Bangalore District Court
Lokayukta Police Inspector vs Hemanna B.Malluru on 5 April, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 5th day of April 2018
Spl.C.C. No. 117/2010
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: Hemanna B.Malluru,
S/o Bheemappa B.Mallur,
38 years, Legal Metrology Inspector,
HAL Sub-Division, CMC complex,
KR Puram, Bengaluru-36.
R/at No.952, 16th cross, 1st stage,
Chandra layout, Bengaluru-72.
(By Sri. P.N.Hegde - Adv)
Date of commission of offence 05-06-2009
Date of report of occurrence 05-06-2009
Date of arrest of accused: 05.06.2009
2 Spl.C.No.117/2010
Date of release of accused on bail: 08-06-2009
Date of commencement of 09-08-2012
evidence
Date of closing of evidence 27-02-2018
Name of the complainant Sri. Mohd. Irshad
Offences complained of U/s.7,13(1)(d) r/w 13
(2) of PC Act, 1988.
Opinion of the Judge Acquitted
Date of Judgment: 05-04-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused for the offence punishable under Section 7, 13 (1)(d) r/w Sec.13 (2) of Prevention of Corruption Act 1988.
2. The brief facts of the prosecution case is as under;
On 04.06.2009, Lokayukta Police Inspector submitted a report to the Superintendent of Police, Karnataka Lokayukta, City Division, Bangalore, stating that he has received credible information that accused Hemanna B.Malluru, Inspector in Weights and Measurement Department and Lakshmipathi, Peon are indulging in corruption by collecting bribes from Shopkeepers, Supermarkets, Malls, Bakeries, Sweet stall etc., by checking their weighing and measuring instruments and they have authorized some private persons for the said job and 3 Spl.C.No.117/2010 also learnt that accused issues blank certificates signed by him to Lakshmipathi, who visits shops with some license holder and collect Government fees and extra amount as bribe from them and handover the bribe amount to accused by violating the norms set by the department and has also received information that on 05.06.2009 the accused will send Lakshmipathi to check shops around Maratahalli, Koramangala and places around Krishnarajapuram and to collect amount. On receiving report, Superintendent of Police directed the Lokayukta Police Inspector, Mohamed Irshad to register the case under Section 7, 13 (1)(d) r/w Sec.13 (2) of Prevention of Corruption Act 1988 and to investigate. After receiving the order, Lokayukta Police Inspector registered the case in Cr.No.41/2009 and started investigation. The Lokayukta Police Inspector secured two panch witnesses and they all went near Ganesh Sweets and found Lakshmipathi and Chethan and on search of the bag of Lakshmipathi there was legal fees of Rs.5590/- and extra amount of Rs.1350/- which was collected by him to give to accused and then phenolphthalein powder was applied to Rs.1,350/- and Lakshmipathi was asked to meet accused and give the said bribe amount. Thereafter, trap team went to Malleshpalya, near Sand lorry stand and Lakshmipathi met accused and gave the tainted notes to accused and accused was caught with tainted notes. Hemanna B.Malluru and 4 Spl.C.No.117/2010 Lakshmipathi were arrested and produced before the court and were later released on bail. The Lokayukta Police Inspector continued the further investigation and after completion of investigation has filed the charge sheet against accused Hemanna B.Malluru alone for offences under Sec.7, 13 (1)(d) r/w Sec.13 (2) of Prevention of Corruption Act 1988.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to him. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 12 are examined. Documents as per Exs.P.1 to P.54 are marked. For the prosecution MOs 1 to 11 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and he has denied the incriminating evidence appearing against him. He has not chosen to lead any defence evidence. For the accused documents D.1 to D.9 are marked.
6. Heard the arguments and perused the records.
7. Now, the points that arise for consideration are:-
5 Spl.C.No.117/2010POINTS
1. Whether the prosecution proves beyond all reasonable doubt that accused, being public servant working as Inspector in Legal Metrology Department, HAL Sub-Division, K.R.Puram, Bengaluru, was demanding and collecting bribe from Shopkeepers, Supermarkets, Malls, Bakeries, Sweet stall etc., for checking and verifying weighing and measuring instruments of their shops and for issuing verification certificates after stamping the weighing scales and was sending CW5 Lakshmipathi, with blank signed certificates to collect Government fees and extra amount as bribe for him and on 05.06.2009 he had sent CW5 Lakshmipathi and CW4- Chetan a Private license holder to different shops in Marathalli, Koramangala, Krishnarajapuram, Varthur and other places for verifying the weighing scales in different shops and to collect bribe apart from legal fees and when CW4 and CW5 are apprehended at about 12.00 p.m near Ganesh Sweets Udaya Nagar, they are found to have collected bribe amount @ Rs.150/- in respect of 9 weighing scales of different shops on the instruction of accused and later between 2.15 to 2.16 p.m. in a car parked in Sand Lorry stand near Malleshpalya, accused received the collected bribe amount of Rs.1350/- from CW.5 Lakshmipathi as illegal gratification as a motive or reward to do official act or to show an official favour to the different shop owners in respect of their weighing scales and thereby committed offence punishable u/s 7 of Prevention of Corruption Act?
