Bangalore District Court
State Of Karnataka Represented vs Mr.Gangadhar S/O Late Madaiah on 29 February, 2016
IN THE COURT OF THE XXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU
URBAN DISTRICT, BENGALURU CITY. (CCH-24)
Dated this the 29th day of February 2016
PRESENT:
Shri V.G. BOPAIAH, B.Sc.LL.B.,
XXIII Additional City Civil and Sessions Judge
and Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.253/2010
Complainant: State of Karnataka represented
by Police Inspector, Karnataka
Lokayuktha Police Wing City
Division, Bengaluru.
(By Sri D. Ramesh Babu, Special
Public Prosecutor)
V/s
Accused: Mr.Gangadhar S/o Late Madaiah,
48 years (Age as on 09.07.2010),
Typist, Office of the Deputy
Commissioner (Stamps) and
District Registrar, Rajajinagara
Range, 2nd Floor, Sathya
Sankeerna Complex, No.123/30,
1st Main, Rajajinagara Industrial
Town, West of Chord Road,
Bengaluru. Resident of no:25, 1st
Cross, Sharada Colony,
Kamalanagara Main Road,
Bengaluru 79.
(By Sri C.G.Sundar, Advocate)
2 Spl.C.C.253/2010
JUDGMENT
1. CW 15 (PW 6) K.C.Lakshminarayana, Police Inspector then working in Karnataka Lokayuktha, Police Wing, City Wing, Bengaluru has filed this charge sheet dated 09.07.2010 before this Court on 12.07.2010 against the accused for the offence punishable under section 7, for the offence defined under section 13(1)(d) which is punishable under section 13(2) of The Prevention of Corruption Act, 1988 (in short 'the Act').
2. During crime stage the accused was arrested and produced in the home office of this Court on 22.02.2009 and subsequently he was remanded to judicial custody. By the order dated 26.09.2009 of this Court the accused has been enlarged on bail. After the submission of the charge sheet cognizance is taken and the charge sheet came to be registered in Spl.C.C.253/2010. In pursuance of the summons issued by this Court the accused has appeared before this Court and engaged advocate for his defence. By the order dated 3 Spl.C.C.253/2010 27.09.2010 my learned predecessor in office, again the accused has been released on bail. Copy of the charge sheet is furnished to the accused.
3. The case of the prosecution, in brief, is that CW5 (PW5) C.S.Periera is the director of concern called southern power equipment company private limited at Bengaluru. CW 1 (PW 1) Lingaraju was employed in the said concern in the year 2009. In the month of September 2009 the accused was working as Typist in the office of the Deputy Commissioner (Stamps) and District Registrar, Rajajinagara Range. His office was then situated in 2nd floor "Sathya Sankeerna" complex, no:123/30, 1st main road, Rajajinagara Industrial Town, Bengaluru. On 15.09.2009 PW 1 approached the accused in the matter of franking of three bills of exchange of the above concern. At that time, the accused demanded illegal gratification of Rs 1,000/- for each. Thereafter, PW 1 returned to his office and communicated the same to CW 2 (PW 2) D.Dayanand 4 Spl.C.C.253/2010 who then was working in the above concern. Again on 19.01.2009 PWs 1 and 2 approached the accused. On that day also the accused demanded illegal gratification of Rs 3000/-. Feeling offended by the said demand PW1 set law into motion with complaint (Ex P1) lodged with PW 6 on 22.09.2009. On the basis of Ex P1 PW 6 registered the case against the accused in crime no.64/2009 for the above alleged offences and submitted FIR (Ex P21) to this Court in a sealed cover. CW 3 (PW 3) C.Venkataramaiah and CW 4 Krishna Murthy.N are secured by PW 6 as shadow witness and trap witness respectively to the police station of PW 6. PW 1 placed cash of Rs 2,000/- (MO 2) before PW 6. PW 6 got entered the numbers of MO 2 on a sheet of paper Ex P2. PW 6 got prepared solution with water and sodium carbonate powder. PW 6 obtained sample of that solution in the bottle (MO 4). PW 6 got applied phenolphthalein powder on the notes at MO 2. PW 3 placed MO 2 in the right side front packet of pant of PW
