Karnataka High Court
R.Srinivasan vs State By Police Inspector on 27 November, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE A.V.CHANDRASHEKARA
CRL.A. No.702/2015
BETWEEN
1. R.SRINIVASAN
S/O M. GANGAIAH
AGED ABOUT 57 YEAS
ASSISTANT EXECUTIVE ENGINEER
NO.C-2, SUB-DIVISION,
B.W.S.S.B, HIGH GROUNDS
BENGALURU-02
R/O NO.77/41, 14TH CROSS, 11TH MAIN,
PADMANABHANAGARA,
BANGALORE-70
2. NANJUNDAPPA
S/O SUBBEGOWDA
AGED ABOUT 65 YEARS
ARTISAN, OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER,
NO.C-2, SUB-DIVISION,
BWSSB, HIGH GROUNDS,
BANGALORE-02
... APPELLANTS
(By Sri: C G SUNDAR, ADV.)
AND
STATE BY POLICE INSPECTOR
LOKAYUKTHA BANGALORE
REP BY STATE SPECIAL PUBLIC
2
PROSECUTOR FOR LOKAYUKTHA CASES
HIGH COURT OF KARNATAKA,
HIGH COURT COMPLEX,
BANGALORE-01
... RESPONDENT
(By Sri: VENKATESH P DALWAI, ADV. )
CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV. FOR
THE APPELLANT/ACCUSED NO.1 AND 2 PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE IMPOSED ON THE APPELLANTS/ACCUSED NO.1
AND 2 DATED 11.6.2015 PASSED BY THE XXIII ADDL. CITY
CIVIL AND S.J. AND SPL. JUDGE, PREVENTION OF
CORRUPTION ACT, BENGALURU URBAN DISTRICT,
BENGALURU CITY IN SPL.C.C.NO.87/2006 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7
U/S 13(1)(d) P/U/S 13(2) OF PREVENTION OF CORRUPTION
ACT, 1988. THE APPELLANTS/ACCUSED ARE SENTENCED
TO UNDERGO R.I. FOR 2 YEARS AND PAY FINE OF
RS.20,000/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL
UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S 7
OF PREVENTION OF CORRUPTION ACT, 1988. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
R.I. FOR 2 YEARS AND 6 MONTHS AND PAY FINE OF
RS.25,000/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL
UNDERGO S.I. FOR 7 MONTHS FOR THE OFFENCE P/U/S
13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.
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THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 3.11.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is filed under Section 374, Cr.P.C. challenging the judgment and convictionand passed against them by the XIII Additional City Civil and Sessions Judge cum Special Judge, Bengaluru City, in CCH.24 in Spl.Case No.87/06. They have faced a trial for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as the Act, for brevity) along with Section 34, I.P.C.
2. After concluding investigation, charge sheet came to be registered as Special C.C.133/03. The 1st appellant is sentenced to undergo RI for a period of two years and to pay a fine of Rs.20,000/- for the offence punishable under Section 7 of the Act and to undergo RI 4 for a period of 2 years and 6 months and to pay a fine of Rs.25,000/- for the offence punishable under Section 13(2) of the Act. The 2nd accused (2nd appellant) is also directed to undergo similar imprisonment as imposed on the 1st accused-1st appellant. The judgment of conviction and sentence dated 11.6.2015 is called in question in this appeal on various grounds as set out in the appeal memo.
3. Charges came to be framed against both the appellant on 12.4.2012 by the special court. The gist of the allegations, as per the charges, is that both of them demanded PW-3,Bheemaiah, husband of Smt.K.P.Poovamma (CW-4), owner of Shakti Bar and Restaurant Bangalore, to pay Rs.30,000/- as bribe for not levying pro-rata charges relating to the water connection of the restaurant. It is alleged that both the accused demanded Rs.30,000/- from Bheemaiah as bribe to show official favour and the 2nd accused received Rs.30,000/- at 1.30 p.m. on 19.3.2002 and later 5 on the 1st accused received the said amount of Rs.30,000/- from the 2nd accused at 2.35 p.m in the office. It is alleged that the 2nd accused received the amount of Rs.30,000/- from Bheemaiah on the instructions of the 1st accused. It is alleged that the 1st accused received the tainted amount from the 2nd accused in his office at No.C-2 Sub-division of BWSSB, High Grounds, Bengaluru.
4. To bring home the guilt of the accused, prosecution has examined in all 5 witnesses and got marked 27 exhibits and 14 material objects. The case of the accused is one of total denial of the allegations made against them and no evidence is adduced on their behalf. They have been examined under Section 313, Cr.P.C. Both of them have emphatically denied the existence of any possibility to do any official favour to the complainant or his wife and the alleged demand and receipt of the tainted amount.
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5. PW1-Ashok Kumar Munoli who was the chairman of BWSSB at the relevant time, has accorded sanction to prosecute the appellants and it is marked as Ex.P2. The learned judge of the trial court has held that the sanction so accorded by PW1 is valid. PW2-Chennakeshava is the attestor to the entrustment mahazar stated to have been drawn in the office of Lokayukta relating to the tainted money smeared with phenolphthalein powder being kept in the pocket of PW3-complainant. It is also stated that he was present when the 2nd accused was trapped while receiving the bribe amount from PW3 in Shakti Bar and Restaurant. PW3-Bheemaiah is the husband of Poovamma, owner of Shakti Bar and Restaurant. It is alleged that he paid the bribe amount of Rs.30,000/- smeared with phenolphthalein powder to the 2nd appellant-Nanjundappa in Shankti Bar and thereafter 2nd accused went to the office and paid the same to the 1st accused.