2. Whether the prosecution further proves beyond all reasonable doubt that accused being public servant working as Inspector in Legal Metrology Department, 6 Spl.C.No.117/2010 HAL Sub-Division, K.R.Puram, Bengaluru, on 05.06.2009 between 2.15 to 2.16 p.m. in a parked car in Sand lorry stand near Malleshpalya by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.1,350/-
without public interest from CW.5, which was collected by CW.5 from different shop owners as a bribe payable to accused @Rs.150/- per weighing scale, and thereby accused has committed criminal misconduct which is an offence punishable u/s.13(1)(d) of Prevention of Corruption Act, punishable u/s. 13 (2) of Prevention of Corruption Act?
3. What order?
8. My findings on the above points are:-
Point No. 1 : In the Negative Point No. 2 : In the Negative Point No. 3 : As per final order for the following:
REASONS
9. Point Nos.1 & 2: To avoid repetition of discussion and as these two points are inter-linked with each other they are taken together.
10. Case of the prosecution is that accused being Inspector in Legal Metrology Department, was collecting bribe @ Rs.150/- per weighing scales from different shop owners, apart from legal fees through Lakshmipathi, who was working as peon in his department and on 05.06.2009 on behalf of accused, CW.5 Lakshmipathi had collected Rs.1350/- as bribe amount in respect of 9 weighing scales of different shops and 7 Spl.C.No.117/2010 when accused received the said bribe amount of Rs.1350/- collected by Lakshmipathi, accused was trapped and amount was recovered from him and it is alleged that accused has committed the offences alleged against him.
11. Prosecution has examined PWs 1 to 12 in support of its case. PW.1 Mohammed Irshad, Police Inspector is officer, who has sent report to the Superintendent of Police about credible information received by him regarding corruption by accused and after receiving order, has registered the case and investigated the matter. In his evidence he has stated about the information received and report submitted by him and registering case and also stated about securing the panch witnesses and then proceeding towards KR Puram on 05.06.2009 along with panch witnesses. He has also stated that they reached the spot at 11.30 a.m. and at 12.00 p.m. they were at a particular shop and at that time, two persons came out from the shop and they surrounded them and on enquiry, they disclosed their name as Chethan, a licensed repairer of M/s. Gangothri Enterprises and another person as Lakshmipathi, Group 'D' employee in Legal Metrology Department and Lakshmipathi was carrying bag and cash of Rs.6,940/- and in that Rs.5590/- was Government fee and excess amount of Rs.1350/- was collected by Chethan under the instructions of accused and it was to be given to accused.
8 Spl.C.No.117/2010PW.1 has also stated that phenolphthalein powder was applied to bribe amount of Rs.1350/- and witness Narayanaswamy kept the amount in the shirt pocket of Lakshmipathi and his hands were washed in the sodium carbonate solution and solution was seized in a bottle and these pre-trap proceedings were photographed and Lakshmipathi was asked to meet accused and to give bribe amount to accused and Lakshmipathi was given instructions to give signal by wiping his face and when Lakshmipathi called accused by phone, he asked him to come to Malleshpalya lorry stand and they proceeded towards Malleshpalya. PW1 has also stated that PW.7 Lakshmipathi went to meet accused and PW.6 Krishna was sent as shadow witness and accused came near a place where Maruthi Omni was parked and at about 2.16 p.m., PW.7 gave signal and they rushed to the spot and they found that accused was seated in the car and tainted amount was in his hand and thereafter, sodium carbonate solution was prepared and after taking sample, both his hands were washed in the solution separately and solution turned to pink colour and it was seized and tainted notes were also seized. He has also stated that photographs were taken and thereafter they all came to Lokayukta office and on the body search of accused and PW.7, Rs.4,085/- was found and no explanation was given for the said amount and the said amount was also seized. PW.1 has also stated that 9 Spl.C.No.117/2010 accused, PW.7 and PW.9 have given their explanations and higher officer of accused was secured and he has given details of the procedure followed in Legal Metrology Department and it was video-graphed and then transmitted to CD and mahazar as per Ex.P.25 was prepared and accused was arrested. PW.1 has also stated about further investigation done by him and also about filing of charge sheet.