1. On the instructions of PW 6 PW 3 immersed fingers 5 Spl.C.C.253/2010 of his hands in the residual solution. The finger wash of PW 3 turned to pink colour. PW 6 seized the finger wash of hands of PW 3 in the bottle (MO 5). PW 1 placed compact disc before PW 6 who in turn got transmitted the contents of compact disc on the sheet of paper (Ex P18). PW 6 instructed PW 1 to give MO 2 to the accused only in the event of demand by the accused. PW 6 also instructed to PW 3 to follow PWs 1 and 2 and to remain with them at the time of PWs 1 and 2 approaching the accused. PW 6 placed pen camera and button camera to PW 1 with instructions to keep the same live at the time of approaching the accused. PW 6 conducted pre trap mahazar (Ex P3) in his police station. During pre trap mahazar PW 6 got flashed photographs (Exs P5 to P13). After pre-trap proceedings on 22.09.2009 PW 6 left his police station along with his staff, CW 4 Krishna Murthy, PW 1 Lingaraju, PW 2 D.Dayananda, PW 3 C.Venkataramaiah destined at the office of the accused which is situated at West of Chord Road, Rajajinagara Industrial Town, Bengaluru on 6 Spl.C.C.253/2010 22.09.2009 at 5.15 p.m. PWs 1 and 2 entered the office of the accused where the accused was found. PW 1 asked about his papers. After franking three bill of exchange the accused hand over the same to PW 1 and demanded money. PW 1 gave MO 2 to the accused. The accused asked PW 1 to keep MO 2 on his table and accordingly PW 1 kept MO 2 on the table of the accused. PW 1 came out of the office of the accused at 05.20 P.M and conveyed the message of acceptance of MO 2 by the accused by scratching the head. Afterwards, PW 6 along with his staff and CW 4 Krishna Murthy entered the office of the accused. The accused was pointed out to PW 6 by PW 1. PW 6 disclosed his identity to the accused. PW 6 got prepared solution with water and sodium carbonate powder. PW 6 obtained sample solution in the bottle (MO 6). On the instructions of PW 6 the accused immersed fingers of his right hand in the solution kept in one bowl and immersed fingers of his left hand in the solution kept in another bowl. Finger wash of right hand not turned to any colour. Finger 7 Spl.C.C.253/2010 wash of left hand of the accused turned to light pink colour. PW 6 seized right hand and left hand finger wash of the accused in the separate bottles. PW 6 questioned the accused about MO 2. In response the accused told that MO 2 is on the top of a almirah. On the instructions of PW 6 CW 4 took out MO 2 from the top of the almirah. PW 6 seized MO 2 and kept the same inside the cover (MO 1). PW 6 questioned the accused about the file pertaining to PW 1. The accused placed the file before PW 6 and PW 6 obtained copies of that file (Ex P23). PW 6 seized copy of the attendance register (Ex P24) maintained in the office of the accused. Since the office of the accused was not suitable to conduct trap mahazar. PW 6 brought the accused along with his staff PWs 1 to 3 and CW 4 to his police station situated at M.S.Building, Bengaluru. In the police station, PW 1 placed the pen camera and button camera. PW 6 got transmitted the contents of button camera and pen camera on the sheet (Ex P19) and uploaded to the computer. PW 6 also got uploaded 8 Spl.C.C.253/2010 the contents of compact disc produced before him by PW 1 along with the complaint to the computer. CW 6 D.S.Rajashekar who was then working as District Registrar, Bengaluru identified the contents of the said compact disc. PW 6 conducted trap mahazar Ex P4. Thereafter, the accused placed his explanation in writing (Ex P25) before PW 6. During trap proceedings PW 6 got obtained photographs ( Exs P14 to P17) stage by stage. PW 6 arrested the accused and produced in the home office of this Court through the escort staff. During seizure of material objects, PW 6 used the seal (MO 3) and handed over to PW 3 with instructions to produce the same before the Court whenever directed. Further investigation disclosed prima facie case and after obtaining the sanction order (Ex P 20) PW 6 has filed the charge sheet. Thus, according to the prosecution, the accused being public servant on 22.09.2009 in order to extend official favour to PW 1 in the matter of franking the bill of exchange repayment of bill amount demanded 9 Spl.C.C.253/2010 and accepted MO 2 in his office between 5.15 and 5.20 PM.