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6. B.Narayanappa-CW3 is examined as PW4. According to the prosecution case, he was the shadow witness to the trap laid in the office when the 1st accused received the tainted money from the 2nd accused. V.P.M.Swamy-CW6 who is examined as PW5, was the officer who investigated the case in question and laid trap in Shakti Bar and Restaurant and the office of Accused No.1.
7. Prosecution has mainly relied on the following circumstances:
i) The Power of the accused to do official favor in the matter of collecting pro-rata charges to be paid to BWSSB.
ii) Demand made by the 2nd accused to pay bribe in the matter of paying pro-rata charges of the restaurant;
iii) Receipt of the alleged tainted amount of Rs.30,000/- from the complainant in Shakti Bar and Restaurant;
iv) Demand and receipt of the tainted amount by the 1st accused in his office;8
8. Learned counsel for the appellants has submitted his arguments contending inter alia, amongst others, that there was absolutely no scope to do any official favour to PW3-Bheemaiah, husband of Smt.Poovamma, owner of Shakti Bar and Restaurant, and that the prosecution has thoroughly failed even to probablise remotely the fact that PW3 or his wife were expected to pay pro-rata charges and therefore, the accused had opportunity to do official favour and insisting for bribe of Rs.30,000/- to exempt them from paying the said charges. It is argued that material witnesses have not at all supported the prosecution case and the alleged demand and receipt of bribe amount from PW3 by the 2nd accused in Shakti Bar and Restaurant is not at all proved.
9. Learned counsel has further argued that the prosecution has thoroughly failed to prove the receipt of bribe amount of Rs.30,000/- by the 1st accused from the 2nd accused in his office and that material witnesses 9 have not supported prosecution case in any manner. It is argued that the very trapping of the 1st accused in the office at the instance of the 2nd accused by Lokayukta police is opposed to Article 20 of the Constitution of India. It is argued that the foundation laid by the prosecution is very weak and the evidence adduced does not even probablise its case, much less the proof beyond reasonable doubt. It is alternatively contended that the prosecution has failed to prove the receipt of bait money being preceded by demand/s. Learned counsel has relied upon several decisions in support of the contentions raised during the course of submission of arguments.
10. Mr.Venkatesh Dalwai learned counsel representing Lokayukta has argued that the inconsistencies here and there found in the prosecution case cannot be blown out of proportion to throw the case of the prosecution out of court. It is argued that proper explanation should have been given by the both the accused in regard to the 10 receipt of tainted money in view of the presumption available under Section 20 of the Act and that the same is not done. It is argued that receipt ofRs.30,000/- by the 2nd accused was at the instance of the 1st accused and both of them had made prior demand for Rs.30,000/- to do official favour. It is argued that the witnesses examined on behalf of the prosecution have withstood the rigor of cross-examination and the learned judge is justified in convicting the accused and sentencing them to undergo RI and also to pay fine. It is further argued that the judgment of conviction and sentence is neither opposed to law nor facts, nor probabilities and the learned judge has adopted the right approach to the real state of affairs.
11. Learned judge of the trial court has framed the following charges against the accused:
CHARGE I, N.K.Sudhindra Rao, B.Com., LL.B., Special Judge, Court of Prevention of Corruption 11 Act, Bangalore Urban District, Bangalore, hereby charge you:
A.1: R.Srinivasan s/o M.Gangaiah, 43 years, AEE, No.C-2 Sub-division, BWSSB, High Grounds, Bangalore, r/o No.77/41, 14th Cross, 11th Main, Padmanabhnagar, Bangalore.
A.2: S.Nanjundappa, s/o Subbegowda, 55 years, Artisan, O/o the AEE, No. C-2 Sub- division, BWSSB, High Grounds, Bangalore, As follows:
That you accused no.1 R.Srinivasan was working as Assistant Executive Engineer and you accused no.2 S.Nanjundappa was working as Artisan (Valveman) in No. C-2 Sub-division, BWSSB, High Grounds, Bangalore,, you accused nos.1 and 2 being public servants demanded bribe amount of Rs.30,000/- for not levying pro- rata charges in respect of the bar and restaurant building belonging to CW4 K.P.Poovamma and on 19.3.2002, at about 1.30 p.m. at the office of the accused no.2, No. C-2 Sub-division, BWSSB, High Grounds, Bangalore,, you accused nos.1 and 2 demanded Rs.30,000/- and you accused no.2 accepted illegal gratification of Rs.30,000/- from complainant T.M.Bheemaiah and later your accused no.1 at about 2.35 p.m. received the said bribe amount from you accused no.2 to render official favour and thereby you nos.1 and 2 have committed anoffence punishable under Section 7 of P.C. Act, 1988 within the cognizance of this court.