12. In his cross-examination, PW.1 has stated that two days prior to submitting the report as per Ex.P.1, he had received confidential information and he had met the person who had given information before submitting the report to the Superintendent of Police before registering the case, but he has not made any discreet enquiry against the accused and has stated that there was no difficulty for him to register the FIR on that credible information. He has stated that after registering the FIR, till filing the final report, he has not enquired the person who had given the credible information. He has stated that at the time of registering the FIR, he was not knowing as to at what exact time, the officials of the Legal Metrology Department will visit which place. He has stated that he has secured panch witnesses on 04.06.2009 itself. He has admitted that before registering the FIR, he was not knowing whether accused has committed any offence prior to 05.06.2009 and before 05.06.2009 he had not seen the accused. He has 10 Spl.C.No.117/2010 admitted that while going on investigation there was no witness with him to identify the accused. He has admitted that when they went to Ganesh Sweets, they were not knowing which official will come to which place and at what time. He has stated that they have waited for half an hour and during this time many persons came to Ganesh sweets and before catching PW.7, he has not questioned the other persons who came to Ganesh sweets regarding their purpose of visit to the shop. He has stated that Lakshmipathi and Chethan were not in any uniform and there was no any identifiable dress or other mark on PW.7 to identify him as the person from Legal Metrology Department. He has stated that he has arrested Lakshmipathi and detained Chethan for further investigation. He has admitted that he has used Lakshmipathi who was arrested by him for further investigation to trap the accused. He has admitted that Investigating Officer has no power to use an accused as a witness without permission from the court. He has denied that at the instance of Chethan, he has submitted report to the Superintendent of Police and registered the case against the accused. PW1 has admitted that from 17.08.2009 to 31.08.2009 and from 02.09.2009 to 01.10.2009 he was on medical leave and admitted that statement of many witnesses are taken during this period of leave and has stated that though he was on leave, Superintendent of Police asked him to 11 Spl.C.No.117/2010 attend the office and then he has taken the statements. He has admitted that he had no power to investigate the matter when he was on leave. He has stated that he submitted PF for total amount of Rs.1350/- and returned remaining Rs.5590/- to PW.7. He has admitted that the departmental enquiry was also held against him for not remitting Rs.5590/- to Government. He has stated that the said enquiry is closed.
13. PW.6 C.Krishna, panch witness has stated that they went to weights and measurements office in Koramangala and from there along with Lakshmipathi and Chethan they went towards a sweet shop at Udayanagar and has stated that when he was sitting in the car PW.1 along with Lakshmipathi and Chethan went inside shop and after some time, they came out with a bag containing receipts, cash, seal etc., and Lokayukta Police have seized cash of Rs. 6,000/- from Lakshmipathi and he made a call to accused and thereafter they went to Lorry stand at Malleshpalya and there Chethan, Lakshmipathi and Lokayukta police along with cash went to accused and has also stated about hand wash of accused. This witness has turned hostile to the prosecution case. He was treated as hostile and was cross-examined by the Learned Public Prosecutor. In the cross-examination he has admitted most of the suggestions put by Learned Public Prosecutor with regard to the prosecution 12 Spl.C.No.117/2010 case, but has denied that he was instructed to follow said Lakshmipathi as shadow witness. In his cross-examination for accused, he has admitted that he has not dictated contents of Ex.P.25 mahazar and admitted that Lakshmipathi alone went and sat along with accused in his car. He has admitted that when he first saw the accused, he was not holding the money or file. Another panch witness Narayanaswamy is examined as PW.12, he has totally turned hostile to the prosecution case. Though he was cross-examined by the Learned Public Prosecutor by treating him as hostile, nothing worth is elicited for the prosecution.
14. PW.7 Lakshmipathi is the peon, whose name appeared in Ex.P.1 and Ex.P.25 and even he was arrested and was sent to judicial custody, but charge sheet is not filed against him. He has stated that he was asked to go with PW.9 on 05.06.2009 for handing over the verified affidavits to the shops and he was carrying verification book, receipt book and punch seals with him and they went in a two wheeler and visited 8 shops and when they came to Ganesh Sweets, Lokayukta Police came and took all the records from him. He has stated about documents and amount found in his bag and that amount of Rs.1,150/- was excess colleted and powder was smeared on it and Narayanaswamy keeping the same in his shirt pocket. He has stated that when they went to 13 Spl.C.No.117/2010 Malleshpalya, as asked by accused, accused was already there and he went to accused and gave the amount which was kept in his pocket. He has stated that immediately, Lokayukta Police surrounded them and have taken photograph and accused had taken the amount and kept in his shirt pocket and after asking, accused took out the money from his pocket and gave it. PW7 was partly treated as hostile and was cross-examined by the Learned Public Prosecutor, wherein, he has admitted that in every shop they were giving verifying affidavits and collecting Rs.150/- in excess of prescribed fee and totally Rs.1,350/- excess was found in the bag and also admitted hand wash of accused and drawing mahazar as per Ex.P.25 and his statement before Magistrate. In his cross-examination for accused, he has admitted that while going to the shops for delivering verified affidavits he carry receipt books and punch seals in a bag along with his personal belongings including his personal cash. He has admitted that Lokayukta police have asked him to hand over excess amount to accused and police have not taken any statement or report from him infront of Ganesh Sweets or in Malleshpalya. He has stated that on that day he was arrested and sent to jail and after he was released on bail, they asked him to come to his office and Lokayukta Police asked him to give statement before Magistrate and was taken before the Magistrate. He has admitted that on 05.06.2009 he has not 14 Spl.C.No.117/2010 received amount for himself or on behalf of others and has stated that Chethan had given him the entire amount collected by him from the shops.
