a disguised speech. Similarly, FSL-Madiwala has given a Report that the sample voice of accused No.2 could not be compared with the questioned voice since the speeches are in Urdu language. The opinion given by FSL-Madiwala was confirmed by All India Institute of Speech & Hearing, Mysuru. As against these opinions, the I.O has not made efforts to send the sample voice of accused No.1 & 2 and questioned voice of accused No.1 & 2 to Central FSL- Hyderabad for Voice Analysis Test & opinion. PW5 admits that the opinion of the Truth Labs is subject to payment. However, he denies the suggestion that he got the Report from the Truth Labs by using the name of the Lokayuktha Institution to suit the case.
25 Spl.C.C.No.34/201319. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
20. In the present case, PW1 who is the best person to say regarding demand of illegal gratification and acceptance of the same by the accused for showing an official favour, has turned hostile. He has not supported the prosecution case. He disowns the contents of the complaint. The evidence of PW1 will not help the 26 Spl.C.C.No.34/2013 prosecution to prove the theory of demand of illegal gratification by accused No.1 & 2.
21. PW2 (shadow witness) has not overheard the conversation between the complainant and the accused No.2 regarding demand of bribe. He has not even overheard the conversation between the complainant and Zabbi- a friend of accused No.2. He was standing far away from the place where the complainant was standing and as such he could not overhear the conversation between the complainant and Zabbi. The evidence of PW2 is not supported by the complainant on any material particulars. PW3 who is a close relative of the complainant has also not supported the prosecution case. Absolutely, there is no evidence with regard to demand of bribe by the accused.
22. The prosecution has placed reliance on the Expert Report-Ex.P10 to prove the theory of demand. It is relevant to note that the Opinion of Truth Labs-Ex.P10 is subject to payment. Therefore, it is not safe to rely on the Report of the Truth Labs. Further, it is relevant to note that no certificate u/s 65(B) of the Indian Evidence Act was enclosed along with the sealed CD. Further the original device was not enclosed while sending the CD containing 27 Spl.C.C.No.34/2013 the conversation between the complainant & accused No.1 & 2 for Voice Analysis Test. Under the circumstances, the possibility of manipulation while copying from the original device cannot be ruled out. Further, the Report given by the Truth Labs is only an opinion and it is not corroborated by any independent evidence. Under the circumstances, it is not safe to convict the accused only on the basis of the Report of the Truth Labs.
23. It is well settled that electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine, is supported by the decision of Supreme Court in the case of Anwar P.V. - v- P.K.Basheer and others; (2014) 10 Supreme Court Cases 473.
24. In the present case, MOs4 & 7 are the CDs containing the conversation which is sought to be given as secondary evidence are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the 28 Spl.C.C.No.34/2013 absence of such certificate, these material objects cannot be admitted in evidence.
25. The materials on record reveal that before 7.9.2011, the complainant approached the Lokayuktha Police. During the said visit, the Lokayuktha Police in order to get concrete material to register the case, have given voice recorder to the complainant to record the conversation with accused No.1 & 2. It is well settled that giving of voice recorder to record the conversation with respect to demand of bribe, does not constitute preliminary enquiry, rather it amounts to collecting the evidence against any person accused of and it vitiates the entire investigation.
26. The materials on record reveal that 45 sewing machines found in Amruthahalli Police station were subjected to PF No.73/2011 & 74/2011 in Crime No.112/2010 and those sewing machines were recovered from the house of Hameed & Saleem Pasha, as per the confession statement of Hameed-accused in Crime No.112/2010. The Court has refused to grant permission to release those properties in favour of the owner. The accused No.1 was not competent and empowered to release 29 Spl.C.C.No.34/2013 the properties in favour of the complainant unless there is a Court order. The accused No.2 at the relevant point of time was neither working in Amruthahalli Police station nor under the control of accused No.1. Under the circumstances, the question of accused No.1 & 2 demanding bribe from the complainant for doing an official favour, legally & factually does not arise.
27. The prosecution has miserably failed to prove beyond all reasonable doubt that the accused No.1 & 2 have committed the offence punishable under sections 7 of the Prevention of Corruption Act, 1988 & Sec.120-B of IPC. Hence, I answer Point No.1 in the Negative.