That you accused on 19.3.2002 at about 1.30 p.m. at the office of accused no.2, No. C-2 Sub-division, BWSSB, High Grounds, Bangalore, while working as public servants, by illegal means, abused your position as public servant demanded and obtained yourself Rs.30,000/- to 12 make pecuniary advantage against public interest, from CW1-T.M.Bheemaiah, the complainant and later you accused no.1 at about 2.35 p.m. received the said bribe amount from you accused no.2 to render official favour and thereby committed criminal misconduct, which is an offence under Section 13(1)(d) of P.C Act, 1988, and punishable under Section 13(2) of P..C.Act, 1988,and within the cognizance of this court.
And I hereby direct that you, the above named accused, be tried on above said charges before this court.
12. Following are the points formulated by the learned special judge to dispose of the case:
1) Whether the prosecution has established that on 19.3.2002 A1 and A2 being public servants working as Assistant Executive Engineer and Artisan (Valveman) respectively in No.C-2 Sub-division, BWSSB, High Grounds, Bengaluru, in the matter of extending official favour to PW3 T.M.Bheemaiah, i.e. for not levying pro rata charges to the bar and restaurant run by PW3 in the building no.53 at St.Johns Church Road, Coles Park, Bengaluru, A1 demanded and accepted illegal gratification of Rs.30,000/- at MO 12 from PW3 for himself and on behalf of A1 at about 1.30 p.m. on 19.3.2002 in the above bar and restaurant and thereafter on the same day, A1 demanded and accepted illegal gratification of Rs.30,000/- at MO 12 at 3.35 p.m. in his office at High Grounds, Bengaluru, from PW3 through A2 and thereby A1 and A2 have committed the offence punishable under Section 7 of the Act?13
2) Whether the prosecution has established that on the above date, place and time, A1 and A2 being public servants, by illegal means abused their position as public servants demanded and obtained a sum of Rs.30,000/- at MO 12 as pecuniary advantage without public interest from PW3- T.M.Bheemaiah in order to render official favour and committed criminal misconduct and thereby A1 and A2 have committed the offence deemed under Section 13(1)(d) which is punishable under Section 13(2) of the Act?
3) What order?
Learned judge has answered point nos.1 and 2 in the affirmative and accordingly convicted both the accused.
13. The following points arise for consideration of this court in the present case:
1) Whether the prosecution has established that PW3, being the husband of the owner of Shakti Bar and Restaurant, was expected to pay pro-rata charges to BWSSB and therefore there was a possibility to do an official favour and thereby demand for bribe?
2) Whether the prosecution has proved beyond reasonable doubt that both the 14 accused had demanded PW3 to pay Rs.30,000/- as bribe and the receipt by the accused was preceded by the demand, as contemplated under Section 7 of the Act?
3) Whether the court below is justified in convicting the accused for the offences for which they are charged?
4) Whether any interference is called for by this court insofar as the sentence of imprisonment and fine is concerned and if so, to what extent?
5) What order?
REASONS
14. Regarding Point No (1): The scope for demanding bribe by a public servant would arise if there is a possibility of doing any official favour. The prosecution is expected incidentally to make out a case that the accused had opportunity to do official favour and therefore demanded PW3-Bheemaiah to pay Rs.30,000/-. 15 It is expected to make out a case that the owner of Shakti Bar and Restaurant-Smt.Poovamma was expected to pay pro-rata charges and in order to exempt the owner from paying the same, demand was made. BWSSB is a statutory authority created under the statute. Water will be supplied by the Board both to commercial and residential houses. The question of collecting pro-rata charges arises only when a new water connection is to be given.
15. In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do some official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section-7 of the Act. In the case of State THROUGH INSPECTOR OF POLICE, Andhra Pradesh Vs. K. Narasimhachary (2006 Crl.L.J. 518 (SC), the Hon'ble Supreme Court has specifically held that the Court is 16 expected to look into closely as to whether the accused had the official role to play in order to do an official favour. As per the facts in the said case, the accused was merely a recommending authority and not the authority to issue valuation certificate. The accused therein was not even a clerk for issuing property valuation certificate. In fact the certificate had already been forwarded and sent to the official authority before the alleged demand for bribe was made by the accused. The above said circumstances created a doubt in the mind of the trial Court and hence accused came to be acquitted. In the challenge before the High Court, the order of the trial Court was confirmed, and the matter was taken up in further appeal before the Hon'ble Supreme Court which has confirmed the order of the Special Court as well as the High Court.
16. The allegation against both the appellants, as could be seen from the charge framed by the trial Court 17 on 12.04.2012 is that, the appellants, being the public servants, had demanded bribe of Rs.30,000/- for not levying the pro-rata charges in respect of the Bar and Restaurant belonging to C.W.4, Smt. K.P. Poovamma, the wife of PW.3. In order to make such a demand of bribe, the public servants must have an opportunity to do at least some official favour to the complainant, since that could be the main foundation/ground for demanding bribe. Therefore, in the case on hand, it is just and relevant to know as to whether the building in which Shakti Bar and Restaurant was being run by the complainant had been provided with water connection earlier. We must also see as to whether when the pro- rata charges was expected to be paid by the owner of the building relating to water and sewerage facility.