15. PW.9 Chethan is private license holder for repairing weighing scales. He has stated the prosecution case in his chief examination. He has stated that accused had instructed CW.5 Lakshmipathi to collect legal fees and also Rs.150/- as bribe for each weighing scales from the shop owners. He has stated about bribe amount of Rs.1,350/- collected from shops by PW7 to give to accused and about pre-trap procedures followed and also about trap team going to Mallesh Palya and PW7 giving tainted notes of Rs.1,350/- to Accused and recovery of said amount from accused and also about hand wash of accused. In his cross-examination, he has stated that after repairing the weighing scales, he have to report to department and give verification certificate to the shop. He has stated that for repairing the weighing scales, charges will be paid by the shop owners and Government has fixed the fees. The witness was confronted copies of 9 receipts given by him to the separate shop owners after repairing the weighing scales and then submitted to Legal Metrology department and has admitted that these receipts were given on 04.06.2009 and are marked as Exs. D.1 to D.9 He has admitted that after giving Exs.D.1 to D.9 he asked the officers of the Legal Metrology 15 Spl.C.No.117/2010 department to come to these shops on the next day to issue verification certificates regarding the weighing scales. He has stated that when they entered the first shop among the shops mentioned in Exs.D.1 to D.9, Lakshmipathi was caught by Lokayukta police. He has denied that he has informed CW.1 that they are visiting Ganesh Sweets on 05.06.2009. He has denied that in 2007, the shop owners had given complaint to the Legal Metrology department, against him for charging excess and accused had warned him.
16. PW.2 Subramanyam, PW.3 Chandrappa, PW.4 Muniswamy, PW.5 Azeez, PW.8 Mohammed Afroz, PW.10 Berraram and PW.11 K.G.Ramesh are all the owners of shops in which verification certificate is said to have been given by PW7 and 9 and collected the fees and also alleged bribe amount. All these witnesses have turned hostile. Though they were cross- examined by treating them as hostile, they have denied demand of bribe by accused and giving bribe to accused through Lakshmipathi. PW.10 was cross-examined for accused wherein he has admitted that as per the rules they have to take the weighing scales to Weights and Measurement Department for verification and for stamping and if it cannot be taken to the said office, then they have to request the officer to visit the shop by taking prior appointment and in case of such visits they have to pay Rs.150/- towards transportation of the examination 16 Spl.C.No.117/2010 instruments, loading and unloading of such instruments and handling charges.
17. For the prosecution documents are marked as Exs.P.1 to P.54. Ex.P.1 is the report of PW1 and Ex.P.2 is the order of Superintendent of Police. Ex.P.51 is the FIR. Exs.P.5 to P.17 and P.30 to 33 are the photographs taken at the time of entrustment of tainted notes to Lakshmipathi. Exs.P.23, 24 and Exs.P.26 to P.29 are the photographs taken at the time of trap. The sheet containing number of the notes is marked as Ex.P.18. The statement of many of the witnesses are marked as Ex.P.19 to 21, 22, Exs.P.36, 37, 40 and P.53. Ex.P.25 is the information search mahazar. Statement under Sec.164 of Cr.P.C. of PW.7 is marked as Ex.P.35. The verification certificates and receipts are marked as Ex.P.38 & 39. Two receipts taken from the receipt book are marked as Ex.P.3 and P.4. The explanation given by PW.9 is marked as Ex.P.42 and acknowledgment is marked as Ex.P.43. The requisition given for correction of the mistake in the mahazar is marked as Ex.P.44. The details of entrusting verification certificates and receipt books is marked as Ex.P.45. The spot sketch is marked as Ex.P.46 and chemical examination report is marked as Ex.P.47. Ex.P.48 is the call details. Ex.P.49 is the report identifying the signature of accused. The service details of accused is marked as Ex.P.50. Ex.P.52 is the requisition 17 Spl.C.No.117/2010 secure panch witnesses. Ex.P.54 is prosecution sanction order which is marked by consent. MOs.1 to 11 are also marked for the prosecution. The metal seals of the Legal Metrology department are marked as MOs.1 to 4. The bottles containing solution seized at different stages are marked as MOs.5, 6, 7, 8 and 9. MOs. 10 and 11 are the cash seized in this case.
18. The offences alleged against accused are under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act. Accused is working as Inspector in Legal Metrology department and is public servant. Since accused is a public servant, sanction from the competent authority is necessary. The competent sanctioning authority who has accorded sanction to prosecute the accused is cited as CW.15 in the charge sheet. CW15 is reported to have been expired. PW.1 Investigating Officer in his evidence has stated that after obtaining prosecution sanction order he has filed the charge sheet. The prosecution sanction order produced in this case is marked by consent as Ex.P.54. Therefore, prosecution is successful in proving that there is valid sanction to prosecute the accused.
19. In order to bring home the guilt of the accused for the offences under section 7,13(1)(d) r/w.13(2) of Prevention of Corruption Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal 18 Spl.C.No.117/2010 gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. On proof of demand and acceptance, presumption under section 20 can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established.
20. In this case there is no formal complaint given against accused by any private person alleging demand of bribe by accused. On the basis of Ex.P.1 and Ex.P.2 case has been registered. Ex.P.1 states about information received by PW1 about corruption by accused and Lakshmipathi. On the basis of report of PW.1, case has been registered and therefore PW1 would be the complainant for all the practical purposes. The Learned counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court reported in AIR 1995 SC 2339 Megha Singh Vs State of Haryana in which on different facts the Hon'ble Supreme Court at Para No.4 as observed as under :-
"... We have also noted in this case PW.3, Siri Chand, head constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case 19 Spl.C.No.117/2010 was initiated. He being complainant should not have proceeded with the investigation of the case. But is appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S.161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation".