4. On 14.02. 2012 when charge against the accused for the offence punishable under section 7, for the offence under section 13(1)(d) which is punishable under section 13(2) of The Prevention of Corruption Act, 1988 was framed, read over and explained to the accused the accused pleaded not guilty and claimed trial.
5. In support of the above charges, the prosecution has examined CW 1 Lingaraju, CW 2 D.Dayanand, CW 3 C.Venkataramaiah, CW 9 S.N.Jayaram, CW 5 C.S.Pereira and PW 6 K.C.Lakshminarayana respectively as PWs 1 to
6. The prosecution has got marked the complaint as per Ex P1, signature of PW 1 as per Ex P1(a), sheet containing details of currency notes as per Ex P 2, signatures of PW 3 as per Exs P2(a) & 2(b), pre trap mahazar as per Ex P 3, signature of PW 1 as per Ex P3(a), signature of PW 2 as per Ex.P3(b), signatures of 10 Spl.C.C.253/2010 PW 3 as per Exs P3(c) to 3(f), signature of PW 6 as per Ex P3(g), trap mahazar as per Ex P 4, signature of PW 1 as per Ex P4(a), signature of PW 2 as per Ex P2(b), signatures of PW 3 as per Exs P4(c) to 5(l), signature of PW 6 as per Ex P4(m), photographs flashed during pre trap mahazar as per Exs P5 to P13, photographs flashed during trap mahazar as per Exs P14 to P17, sheet of paper containing the transmission of contents of compact disc as per Ex P18, signature of PW 3 as per Ex P18(a), signature of PW 5 as per Ex P18(b), sheet of paper containing the transmission of contents of compact disc during trap mahazar as per Ex P19, signature of PW 3 as per Ex P19(a), signature of PW 6 as per Ex P19(b), sanction order as per Ex P20, signature of PW 4 as per Ex P20(a), FIR as per Ex P21, signatures of PW 6 as per Exs P21 (a) & 21(b), letter from Southern Power Equipment Company Limited dated 15.09.2009 as per Ex P22, copy of the file of Southern Power Equipment Company Pvt Ltd as per Ex P23, copy of two sheets of the attendance register maintained in 11 Spl.C.C.253/2010 the office of the accused as per Ex P24, explanation of the accused as per Ex P25, service particulars of the accused as per Ex P26, xerox copy of the proceedings dated 21.05.1999 of the Inspector General of Registration and Stamps consisting of three sheets as per Ex P27, xerox copy of the proceedings of Government of Karnataka in two sheets as per Ex P28, copy of a letter dated 25.06.2009 touching the allotment of work to the accused as per Ex P29, report of chemical examiner as per Ex P30, sketch of the place of trap drawn by PW 6 as per Ex P31, cover in which MO 2 is placed as per MO 1, cash of Rs 2000/- as per MO 2, metal seal as per MO 3, bottle containing sample solution prepared for the purpose of pre trap mahazar as per MO 4, bottle containing finger wash of hands of PW 3 as per MO 5, bottle containing sample solution prepared for the purpose of trap mahazar as per MO 6, bottle containing right hand finger wash of the accused as per MO7, bottle containing left hand finger wash of the accused as per MO8, another bottle containing left 12 Spl.C.C.253/2010 hand finger wash of the accused as per MO9, cover in which compact disc at MO 11 is placed as per MO 10, compact disc as per MO 11, cover in which MO 13 is placed as MO 12, compact disc as per MO 13.
6. During examination of the accused under section 313 Cr.P.C the accused while admitting his then position as public servant has denied the material incriminating circumstances which appeared against him in the evidence of PWs 1 to 6. According to him, on 19.09.2009 franking work of bills of exchanges are executed. It is his say that on 22.09.2009 when PW 1 approached him he delivered three bills of exchanges duly franked but he has not demanded money. He has not chosen to examine any witnesses on his behalf.