17. PW.1 Mr. Ashok Kumar Munoli, was working as the Chairman of Bengaluru Water Supply and Sewerage Board ('BWSSB' for short) which is a statutory board 18 engaged in providing water to the residents of Bengaluru both commercial, domestic, non-domestic. He has been examined in regard to the validity of the sanction accorded under Section-19 of the Prevention of Corruption Act ('PC Act' for short) to prosecute both the accused-appellants. In his cross-examination, PW.1 has specifically deposed that the complainant had to pay pro-rata charges to the Board for taking water connection. He has further deposed in his cross- examination that without looking to the concerned records, he cannot say as to whether the owner of Shakti Bar and Restaurant had submitted an application to the Board seeking water connection or not. According to him, at the time of issuing sanction order under Section- 19 of the Act, he did not ascertain as to whether any application had been filed by PW3 or CW4 for water connection and whether it was pending in the office of the Board or not and that he had not ascertained as to what was the pro-rata charges to be paid by the 19 complainant before according sanction for prosecution of the accused-appellants. Thus, from the evidence of PW.1 it is clear that he was not sure as to whether there was already water connection to the building or fresh water connection had been sought for and what was the pro-rata charges to be paid by the complaint.
18. The question of paying pro-rata charges arises only when fresh water connection would be sought, which is evident from the regulations of the Board. But, the sum and substance of the evidence of PW.1 who is the head of the BWSSB., is that before according sanction to prosecute the accused-appellants, he did not ascertain as to whether any application had been filed by the complainant seeking fresh water connection was pending in the office of the Board and as to what was the quantum of PR payable by the complainant.
19. To know as to whether the complainant had indeed filed an application for fresh water connection and he 20 was directed to pay PR charges, it is just and necessary to scan the evidence of PW.3 Bheemaiah, who is none other than the husband of the ostensible owner of the building. In his examination-in-chief, he has specifically deposed that from out of his retirement benefit and after availing the loan from the financial institution, he purchased an old building in the name of his wife- Poovamma a building consisting of three floors, from one Yamuna Bai in the year 1998 and after carrying some renovation over a period of time, started to run the Bar and Restaurant. He has specifically deposed that when he purchased the building from its erstwhile owner, the building had already water and sewerage connection. Though the said Poovamma, the registered owner is cited as prosecution witness, she has not been examined in the Court below. Thus, though the building was purchased in the name of Poovamma, the wife of PW.3, he is the real owner of the building. During the course of his cross examination, PW.3 has specifically deposed 21 that he did not produce any documents to show that he had indeed been directed by the BWSSB to pay the pro- rata charge and paid the same.
20. According to him, Accused No.2 had threatened him that if pro-rata charge was not paid, water connection would be disconnected. But he did not enquire about the same with the concerned officer of the Board. Though he had purchased the building in the name of his wife, he is the best person to speak about the demand and payment made as regards the pro-rata charges. But there is no whisper in his evidence about issuance of any notice by the BWSSB., calling upon the owner of the building to pay pro-rata charges. On the contrary, he has deposed in his cross-examination conducted on 01.09.2014 that after the disconnection of the water supply in the month of February 2002, the Bar and Restaurant was very much functioning. According to him, it was accused No.2 who wrote application for 22 reconnection of the water supply in the bar just before he was trapped.
21. As per PW.3, the trap was laid on 19.03.2002 in his bar by the Lokayukta police and even on that date, the Bar and Restaurant was running. If really, accused No.2 had disconnected the water supply, the question of running the bar without water would not arise.
22. PW.5 V.P.M. Swamy was the police inspector working the office of the Lokayukta who laid the trap on 19.03.2002. Hence, he being the investigation officer, would be the best person to speak about the alleged disconnection of water connection for want of payment of pro-rata charges, seizure of the disconnected water meter and collecting other documents relating to demand of pro-rata charges, kept by the BWSSB. In his cross- examination at paragraph-15, he has deposed that after trap, he along with accused No.1 & 2, PWs 2 to 4 proceeded towards the BWSSB service station at Coles Park wherein accused No.2 produced water meter in the 23 said service station. In paragraph-20 of his cross- examination, PW.5 has deposed that he did not receive any documents as regards the disconnection of the water, touching upon Ex.P.23. He has admitted the suggestion as true to the effect that it was the water Inspector who had been assigned with the powers to disconnection or restoration of water connection. Further, he has admitted in his cross-examination that he did not collect any documents as regards demand and payment of pro-rata charges. His evidence discloses that he did not make any serious investigation about the levy of pro-rata charges by BWSSB.
23. Ex.P.23 is stated to be the document pertaining to assignment of duties and responsibilities to various officers of the BWSSB including the Water Inspector and AEE. As per the said document, the Water Inspector was the competent and authorized person, to whom, the responsibility for proper maintenance and distribution of water supply in his jurisdiction and to supervise the 24 works of meter readers, to take meter reading, connection, both domestic and non-domestic had been entrusted. Item No.6 of the duties assigned to him speaks about the supervision of disconnection and reconnection of the water in respect of domestic connection. Thus, Water Inspector was expected to assign the works to his subordinates in consultation with his superiors and maintain records at the service station.