Interestingly, in the present case, based on PW1's Report, PW1 himself has registered the case and PW1, himself has investigated the matter and has filed charge sheet. Therefore, with above observations of the Hon'ble Supreme Court in mind, evidence and facts of the present case is to be appreciated.
21. As per Ex.P.1 present accused Hemanna B Mallur and Lakshmipathi i.e. PW.7 are indulging in corruption as per the information received by PW1. Even Mahazar at Ex.P.25 and other records and the statement of the witnesses recorded in the course of investigation, show that PW.7 Lakshmipathi and PW.9 Chethan had entered Ganesh Sweets in Udaynagar and then this team of PW.1 comprising the Lokayukta police officials and PW6 and PW12 have stopped PW7 and 9 and then searched the bag which PW.7 was holding and then found the amount of Rs.6,940/-, in which Rs.5590/- was towards the legal fees and Rs.1350/- was the amount collected by this PW.7 and 9 by different shop owners as bribe to be given @ Rs.150/- for each weighing scales to the accused Inspector. In all the 20 Spl.C.No.117/2010 statements recorded under Sec.161 of Cr.P.C. it is mentioned that shop owners have paid the amount of legal fees plus Rs.150/- excess amount as bribe to PW.9 Chethan. It is stated by PW.7, that PW.9 was collecting and giving amount to him and he was keeping the same in the bag. Therefore, as per the prosecution case, it was PW.7 and 9 who visited shops and demanded Rs.150/- excess than legal fees in respect of each weighing scales and received the amount and kept in the bag.
22. Though PW.7 and 9 were caught with the alleged bribe amount of Rs.1350/- collected to give to accused, both of them are not shown as accused in this case. As per Ex.P.25, Lakshmipathi is accused No.2 and was even arrested. Even in the FIR and in Ex.P.1 report, Lakshmipathi is one of the accused. For the best reasons known to the Investigating Officer, Lakshmipathi is not shown as accused in the charge sheet. In the entire charge sheet or evidence, it is not stated as to why Lakshmipathi is left out in charge sheet and why Chethan a private license holder who collected the amount from the shop owners is not made accused. Admittedly, accused Hemanna B Malluru was not present in Ganesh Sweets on the day of incident. This Accused has not collected the amount from the shop owners. As per the prosecution case, both PWs 7 and 9 have collected the amount as bribe on behalf of accused. Even then, they would be guilty for the offences 21 Spl.C.No.117/2010 under the Prevention of Corruption Act. Non-inclusion of these two persons as accused in the charge sheet raises serious doubt about the genuineness of prosecution case.
23. There is no evidence to show that accused has demanded bribe @ Rs.150/- for each weighing scales from shop owners and he had entrusted the work of collecting this amount to PW7 and 9. Though PW7 and 9 have stated that they collected the amount on the instructions of accused, their evidence cannot be accepted without corroboration as they are the persons who collected the amount and ought to be accused in the case. All the shop owners who are examined before the Court as PWs 2, 3, 4, 5, 8, 10, 11 have turned hostile and not supported the prosecution case of giving excess amount in the hands of Chethan or Lakshmipathi as payable to accused as bribe. Demand of bribe is sine-qua-non for the offence under Sec.7 of P.C.Act as held by the Hon'ble Supreme Court in various decisions. Except the report of PW.1 regarding the credible information received by him about collection of excess amount as bribe and evidence of PW.7 and 9, who were supposed to be accused in the case, there is no evidence to prove the demand of bribe amount by accused. Though Sec.306 of Criminal Procedure Code permits the Magistrate to tender a pardon to an accused on condition of his making a full and true disclosure of the whole of the circumstances within his 22 Spl.C.No.117/2010 knowledge relating to the offence, such power cannot be exercised by the Investigating Officer. The Investigating Officer-PW.1 appears to have not obtained any such permission of the court to treat accused No.2 as a witness by tendering pardon to PW.7 as accomplice. On looking to the facts of the case, evidence of PW.7 and 9 is interested evidence and cannot be used against the present accused. Even if collection of excess amount by PW7 and 9 is proved, it is quite possible that PW.7 and 9 after receiving the excess amount have put the blame on the present accused. Apart from this, even PW.7 does not clearly say that accused asked him to collect the bribe. He has stated that it was PW.9, who was collecting the amount and giving in his hands and then he was keeping it in the bag. Therefore, there is no evidence before the court to show that accused had demanded bribe from shop owners for issuing verification certificate in respect of weighing scales which are repaired and attended by PW.9 Chethan. Therefore, the essential ingredient of demand of illegal gratification for the offence under Sec.7 of P.C. Act is not present in this case.
24. Then coming to the acceptance of illegal gratification, even as per prosecution case, accused has not collected Rs.150/- personally from shop owners. PW1 has stated that at the time of registering the FIR, he was not knowing as to at what exact time, the officials of the Legal 23 Spl.C.No.117/2010 Metrology Department will visit which place. As stated by PW1, his team directly went near Ganesh sweets and after waiting for some time, when PW7 and 9 came to that shop, they entered the shop and apprehended PW7 and 9. This raises serious doubt about the prosecution case, as PW1 had not seen PW7 and 9 earlier and they were not in any uniform and PW1 was not knowing when and where officials of legal metrology department will visit on that day and before catching PW7 and 9, they have not enquired any other persons who entered that shop. Therefore, the entire incident near Ganesh sweets appears to be tailored one.