7. Heard the arguments addressed by Sri.D.Ramesh Babu, the learned Special Public Prosecutor who relying upon the evidence of PW 1 and 2 contended that their evidence establishes that in the matter of extending official favour the accused 13 Spl.C.C.253/2010 demanded and accepted MO 2. Relying upon the evidence of PWs 1, 2, 3 and 6 he contended that pre trap mahazar stands established. Relying upon the evidence of PWs 1 to 3 and 6 he contended that seizure of MO 2 from the possession of the accused stands established and since the accused has not placed any material to dislodge the same presumption under section 20 of the Act leans in favour of the prosecution. He contended that the evidence of PW 5 also would support the say of PW 1. Relying upon the evidence of PW 4 he contended that evidence of PW 4 coupled with Ex P20 establishes that the charge sheet is based on valid sanction order.
8. Heard the arguments of Sri.C.G.Sundar, the learned Counsel for the accused. It was contended by him that the evidence of PWs 1 and 2 is not convincing to hold that in the matter of extending official favour the accused demanded and accepted MO 2 from PW 1. Relying upon the cross examination of PWs 1 and 6 he contended that sheet nos 3 and 7 of Ex P23 would show 14 Spl.C.C.253/2010 that the official work of PW 1 was not pending with the accused as on the date of trap which fact dislodges the case of the prosecution. He contended that since there is no evidence to attract the alleged demand and acceptance of MO 2 presumption under section 20 of the Act cannot be raised. He has relied on the decisions in D.Rajendran V/s State by Police Inspector, B.O.I reported in 2004(2) KCCR page 1233, R.Malini V/s State of Karnataka reported in 2012(1) KCCR page 414, Meena (Smt) W/o Balwant Hekme V/s State of Maharashtra reported in 2000 Supreme Court Cases (Cri) page 878, State of U.P V/s Ram Asrey reported in 1990 Supreme Court cases (Crl) page 604 (1990 supplementary SCC 12), State of Uttarakhand V/s Yogendra Nath Arora reported in 2013 AIR SCW page 1887 and Ganapathi Sanya Naik V/s State of Karnataka reported in (2007) 3 Supreme Court Cases (Cri) page
541.
9. I have bestowed my anxious consideration to the submissions made by either side 15 Spl.C.C.253/2010
10. Facts and evidence on record takes me to formulate the following points for determination:
1. Whether the prosecution has established that on 22.09.2009 the accused being public servant working as typist in the office of the Deputy Commissioner (Stamps) and District Registrar, Rajajinagara Range situated in 2nd floor, 'Sathya Sankeerna', complex no.123/30, 1st main road, Rajajinagara Industrial Town, in order to extend official favour to PW1 i.e., in the matter of franking of three bill of exchanges of concerned of PW 5 demanded and accepted illegal gratification of Rs 2,000/- at MO 2 from PW 1 in the office of the accused between 5.15 and 5.20 p.m and thereby committed the offence punishable under section 7 of the Act?
2. Whether the prosecution has established that on the above date, place and time the accused being public servant abused his position as public servant and obtained pecuniary advantage of Rs 2,000/- at MO 2 without public interest 16 Spl.C.C.253/2010 from PW 1 which amounts to criminal misconduct as defined under section 13(1)(d) of the Act and thereby committed the offence punishable under section 13(2) of the Act?
3. What order?
11. My findings are:
Point No 1: In the negative Point No 2: In the negative Point No3: As per the order below for the following:
REASONS
12. Point Nos 1 and 2: For the sake of convenience and in order to avoid repetition of discussion I have chosen to discuss point nos 1 and 2 together.