28. POINT NO.2: In the result, I proceed to pass the following:
ORDER The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under S. 7 of the Prevention of Corruption Act, 1988 & Sec.120(B) of IPC and set at liberty. Bail bonds executed by the accused stands cancelled.30 Spl.C.C.No.34/2013
MO6 cover containing the godown key bearing No.1-205 moble is ordered to be returned to the complainant on proper identification.
MOs 1 to 5, 7 & 8 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the judgment writer directly on the computer, after transcription, corrected by me and then pronounced in the open court on this the 1st day of September 2017) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Noor Ahamed PW2 T.C.Girimurthy PW3 Mohammed Tanveer PW4 Kum.S.Neeru PW5 V.Anil Kumar
List of documents marked on behalf of prosecution:
Ex.P1 Complaint Ex.P1(a) Signature of PW.1 31 Spl.C.C.No.34/2013 Ex.P1(b) Signature of PW5 Ex.P2 Pre-Trap Mahazar Ex.P2(a) Signature of PW1 Ex.P2(b) Signature of PW2 Ex.P2(c) Signature of PW5 Ex.P3 Mahazar Ex.P3(a) Signature of the PW1 Ex.P3(b) Signature of PW2 Ex.P3(c) Signature of PW5 Ex.P.4 Currency notes sheet Ex.P4(a) Signature of PW2 Ex.P4(b) Signature of PW5 Ex.P5 Transcription sheet Ex.P5(a) Signature of the PW.2 Ex.P6 Mahazar dt: 13.9.2011 Ex.P6(a) Signature of PW.2 Ex.P6(b) Signature of PW.5 Ex.P7 Statement dated 8.9.2011 Ex.P8 Sanction Order dt: 19.11.2012 Ex.P9 Sanction Order dt: 24.11.2012 Ex.P10 Report with covering letter Ex.P10(a) Signature of PW4 Ex.P11 FIR Ex.P12 Blank paper with signature of complainant Ex.P13 Xerox attested copy of rough book of Amruthahalli P.S Ex.P14 Xerox copies of documents & registers of Amruthhalli P.S duly attested Ex.P15 Report of the ACP Ex.P16 & 17 Requisitions Ex.P18 Intimation dated 12.9.2011 Ex.P19 Requisition Ex.P20 Report Ex.P21 True copy of the Station House 32 Spl.C.C.No.34/2013 Diary from 1.9.11 to 8.9.11 Ex.P22 Requisition Ex.P23 Call details with memo Ex.P24 Service particulars of accused No.2 Ex.P25 Mahazar Ex.P26 Mahazar Ex.P.27 Explanation Ex.P27(a) Signature of PW2 Ex.P28 Report from FSL, Madiwala Ex.P29 Report from All India Institute of Speech & Hearing Ex.P30 Explanation of accused No.1 Ex.P31 Service particulars of accused No.1 Ex.P32 Memo dt: 16.4.2012 Ex.P33 Certified copy of order sheet in Crime No.112/2010
List of material objects marked on behalf of the prosecution:
MO.1 Sample solution Article No.1
MO.2 Hand wash solution of Article No.2
CW6-Ramu
MO.3 CD containing the Article No.4
videograph during
Entrustment Mahazar
MO.4 CD containing the Article No.d6
conversation between the
complainant & Zabbi
MO.5 CD containing the Article No.7
recordings in video of
seizure of godown key,
blank paper containing the
signature of the
complainant
MO.6 Cover containing the
33 Spl.C.C.No.34/2013
godown key bearing No.1-
205 moble
MO.7 Cover containing 4 CDs
MO.8 Cover containing rough
note book
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) 34 Spl.C.C.No.34/2013 Judgment pronounced in the open court(vide separate orders) ORDER Accused No.1 & 2 present. The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under S. 7 of the Prevention of Corruption Act, 1988 & Sec.120(B) of IPC and set at liberty. Bail bonds executed by the accused stands cancelled.
MO6 cover containing the godown key bearing No.1-205 moble is ordered to be returned to the complainant on proper identification.
MOs 1 to 5, 7 & 8 being worthless are ordered to be destroyed after the appeal period is over.
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77)