25. Moving further, as per prosecution case, there was a bag with PW7 and Rs.6,940/- was found in the bag, out of which Rs.5590/- is stated to be Government fees and remaining amount of Rs.1350/- is considered as illegal gratification collected by PW.7 and 9 on behalf of accused. As stated above, there is absolutely no evidence to show that excess amount of Rs.1350/- was collected as bribe as per the instructions of accused and it was to be handed over to accused. However, after verifying the amount found in the bag of PW.7, the pre-trap procedures like noting down number of the notes of Rs.1350-/- and then applying phenolphthalein powder and then keeping the same in shirt pocket of PW.7 who was accused No.2 in the FIR are stated to have been followed 24 Spl.C.No.117/2010 and when contacted accused is said to have asked PW7 to come to Malleshpalya and then the trap team went there and accused was already there in a car and PW.7 went there and gave the tainted notes and gave signal and hand wash of accused was conducted etc., In Ex.P.25 it is mentioned that PW.6 C.Krishna was sent along with PW.7 as a shadow witness. But there is nothing mentioned about participation of this shadow witness in the trap. Ex.P.25 does not state that PW7 went to accused and stating that this is amount collected as bribe from shop owners, he gave Rs.1350/- to accused. Even if PW.7 has gave this amount to accused, there is no evidence to show that accused has received it as bribe collected on his behalf by PW.7.
26. It is mentioned in Ex.P.25 that hand wash of right hand has turned to light pink colour and left hand wash has turned to dirt colour and it was seized and thereafter the Investigating Officer has asked accused where is the bribe amount received and then accused has produced the amount which was in his hands. If the amount received from Lakshmipathi was in the hands of accused when Investigating Officer enquired him, as mentioned in Ex.P.25, where was this amount at the time of hand wash of accused which was done earlier is to be explained by the prosecution. As per Ex.P.25, after the hand wash, accused produced the amount which was 25 Spl.C.No.117/2010 in his hand. This raises serious doubt about accused holding the tainted notes in his hand and producing it before Investigating Officer and also about hand wash of accused. PW7 has stated that accused has kept the amount in his shirt pocket. As per Ex.P.25 and other evidence before the court none of the persons have seen the accused receiving these tainted notes from PW.7. There is nothing stated about any conversations had between PW.7 and accused at the time of handing over of the amount. Totally Rs.6940/- was found in the bag of PW7 and it was bifurcated as bribe amount of Rs.1350/- and legal fees of Rs.5590/-. What happened to Rs.5590/- is not stated in Ex.P.25. Whether that Rs.5590/- was also given by PW.7 to accused and where he had kept that amount while meeting accused is not stated in Ex.P.25 or in the evidence of PW.7 and 9 or PW.1. In cross-examination of PW.1 at page No.15, I.O has stated that he has submitted PF for total amount of Rs.1350/- and he has returned Rs.5590/- to Lakshmipathi. He has stated that he has taken acknowledgement for returning the said amount to Lakshmipathi and same is not produced before the court. He has also admitted that departmental enquiry was also held against him for not remitting Rs.5590/- to the Government and he has stated that the enquiry is closed in the year 2012. As per this evidence, Rs.5590/- was returned to Lakshmipathi by 26 Spl.C.No.117/2010 the Investigating Officer. When the said amount has been returned is not mentioned in Ex.P.25 or in the evidence of any of these witnesses. Interestingly, PW1 has admitted that even Departmental enquiry was held against him for not returning Rs.5590/- to the Government. This evidence of PW.1 makes it clear that when Lakshmipathi was carrying Rs.1350/- he had not given legal fees of Rs.5590/- to accused and he has only given Rs.1350/- tainted notes to accused. There is no conversation held between Lakshmipathi and accused at the time of giving these tainted notes.
27. In Ex.P.25, at page No.4 it is mentioned that Lakshmipathi informed the trap team that amount recovered towards legal fees and extra amount will be given to accused who is Inspector. At the time of trap of accused Rs.5590/- was not given to accused but only tainted notes were given to accused. Therefore, while giving the said amount, there is possibility of PW7 informing the accused that it is legal fees collected by him or accused receiving the same by thinking that it is legal fees collected by PW7 and PW9 from shop owners. There is absolutely no evidence to show that accused has received Rs.1350/- as bribe collected on his direction by PW.7 and 9. Mere receipt of the amount by accused from PW.7, who was required to give legal fees collected in the hands of accused as stated by him, cannot be an offence. The 27 Spl.C.No.117/2010 prosecution has to prove that accused has received Rs.1350/- as bribe collected by PW7 and 9 on his direction. In this connection, there is no evidence before the court. As stated above, there is no evidence of any demand of bribe by accused from shop owners and even acceptance of amount of Rs.1350/- by accused from Lakshmipathi cannot be considered as acceptance of bribe or illegal gratification other than legal remuneration by accused. Under such circumstances, amount of Rs.1350/- found in the hands of accused and then recovery of same from him as contended by prosecution, even if proved, will not prove the commission of offence by accused.