24. Admittedly, Accused No.2 was a valveman and he was not a meter reader. The Assistant Executive Engineer would be in charge of service station and he was not connected with the maintenance of water connection and meter reading. The Water Inspector is not examined by the investigating officer to prove as to whether the meter so seized from the premises of the complainant was the same water meter of the bar in question. In fact the meter which was allegedly seized is not got marked as material object. There is absolutely no material to show that PW3- Bheemaiah 25 wanted a fresh water connection and that there was no earlier water connection to the building. No evidence is forthcoming in regard to the disconnection of the water supply and request made by PW.3 for reconnection of water supply.
25. PW.3 Mr. Bheemaiah has deposed before the Court that he had told the accused No.2 that it was an old building and there was already water connection. According to PW.3, accused No.2 told him to pay a sum of Rs.80,000/- towards pro-rata charges and when he pleaded his inability to pay the pro-rata charge, accused No.1 demanded Rs.30,000/- towards bribe in lump sum to settle the matter. There must have been some material to show about the liability of PW.3 to pay the pro-rata charge. When the building in question had already water and sewerage connection, it is understandable as to how pro-rata charge could be levied or demanded. In his cross-examination on 01.09.2014, PW.3 has deposed that he has not produced any 26 documents to show that he had paid pro-rata charges in respect of the building in question.
26. Ex.P.7 is the FIR stated to have been lodged by PW.3 to the Deputy Superintendent of Police of Lokayukta on 19.03.2002 at about 9.40 a.m. What is mentioned in Ex.P.7 complaint is that he could not pay the bribe amount of Rs.30,000/-, as demanded by the accused and therefore, he met the accused once again in February and pleaded for some time to pay Rs.30,000/- bribe amount. Accused No.1 is stated to have threatened him stating that if he did not pay the bribe amount, water connection would be disconnected and accordingly, Mr. Nanjundappa, accused No.2 disconnected the water connection. He has further mentioned in Ex.P.7 stating that prior to lodging complaint, the valveman (accused No.2) came to the building and took away the water meter and at that time, the bar cashier (Ravi), Vijayendra and Shanmugam, workers in his bar protested and in spite of such protest, 27 the valveman Nanjundappa (accused No.2) disconnected the water supply and took away the water meter.
27. Though the said Vijayendra is cited as CW.7 in the charge sheet, he has not been examined by the prosecution before the Court. Even PW.3, the owner of the building has not deposed anything about the alleged disconnection of water supply in his examination-in- chief, though the alleged disconnection is stated to be the cause for demanding a sum of Rs.30,000/-. Therefore, there is no cogent and corroborative evidence as regards the liability of the complainant to pay the pro-rata charge and the demand made by the BWSSB to pay the said amount. The same has remained only on record, without being substantiated by adducing oral evidence.
28. The investigation officer should have conducted a thorough and serious investigation about such an important material aspect relating to the liability of PW.3 to pay Rs.80,000/- as pro-rata charge and the basis for 28 alleged disconnection of water supply by accused No.2 and taking away the water meter by accused No.2.
29. Even with regard to the alleged disconnection of water supply, there is no acceptable evidence at all. Ex.P.24 is the ledger extract relating to the water disconnection of details which reflects that water connection was not at all disconnected till March-2002. If really water supply was disconnected for want of payment of pro-rata charges by the building owner (PW.3), he was expected to pay a sum of Rs.80,000/- towards pro-rata charge. The BWSSB., being a statutory board, would have issued notice to the owner, calling upon him or his wife (CW.4) to pay the same and that would have been the basis for making demand for bribe of Rs.30,000/-. Therefore, in the present case, an adverse inference will have to be drawn under Section- 114 (g) of the Evidence Act.
30. It is not the case of PW.3, the owner of the building that there was no water connection for the building when 29 he had purchased the same from its erstwhile owner and that he had pleaded for fresh water connection by paying pro-rata charge. In fact, the evidence of the complainant in regard to the non-levying of pro-rata charge is completely silent and he has not whispered in his entire evidence. Virtually, he has pleaded his ignorance about his or his wife's liability to pay Rs.80,000/- pro-rata charges. In fact, PW.1 the head of the department who accorded sanction to prosecute the accused persons has also pleaded his ignorance as to whether he had come across any application of the complainant seeking fresh water connection and whether the same was pending. Admittedly, question of paying pro-rata charges would arises only when new water and sewerage connection is sought. In the present case, as already discussed, the building in question had already water and sewerage connection.
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31. Ex.P.10 is the trap mahazar drawn in the office of accused No.1 at Frazer Town. Ex.P.8 is the document containing the details of disconnection of the water meter and final readings of the seized water meters. In these documents also there is no reference about the water meter belonging to Shakti Bar and Restaurant.
32. Furthermore, it is just and relevant to refer to the written statement given by accused No.2 while recording his statement under Section-313 of Cr.P.C. In fact, the accused No.2 has specifically mentioned in his written statement that there was no official work pending in respect of the complainant's building. It is only in the office of the Lokayukta police, the police forced him to right his explanation as dictated by them and they forced him to keep the money in the office of Srinivasan, the Assistant Executive Engineer and as forced by the police, he kept the money in the office of the AEE without the knowledge of the Assistant Executive Engineer. He has 31 further mentioned that there was no work of the complainant pending with him.