13. The position of the accused as that of public servant at the time of commission of the above alleged offences is not in dispute and therefore the prosecution is under obligation to discharge its initial burden as per the mandate of section 20 of the Act 17 Spl.C.C.253/2010 which mandates that the charge sheet must be based on valid sanction order. In the track of discharge of that burden the prosecution relies upon the evidence of PW 4 S.N.Jayaram who at the relevant point of time was working as Inspector General of Registration and Commissioner of Stamps, Government of Karnataka, Bengaluru. His evidence that along with the letter dated 10.02.2009 of the Additional Director General of Police, Karnataka Lokayuktha, he received the copy of the complaint, copy of FIR, copy of trap mahazar, copy of pre trap mahazar copy of report of chemical Examiner, copy of sketch of place of trap, copies of statements of PWs 1 to 3 and 5, copies of statements of CW 4, 6, 10, 11, 12, 13 and 14 and records pertaining to allegations leveled against the accused and the copy of the statement of accused is not under challenge. It is his evidence that after appreciating the above records he found satisfied that their existed prima facie materials to hold that the matter is fit for 18 Spl.C.C.253/2010 according sanction and accordingly he accorded sanction at Ex P20. It is also his evidence that by virtue of his office he was empowered to appoint and dismiss the public servant of the cadre of typist and thus he is the competent authority to accord sanction. It is brought out during his cross examination that at the time of alleged commission of offences the accused was on deputation and that the parent department of the accused is Mysuru Lamps Works Limited, Bengaluru. Suggestion made to him during his cross examination suggesting that he is not the competent authority to accord sanction has been denied by him. This defence needs to be appreciated along with Ex P26 which is the service particulars of the accused. Column no.6 of Ex P26 would show that the authority of the rank of PW 4 is the appointing authority who equally is empowered to dismiss the accused from service. Therefore, in the presence of expression in column no.6 of Ex P26 I hold that PW 4 was then the competent authority to 19 Spl.C.C.253/2010 accord sanction. In the decision reported in 2013 AIR SCW page 1887 law is laid down by our Hon'ble Supreme Court that power to repatriate does not embrace within itself the power of removal from the office as envisaged under section 19(1)(c) of the Act. It is laid down that the authority having power to repatriate the deputationist to his present office has no authority to grant sanction for the offence committed while the accused was on deputation. In the case on hand column no.6 of Ex P26 would show that PW 4 was the competent authority to accord sanction. Upon appreciation of his entire evidence I hold that after due application of mind he thought fit to accord sanction and as such Ex P20 is the valid sanction order. Thus, the prosecution has become successful in discharging the said initial burden.
14. The evidence of PW 1 that he set law into motion with his complaint at Ex P1 is not under challenge which fact gets support from the evidence of PW 6 who has deposed that on the basis of the 20 Spl.C.C.253/2010 complaint Ex P1 he registered the case in crime no:64/2009 on 22.09.2009 for the above alleged offences and submitted FIR at Ex P21. That portion of his evidence is not under challenge. His evidence would show that Ex P22 was enclosed to the complaint. The evidence of PW 1 that on the day of lodging complaint he placed MO 2 with PW 6 and thereafter numbers of MO 2 are noted on Ex P2 is not under challenge. This portion of his evidence stands corroborated by the testimony of PWs 2, 3 and 6 who have categorically deposed that numbers of MO 2 are noted on Ex P2. That portion of the evidence of PWs 1 to 3 and 6 is not under challenge. The evidence of PWs 1 to 3 that phenolphthalein powder was applied on MO 2 is also not under challenge. The evidence of PWs 1 to 3 and 6 that solution with water and sodium carbonate powder was prepared and sample of the same in the bottle at MO 4 has been obtained is also not under challenge. The evidence of PWs 1 to 3 and 6 would show that 21 Spl.C.C.253/2010 pre trap mahazar was conducted in the police station of PW 6. Material portion of the evidence of PWs 1 to 3 and 6 touching the pre trap mahazar at Ex P3 is not under serious challenge. Thus, on the basis of the evidence of PWs 1 to 3 and 6 I have no hesitation whatsoever to hold that as primitive step of investigation PW 6 has conducted pre trap proceedings.
15. It is in the evidence of PWs 1 to 3 and 6 that subsequent to pre trap mahazar they proceeded to the office of the accused. The evidence of PW 6 that he along with his staff and PWs 1 to 3 reached near the office of the accused at 5.15 p.m is not under challenge.