28. The learned counsel for accused has drawn my attention to 2016 Crl. L.J. 3066 R.Srinivasan and another Vs State by Police Inspector, Lokayukta, Bengaluru in which the Hon'ble High Court has held that "Co-accused charged of having allegedly demanded and received bribe - Cannot be asked to be a witness to pay the same to accused that too, at instance of Investigation officer who had already taken him into his custody - Such procedure adopted in present case is virtually unknown to law and established procedure". This decision is relied to contend that PW1 directing PW7 who was accused No.2 in the FIR to contact the accused and then give 28 Spl.C.No.117/2010 tainted notes of Rs.1350/- to accused is not acceptable and it is unknown to law. In the present case near Ganesh sweets PW.7 and PW.9 were stopped and amount was found in the Bag and Rs.1350/- was collected as excess and phenolphthalein powder was applied then it was kept in the shirt pocket of PW.7 and PW.7 as per the instructions of Investigating Officer has contacted the accused by phone and then they all went to Malleshpalya wherein PW7 alone went and gave the amount to accused at the instance of Investigating Officer. Name of this PW7 was appearing as accused No.2 in the FIR. It was PW7, who was caught near Ganesh sweets and was treated as accused No.2 even in the mahazar and was even arrested and was sent to judicial custody. Therefore, as held in this decision asking this PW7, who was accused No.2, to be a witness and to pay the amount to present accused is not acceptable.
29. There are many more inbuilt discrepancies in the prosecution case. The participation of shadow witness PW.6 is not mentioned in Ex.P.25 or in the evidence. Whether he has seen the accused receiving the amount is also not clear. PW12 has totally turned hostile to prosecution case. Even evidence of PW.6 does not show that he had seen the accused receiving the amount. PW6 in his cross-examination has admitted that Lakshmipathi told that the money found in excess compared 29 Spl.C.No.117/2010 with receipts was his own and admitted that Investigating Officer asked Lakshmipathi to make a call and asked him to find out the location of accused and admitted that at the first instance Lakshmipathi alone went and sat along with accused in his car and at that time himself and another panch were standing at another place. He has admitted that when he first saw the accused he was not holding money, file etc., Therefore, evidence of PW6 and PW12 panch witnesses does not support prosecution case.
30. Entire prosecution case is standing on the evidence of PW.1 Investigating Officer who is also complainant, PW.7 who was accused No.2 in the FIR and another witness PW.9 who had collected the amount of legal fees and also alleged excess amount of Rs.1350/-. On the basis of this evidence, the prosecution case of demand and acceptance of illegal gratification by accused does not get established. The inherent defects found in the prosecution case could not be cured by their evidence. If there is no case of demanding and receiving the illegal gratification against PW.7 and 9, there would be no case even against accused. As no charge sheet is filed against PW.7 and 9 even there cannot be any case against accused. Apart from this, in Ex.P.25 it is mentioned in page No.4 that after recovery of Rs.6,940/- in the bag along with receipts and seal etc., body search was conducted and in the body search of 30 Spl.C.No.117/2010 Lakshmipathi no relevant thing is found. Subsequently in the same mahazar at page No.7 it is noted that body of accused Hemanna B Mallur and Lakshmipathi was searched after coming to Lokayukta office and then Rs.4,085/- was found. This amount was with whom, among accused and Lakshmipathi is not mentioned in Ex.P.25 and this Rs.4,085/- is seized in this case and is marked as MO.11. In whose body search the said amount was found is not mentioned in mahazar or in evidence of Investigating Officer. If body search of Lakshmipathi was held when he was apprehended near Ganesh Sweets and nothing was found with him, how could again, when his body search is made in Lokayukta office along with body search of accused, amount of Rs.4,085/- was found is also not explained. PW1 has admitted in his cross examination that from 17.08.2009 to 31.08.2009 and from 02.09.2009 to 01.10.2009 he was on medical leave. Most of the statements of the witnesses are shown to have been recorded by him during this period. The explanation given by PW1 is not acceptable, as when PW1 is on Medical Leave the Investigating Officer to this case would be the Officer, who is incharge of PW1 for that period. PW1 has admitted that he had no power to investigate the matter when he was on leave. This serious lacuna in the investigation also raises doubt about proper investigation done.
31 Spl.C.No.117/201031. Looking from any angle, the prosecution has utterly failed to prove the presence of ingredients constituting offence under Sec.7 of Prevention of Corruption Act. The demand and acceptance of gratification other than legal remuneration by accused from the shop owners by directing PW.7 and 9 to collect the same is not established. There is no evidence to show the demand and acceptance of bribe amount by accused. Even if acceptance of Rs.1350/- by accused is considered as established, on the basis of hand wash and recovery of amount, that will not prove that accused accepted the said amount as illegal gratification collected by PWs 7 and 9 on his directions. Therefore, prosecution has failed to prove the guilt of accused under Sec.7 of Prevention of Corruption Act. There is no formal complaint given by any shop owners regarding demand of bribe. All the shop owners examined before the court have turned hostile. Under such circumstances, even receipt of any pecuniary advantage by accused without public interest is not made out and commission of offence of criminal mis-conduct by accused is not established.