33. The prosecution has strongly relied on Ex.P.9, the application of P.W.3, alleged to have written by accused No.2 for reconnection of water supply which contains the signature of Smt. Poovamma (CW.4), the wife of PW.3. The owner of the building, according to PW-9, had requested for reconnection/restoration of the water connection. This document is relied upon by the prosecution to prove that there was scope for the accused Nos. 1 & 2 to do official favour to the complainant and hence, they demanded bribe amount to waive payment of pro-rata charges.
34. When the prosecution has thoroughly failed to prove that CW.4 (owner of the building) had applied for fresh water connection, she was not required to pay the pro-rata charge. When the prosecution has failed to establish that the water connection was indeed not disconnected, the defence taken up on behalf of the 32 accused in the written statement filed while recording statement under Section 313 of Cr.P.C., appears to probabllise the defence of the accused and this defence of the accused is not properly considered by the learned judge of the Court below while evaluating the other evidence.
35. In a similar case, the Hon'ble Apex Court has held that if the accused has established at least by reasonable explanation under Section-313 of Cr.P.C. and it is found to be reasonable, but merely on the ground that he did not offer such explanation at the time when the amount was seized, if such an explanation is given at the time when the amount was seized, it would further strengthen his defence. In the case on hand, no opportunity was to accused No.2 to put his say when he was allegedly trapped while receiving the amount in Shakti Bar and Restaurant building and PW5-IO has not whispered anything about Ex.P9 in his evidence. In the present case both the accused Nos. 1 & 2 have probabilised in 33 their defence that accused No.2, being a valveman, was not in charge of disconnection or restoration of water connection. Even the responsibilities and duties assigned to the various officers and officials of BWSSB, do not disclose that the accused No.1 had the power to get the water connection disconnected or restored.
36. In fact, the prosecution has not led any cogent evidence in regard to the alleged disconnection of water supply done in the presence of Ravi, the cashier of the bar and two other workers of the said bar and therefore, that incriminating material evidence also not forthcoming against the accused. If really disconnection had been done, as found in Ex.P.7, that would have been put to both the accused. Therefore, the alleged disconnection of water connection, as found in Ex.P.9, which is in the handwriting of accused No.2 appears to be palpably incorrect. Normally, an application addressed to the government officials bears the date on which it is addressed and the date is mentioned as 19.03.2002. 34 When the prosecution has not been able to prove that there was any disconnection of water supply, it is un- understandable as to how there could be a written request for reconnection of water supply. On a plain reading of Ex.P.9, it appears that though the complainant was regularly paying water supply charges without fail, disconnection was made for non-payment of pro-rata charge or the arrears of water consumption bill. If this version found in Ex.P.9 were to be taken into consideration, it glaringly contradicts the case of the prosecution that there existed the liability of complainant paying Rs.80,000/- towards pro-rata charges and therefore, demand of Rs.30,000/- as bribe was made by the accused.
37. On careful scrutiny of the evidence let by the prosecution, as regards the official work pending with the accused and on reassessing the entire evidence in regard to the scope of accused demanding bribe to do official favour, this Court is of the considered opinion that there 35 is no acceptable evidence to prove that BWSSB., had indeed directed the complainant (PW.3) or the owner of the building (CW.4) to pay sum of Rs.80,000/- towards pro-rata charge and that water connection to the building in question had already been disconnected for want of payment of pro-rata charge so as to coerce or compel the complainant to pay the bribe amount. Accordingly, point No (1) is answered in the negative.
38. Point no.(2): The allegation against the appellants herein is that they demanded the complainant- T.M.Bheemaiah, husband of PW4-Smt.Poovamma, owner of Shakti Bar and Restaurant to pay Rs.30,000/- as bribe for not levying pro-rata charges in respect of water connection. According to the prosecution, this was an official favour to be shown and therefore, demand was made by the 2nd accused and in turn he paid the same to the 1st accused. It is alleged that the 2nd accused received Rs.30,000/- as bribe amount at 1.30 p.m. on 19.3.2002 in Shakti Bar and Restaurant from PW3 and 36 he was caught in the trap laid by the IO. Thereafter he was taken to the office of the 1st accused and amount of Rs.30,000/- was paid by the 2nd accused to the 1st accused who received it and kept it in his almirah.
39. Of course the hand wash of the fingers of both hands of 2nd accused showed positive, indicating handling of tainted money by him. This would indicate that he had received the money from PW3. What is argued before this court by the learned counsel representing Lokayukta is that a presumption is to be drawn under Section 20 of the Act and the same will have to be rebutted effectively by the accused. Mere possession of money would not be adequate to raise a presumption under Section 20 of the Act. The trap laying officer should give an opportunity to the accused to explain about the receipt of bait money, lest, the credibility of such trap would be weakened. Normally the procedure is to give an opportunity to the accused Govt. official to put his say either orally or in writing 37 about the receipt of money, soon after washing hands in sodium bicarbonate solution. If he is not in a position to write, he should be asked to give his oral say which will have to be reduced into writing in the presence of the complainant and independent witnesses, and thereafter it will have to be read over to him and got signed by all concerned.