16. Regarding the alleged demand and acceptance of MO 2 the evidence of PW 1 is that after his entry to the office of the accused he asked the accused about his papers and in response he was asked by the accused as to how much amount is brought for 22 Spl.C.C.253/2010 which he responded that he brought Rs 2000/- and thereafter he was asked by the accused to keep the said cash on the table and thereafter the accused placed three bills of exchange after franking those three bills of exchange. PW 2 is the shadow witness. The evidence of PW 2 touching the alleged complicity of the accused is that he along with PW 1 entered the office of the accused and after entry to the office of the accused the accused asked PW1 whether money is brought for which PW 1 responded in the affirmative and kept the tainted notes at MO 2 on the table of the accused. It is his evidence that afterwards he along with PW 1 came out of the office of the accused and that he along with PW 1 wiped head with right hand. Whether this portion of the evidence of PWs 1 and 2 gets to the test of credibility has to be appreciated on the basis of their evidence in cross examination and also the contents of the trap mahazar at Ex P4. Brief statement of PWs 1 and 2 touching the alleged demand and acceptance is 23 Spl.C.C.253/2010 found incorporated in page nos 6 and 7 respectively at Ex P4. Page no.6 of Ex P4 in sum and substance is that after the entry of PWs 1 and 2 to the office of the accused the accused spoke to PW 1 and after franking the bill of exchanges delivered the same and demanded money and in response when PW1 tendered MO 2 the accused instructed to keep on the table and accordingly PW 1 placed MO 2 on the table of the accused. While it is so found in page no 6 of Ex P4 the evidence of PW 1 as found in para 16 of his evidence is not in full conformity with what is found in page 6 of Ex P4. The evidence of PW 1 in page 16 of his evidence that it was only after keeping of MO 2 on the table the accused delivered three franked bill of exchanges. Reasonable doubt thus arises. The evidence of PW 2 in para 4 of his deposition when perused would not show that the accused delivered the franked bill of exchanges. Even in his further examination in chief as found in para 7 of his evidence nothing is noticed that the 24 Spl.C.C.253/2010 accused delivered three franked bill of exchanges. If really PW 2 was present with PW1, then, PW 2 who was very well informed by PW 6 to observe what transpired between the accused and PW 1 would not have omitted to mention the delivery of three franked bill of exchanges. The evidence of PWs 1 and 2 particularly the evidence of PW 1 needs further appreciation along with Ex P23 consisting of 9 sheets which sheets are the copies of the records maintained in the office of the accused pertaining to the work of PW 1.
17. During cross examination PW 1 states that there is mention in sheet no.3 of Ex P23 that the original of sheet no.3 was prepared on 19.09.2009. Perusal of sheet no.3 of Ex P23 would show that the bill of exchanges are franked on 19.09.2009. Sheet no.5 of Ex P23 also would show that the process of franking was done on 19.09.2009. PW 1 during cross examination admits that original of sheet of 5 of Ex 25 Spl.C.C.253/2010 P23 was prepared on 19.09.2009. During cross examination PW 1 states that he has not ascertained as to who is the official entrusted with franking of the bills and equally he has not ascertained as to who attended the said job of franking of bills. It is in the cross examination of PW 6 that the application for franking was given to the District Registrar and that as per records the District Registrar franked the letter on 19.09.2009. This answer would further make it clear that the job of franking came to be completed on 19.09.2009. It is not the bone of contention of the prosecution that in order to deliver the franked bill of exchanges demand was laid by the accused. Evidence of PW 1 in page 16 of his deposition is unequivocally clear that it was only after giving MO 2 the accused franked three documents and delivered the same. All these aspects would extend reasonable doubt the benefit of which necessarily needs to be extended to the accused for the reason that yardstick of appreciation of the evidence in this case is in par 26 Spl.C.C.253/2010 with any other criminal case. It is in the cross examination of PW 1 that he has not stated in page no.6 of Ex P4 that he replied that he brought Rs 2000/-. He further states during cross examination that he has not stated in page no.6 of Ex P4 that after he placed MO 2 on the table of the accused the accused placed bill of exchanges after franking those bill of exchanges. He further states during cross examination that he has not ascertained as to who executed the job of franking of bill of exchanges.