32. The learned counsel for accused has vehemently argued that it is a false case registered against accused without any basis and accused is entitled for clear acquittal. The learned counsel has drawn my attention to a decision of Hon'ble High Court of Madras in Crl. R.C. 684/2014 dated 32 Spl.C.No.117/2010 23.12.2014 between E.Kalivarathan Vs State, Represented by the Sub-Inspector of Police, Pudupet Police Station, Cuddalore District. In this decision, by referring to various decisions, Hon'ble High Court has considered the order that is to be passed by the courts while acquitting the accused. The Hon'ble High Court has held in Para No.50 of Judgment as under:-
"Thus, the expression honourable acquittal is relevant to service law jurisprudence or other jurisprudence and not for criminal law jurisprudence. Therefore, the criminal court while acquitting the accused, undoubtedly, cannot employ the term "that the accused is/are honourably acquitted". But at the same time, in all cases where there is no evidence at all against the accused as I have already concluded, the criminal court should simply say "acquitted". The criminal court may say that there is no evidence against the accused. But, the criminal court in such kind of cases, where there is no evidence at all against the accused, shall not employ the expressions "not proved beyond reasonable doubt" or "accused is acquitted by giving benefit of doubt".
33. In the present case, on looking to the entire materials placed by the prosecution, the commission of offence under Sec.7 or 13 (1)(d) of Prevention of Corruption Act by accused is not established. There is no evidence to prove the commission of any such offence by the accused. Hence, as 33 Spl.C.No.117/2010 held in this decision, accused is to be acquitted without employing the expressions beyond reasonable doubt and benefit of doubt. Accordingly, Point Nos. 1 and 2 are answered in the negative.
34. Point No.3: For the discussion and findings on Point Nos. 1 & 2, following order is passed:
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
MOs-1 to 4 Metal seals are ordered to be returned to the Legal Metrology Department after the expiry of appeal period.
M.Os.5 to 9 are ordered to be destroyed after the expiry of appeal period, as are worthless.
M.Os 10 and 11 are ordered to be confiscated to the State Government after the expiry of appeal period.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 5th day of April 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.34 Spl.C.No.117/2010
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Mohammed Irshad PW.2 Subramanyam PW.3 Chandrappa PW.4 Muniswamy PW.5 Azeez PW.6 C.Krishna PW.7 Lakshmipathi PW.8 Mohammed Afroz PW.9 T.Chetan PW.10 Berraram PW.11 K.G.Ramesh PW.12 P.Narayanaswamy
List of documents exhibited for the prosecution:
Ex.P.1 Information report - complaint
Ex.P.2 Authorization letter issued by SP
Ex.P.3 Receipt book No.19872
Ex.P.4 Receipt book No.21227
Ex.P.5 to 17 13 photos (pre-trap)
Ex.P.18 Currency detail Sheet
P.18 (a) Signature of PW.6
P.18 (b) Signature of PW.12
Ex.P.19 161 statement of Subramanyan
Ex.P.20 161 statement of Chandrappa
Ex.P.21 Statement of witness/Muniswamy
Ex.P.22 Statement of witness/Azeez
Ex.P.23 & 24 Two photos
Ex.P.25 Search Information Mahazar
P.25 (a) to (h) Signature of PW.6
P.25 (j) Signature of PW.1
P.25 (K) & (l) Signature of PW.12
Ex.P.26 to P.33 Seven photos
Ex.P.34 Report given by PW.7
P.34 (a) Signature of PW.7
Ex.P.35 164 statement
P.35 (a) Signature of PW.7
Ex.P.36 Statement of PW.8
Ex.P.37 Statement of PW.10
35 Spl.C.No.117/2010
Ex.P.38 & 39 Verified certificate and receipts
Ex.P.40 Portion of statement of PW.11
Ex.P.41 Explanation of accused
Ex.P.42 Explanation of PW.9
Ex.P.43 Acknowledgment of seal
Ex.P.44 Mistake Search Mahazar
P.44 (a) Signature of PW.1
Ex.P.45 Verification Certificate of receipt books
Ex.P.46 Sketch
Ex.P.47 Chemical examined report
Ex.P.48 Call details of accused
Ex.P.49 Report in the verification certificates
Ex.P.50 Service details
Ex.P.51 FIR
P.51(a) Signature of PW.1
Ex.P.52 Seal of Joint Director of Statistics
Ex.P.53 Statement of witnesses
Ex.P.54 Prosecution Sanction order
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
Ex.D.1 to D.9: Copies of receipts under RTI Material Objects marked by Prosecution :
MOs-1 to 4 Four Metal seal
MO-5 Sample solution bottle
MO-6 Hand wash of Narayana swamy
MO-7 Sample solution bottle
MO-8 Right hand wash of accused
MO-9 Left hand wash of Accused
MO-10 Cash
MO-10 (a) Cover
MO-11 Cash
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
36 Spl.C.No.117/2010
Orders pronounced in the open Court vide
separate Judgment :
ORDER
Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is
acquitted from the charges levelled against him for the offences punishable under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
MOs-1 to 4 Metal seals are ordered to be returned to the Legal Metrology Department after the expiry of appeal period.
M.Os.5 to 9 are ordered to be destroyed after the expiry of appeal period, as are worthless.
M.Os 10 and 11 are ordered to be confiscated to the State Government after the expiry of appeal period.
LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.