40. In the present case, the IO has not complied with this important procedure and he has not spoken in his evidence about the receipt of explanation by accused no.2 vide Ex.P12. Acceptance of bribe or possession of tainted money by a public servant must be preceded by demand in terms of Section 7 of the Act and the entire evidence has to be appreciated properly. If the prosecution is not able to establish the demand, benefit of doubt will have to be extended to the accused. The procedure to be adopted is to first take an account of what happened, from the shadow witness and then the 38 complainant and thereafter to ask the accused to produce the amount, if he had received.
41. Ex.P7 is the first information stated to have been lodged by PW3-Bheemaiah at 9.40 a.m. on the morning of 19.3.2002 in the office of the Deputy Superintendent of Police, Lokayukta, Bengaluru. He has given an account of what had happened earlier to that date. It is clear from Ex.P7 that the building in which the bar and restaurant was being run, was purchased by PW3 in the name of his wife and it had water and sewage connections at that time itself. According to him, 1st accused and Nanjundappa-valveman of BWSSB was coming to the bar and restaurant often and used to threaten him that they would disconnect water and sewage connections, if pro-rata charges was not paid. The 1st accused is stated to have told him that there was no necessity to pay any deposit as there was earlier connection and PW3 had asked him not to trouble him in any manner. Then 2nd accused is stated to have told 39 him to meet 1st accused-Srinivasan and get the dispute settled with him, lest, he would disconnect water supply. As per Ex.P7, in the month of January 2002, PW3 is stated to have met Srinivasan in his office at High Grounds, C-2 Sub-division, and he was told that Rs.80,000/- had to be paid as pro-rata charges. PW3 is stated to have pleaded his inability to pay such huge amount of Rs.80,000/- and hence, 1st accused came out of his office and demanded Rs.30,000/- as bribe so that he would settle the entire dispute. He had further threatened him that sewage and water connections would be disconnected if Rs.30,000/- was not paid.
42. The date on which PW-3 met 1st accused and threatened him to disconnect sewage and water connections is not forthcoming in Ex.P7. Even the date on which PW3 met the 1st accused in regard to pay pro- rata charges is not forthcoming, except that he met him in January 2002. As per Ex.P7, 2nd accused- 40 Nanjundappa had told him to pay pro-rata charges in the month of January.
43. PW-3, in his examination-in-chief, has deposed that one day in January 2002, Nanjundappa told him that he had to pay penalty, or the meter would be disconnected. He is stated to have met him in January 2002. He has deposed that as indicated by the 2nd accused, he went to meet the 1st accused and he told him (PW3) to pay Rs.80,000/-. The date and month of meeting Srinivasan is not forthcoming. PW3 has further deposed that again he was threatened that water connection would be disconnected. It is his case that one day when he was not in the bar, 2nd accused came and disconnected water connection and took away the meter in spite of protest by his children, and therefore he went to Lokayukta on the morning of 19.3.2002. Whether the alleged disconnection was made on 19.3.2002 itself or just a day prior to it or a few days earlier, is not forthcoming. Except the self-serving statement of PW3 in 41 regard to meeting of accused nos.1 and 2, we do not find any cogent evidence in this regard.
44. What is deposed by PW3 is that in the month of February 2002, water connection was disconnected and he was not present in the premises at that time. He had orally asked the 1st accused about the same. It is not the case of PW3 that as a result of such disconnection of water supply, Shakti Bar and Restaurant could not be run. The water meter is also not produced before court. Nanjundappa-valveman was not competent to disconnect water supply and 1st accused had no role to play as per the chart containing the duties and responsibilities of Assistant Executive Engineer, Executive Engineer and meter reader.
45. What is deposed by PW3 is that the 2nd accused was frequently visiting their Bar and Restaurant and he did not come after water connection was disconnected. Even in Ex.P7, therefore is no reference about 42 Nanjundappa coming to the Bar and Restaurant often prior to the disconnection of water supply. The normal course is to submit an application seeking restoration of water supply. But PW3 has specifically admitted that he did not file any application in writing to the higher officers of accused nos.1 and 2 after disconnection of water supply to Shakti Bar and Restaurant.
46. Ex.P8-trap mahazar discloses that the water meter had been removed and on being asked as to where it was kept, they had told the IO that it had been kept in Coles Park Service Station of BWSSB. Ex.P10 is the mahazar stated to have been drawn on 19.3.2002 between 8.00 p.m. and 8.45 p.m. regarding the seizure of water meter bearing No.493820 from Nanjundappa. There is no evidence to show that meter no.493820 actually belonged to the water connection of Shakti Bar and Restaurant. In the book maintained in connection with disconnection and re-connection maintained up to 20.1.2002, there is 43 no reference about disconnection of water supply to Shakti Bar. There is a specific mention to that effect in Ex.P10 in the first page itself.