18. The opening sentence in cross examination of PW 2 is worthy to be emphasized. It shows that according to him, for the first time he went to the office of the accused on 19.09.2009 along with PW 1 in order to enquire about franking of bill of exchanges and on the same day he came to know that the job of franking of three bill of exchanges were completed. This answer of PW 2 further lends assurance to the fact that as on the date of trap the official work of PW 1 was not pending with the 27 Spl.C.C.253/2010 accused. It is in his cross examination that at page no:7 of Ex P4 he has stated that after his entry to the office of the accused along with PW 1 the accused franked three bill of exchanges and gave those papers to PW 1. This portion of his answers is not in conformity with his answer in opening sentence of his cross examination. He again reiterates during cross examination that bill of exchanges were franked on 19.09.2009 itself. He states during cross examination that he has not stated in page 6 of Ex P4 that after receiving MO 2 the accused placed the same above the almirah. Suggestion made to PW 2 during cross examination that during trap mahazar he has not stated that on 19.09.2009 there was demand for Rs 3000/- by the accused after PW 1 offered Rs 2000/-. Though the same is denied the same is not forthcoming in the trap mahazar Ex P4. He states further during cross examination that after return to the police station of PW 6 the process of finger wash of hands of the accused is carried out.
28 Spl.C.C.253/2010 This portion of his evidence is quite contrary to the evidence of PWs 1, 3 and 6 whose evidence is that finger wash of the hands of the accused was conducted in the office of the accused. All these latches and inconfirmities are not marginal and therefore these infirmities takes me to view the evidence of PW 2 under the cloud of suspicion touching the alleged demand and acceptance of MO 2 by the accused.
19. PWs 1, 3 and 6 have spoken to the process of wash of fingers of hands of the accused, seizure of MO 2, trap mahazar at Ex P4 drawn in the police station of PW 6. Process of trap mahazar is not under serious challenge as could be noticed from the cross examination of PWs 1 to 3 and 6. Though it stands established that finger wash of left hand of the accused responded to light pink colour it is seen in the cross examination of PW 1 that fingers of hands of the accused immersed in the solution after 29 Spl.C.C.253/2010 the accused touched the notes at MO 2. This portion of his unambiguous answer conveys a meaning that it was only due to that fact the finger wash of left hand of the accused turned to light pink colour. Therefore the change of colour will not drive to bring home the guilt of the accused.
20. PW 6 has spoken to further formalities of investigation which, in the absence of acceptable evidence to establish the alleged demand and acceptance is of no avail to the case of the prosecution.
21. In the decision reported in 2004(2) KCCR page 1233 law laid down by our Hon'ble High Court that in the absence of corroboration by the evidence of panch witness guilt of the accused cannot be fastened. In the decision reported in 2012 (1) KCCR page 414 law is laid down by our Hon'ble High Court that in the absence of the evidence of demand and 30 Spl.C.C.253/2010 acceptance guilt cannot be fastened and that mere possession of tainted money in the absence of proof of demand and acceptance is of no consequence. In the decision reported in 2000 SCC (Criminal) page 878 law is laid down by our Hon'ble Supreme Court that mere recovery of tainted notes and positive results of phenolphthalein test is not enough to establish the guilt of the accused. In the decision reported 1990 SCC (Criminal) page 604 there was no acceptable evidence to prove that there was demand of bribe. In the decision reported in (2007) 3 SCC (Criminal) page 541 there was no acceptable evidence to establish the guilt of the accused.
22. To sum up, evidence of PWs 1 and 2 does not establish either pendency of official work of PW 1 with the accused as on the date of trap or demand and acceptance of MO 2 and in the absence of proof of demand and acceptance of MO 2 mere possession of MO 2 by the accused 31 Spl.C.C.253/2010 will not lead to raise presumption under section 20 of the Act and therefore, it cannot be held that the guilt of the accused has remained established beyond reasonable doubt. Therefore, extending the benefit of doubt to the accused, I answer point nos 1 and 2 in the negative.
23. Point No 3: In the result, I proceed to pass the following:
ORDER Under section 235(1) Cr.P.C the accused by name Gangadhar is acquitted of the offence punishable under section 7 of The Prevention of Corruption Act 1988. The accused is also acquitted of the offence defined under section 13(1)(d) which is punishable under section 13(2) of The Prevention of Corruption Act 1988. MO 2 is confiscated to the State. MOs 3, 11 and 13 are ordered to be returned to the Superintendent of Police, Karnataka Lokayuktha, Police Wing, City Division, Bengaluru. MOs 1, 4 to 10 and 12 being 32 Spl.C.C.253/2010 worthless are ordered to be destroyed. Order regarding the disposal of MOs 1 to 13 shall be given into effect after the appeal period is over.
(Dictated to the Judgment Writer directly on the computer, print out signed and then pronounced by me in open Court on this the 29th day of February, 2016) [V.G.BOPAIAH] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Lingaraju PW 2 : D.Dayanand PW 3 : C.Venkataramaiah PW 4 : S.N.Jayaram PW 5 : C.S.Pereira PW 6 : K.C. Lakshminarayana
List of documents marked on behalf of prosecution:
Ex P 1 : Complaint of PW 1 Ex P1(a) : Signature of PW 1 Ex P2 : Sheet containing details of currency notes Exs P2(a) & 2(b) : Signatures of PW 3 33 Spl.C.C.253/2010 Ex P3 : Pre trap mahazar Ex P3(a) : Signature of PW 1 Exs P3(b) : Signatures of PW 2 Exs P3(c) to 3(f) : Signatures of PW 3 Ex P3(g) : Signature of PW 6 Ex P4 : Trap mahazar Ex P4(a) : Signature of PW 1 Exs P4(b) : Signatures of PW 2 Exs P4(c) to 3(l) : Signatures of PW 3 Ex P4(m) : Signature of PW 6 Exs P5 to P13 : Photographs flashed during pre-trap mahazar Exs P14 to P17: Photographs flashed during trap mahazar Ex P18 : Sheet of paper containing the transmission of contents of compact disc Ex P18(a) : Signature of PW 3 Ex P18(b) : Signature of PW 5 Ex P19 : Sheet of paper containing the transmission of contents of compact disc during trap mahazar Ex P19(a) : Signature of PW 3 Ex P19(b) : Signature of PW 6 Ex P20 : Sanction order Ex P20(a) : Signature of PW 4 Ex P 21: FIR Exs P21(a) & P21(b) : Signatures of PW 6 34 Spl.C.C.253/2010 Ex P 22: Letter dated 15.09.2009 from Southern Power Equipment Company Limited Ex P 23: Copy of the file of Southern Power Equipment Company Limited Ex P 24: Copy of two sheets of the attendance register maintained in the office of the accused Ex P 25: Explanation of the accused Ex P26 : Service particulars of the accused Ex P27 : Xerox copy of the proceedings of Government of Karnataka in two sheets Ex P28 : Xerox copy of the proceedings dated 21.05.1999 of the Inspector General of Registration and Stamps consisting of three sheets.
Ex P29 : Copy of a letter dated 25.06.2009 touching the allotment of work to the accused.
Ex P30: Report of Chemical Examiner Ex P31 : sketch of the place of trap drawn by PW 6 List of material objects marked on behalf of the prosecution:
MO 1 : Cover in which MO 2 cash of Rs 2000.00 is placed MO 2 : Cash of Rs 2000/-
MO 3 : Metal seal.
MO 4 : Bottle containing sample solution prepared for the purpose of pre trap mahazar 35 Spl.C.C.253/2010 MO 5: Bottle containing finger wash of hands of PW 3 MO 6 : Bottle containing sample solution prepared for the purpose of trap mahazar MO 7 : Bottle containing right hand finger wash of the accused MO 8: Bottle containing left hand finger wash of the accused MO 9 : Another bottle containing left hand finger wash of the accused MO 10 : Cover in which compact disc MO 11 is placed MO 11 : Compact disc MO 12 : Cover in which MO 13 is placed MO 13 : Compact disc List of witnesses examined on behalf of accused: Nil List of documents marked on behalf of accused: Nil [V.G.BOPAIAH] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.