47. In the decision reported in 2006 SCC (Crl.) 401 between T.SUBRAMANIAN .v. STATE OF TAMILNADU, the Hon'ble apex court has held that mere proof of receipt of money by the accused in the absence of proof of demand and its acceptance is not sufficient to establish the guilt of the accused.' In the case of STATE OF PUNJAB .v. MADAN MOHANLAL VERMA (AIR 2013 SC 3368), referring to earlier decisions, the Hon'ble apex court has once again reiterated that 'the demand for illegal gratification is sine qua non expression constituting an offence under the Prevention of Corruption Act and that in exceptional circumstances, the court should not hesitate to reverse the judgment of acquittal passed by the court below if the findings are found to be perverse, i.e. if the conclusion arrived by the court below are contrary to the evidence placed on 44 record, or the court's approach in respect of dealing with evidence is found to be patently illegal leading ot miscarriage of justice.' Necessary observation is made in paragraphs 6 and 7 of the decision.
48. In the case of C.M.GIRISH BABU .v. C.B.I., COCHIN ([2009] 3 SCC 779), in a matter pertaining to recovery of money from the accused, it is held that the presumption under Section 20 of the Act cannot be raised automatically as the burden lies of the State to prove demand and acceptance beyond all reasonable doubt.' In the case of STATE OF MAHARASHTRA .v. DNYANESHWAR LAXMAN RAO WANKHEDE ([2010] 2 SCC (Crl.) 385), the Hon'ble apex court has considered the provisions Sections 101 and 102 of the Evidence Act at length and has specifically held that 'before the accused is called upon to explain how the tainted money was found to be in his possession, the foundational facts must necessarily be established by the prosecution.' As already discussed, it is incumbent upon the court to 45 consider the explanation offered by the accused when examined under Section 313, Cr.P.C. and the same will have to be tested on the touchstone of preponderance of probabilities and proof beyond reasonable doubt should not be insisted.'
49. In a trap case, the complainant will normally be an interested person, in the sense, he would be interested in getting the accused trapped since accused is stated to have not acted legally, according to him. Hence his evidence needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance. In the present case, Ex.P7-complaint lodged to the Dy.Superintendent of Police, Lokayukta, bears the signature of the complainant. It is his case that he met 2nd accused in January 2002, but in Ex.P7, there is no reference at that point of time, he demanded bribe. What is forthcoming in Ex.P7 is that 2nd accused told him to meet 1st accused and he demanded Rs.30,000/- as bribe in order to 46 exempt him from paying pro-rata charges of Rs.80,000/-. As already discussed, the exact dates on which he met accused nos.1 and 2 are not forthcoming.
50. Whether the evidence of PW3 really inspires confidence in the mind of the court, is the question. His evidence will have to be critically evaluated and we will have to see whether it is done by the learned trial judge. PW3 has specifically deposed that he did not complain to the superiors of accused nos.1 and 2 and there was no hindrance for him to have brought it to the notice of the higher-ups. The alleged demand stated to have been made by accused nos.1 and 2 prior to the trap is not established beyond reasonable doubt.
51. PW2-Channakeshava is stated to be the shadow witness who accompanied PW3 to Shakti Bar and Restaurant. He is also an attestor to the entrustment mahazar prepared in the office of Lokayukta. He has given an account as to how entrustment mahazar was 47 drawn in the office of Lokayukta. He has deposed that himself and PW3 went to Coles Park and then to Shakti Bar. Accused no.1 is stated to have telephoned PW3 to go over to his office and therefore, himself and PW3 went to the office of the 1st accused. complainant is stated to have asked the 1st accused about the meter and 1st accused is stated to have demanded him to pay money, and the complainant is stated to have told him that he had brought the money.
52. According to PW2, 2nd accused was also present when the 1st accused told PW3 that 2nd accused would receive the money and asked the complainant to give the money to Nanjundappa. Therefore, all of them came to the bar from the office of the 1st accused. The deposition of PW2 discloses that himself and Bheemaiah went and sat in the upstairs of the bar and his son had also come. After some time, 2nd accused Nanjundappa also came, is the assertion of PW2 in the examination-in- chief found in page 3. Then Nanjundappa is stated to 48 have asked the complainant to write an application about the water meter and thereafter Nanjundappa himself wrote the application. Bheemaiah-PW3 took out the money and gave it to the 2nd accused. Nanjundappa received the money from his right hand, counted it and kept in his right side pant pocket. Suddenly PW3 gave a message from the mobile he had and 2nd accused is stated to have assured him that he would re-connect the water meter. Suddenly Lokayukta police came and held him.
53. The evidence of PW2 does not disclose that Nanjundappa demanded money from PW3 and therefore, PW3 gave him. The crucial evidence in regard to the demand made by Nanjundappa is conspicuously absent in the very examination-in-chief of PW2. In his cross- examination conducted on 18.2.2015, PW2 has deposed that at the time of giving money to the 2nd accused, he was outside the bar and he remained in the bar for about two hours. It is his case that PW3, after entering 49 the bar, came out within half an hour and then conveyed the message to Lokayukta police. The examination-in-chief would indicate that he was very much present with PW3 when the accused received the money; whereas in his cross-examination, he has specifically given a go-by about this material aspect. Interestingly he is not cross-examined on this material aspect by the prosecution. This material contradiction stares at the prosecution case and goes to the very root of the prosecution case regarding the alleged demand made by 2nd accused to PW3.
54. The case of the prosecution is that PW2 and PW3 were sent by PW5 to Shakti Bar and the raiding party had stood outside watching for a signal from PW3. According to PW5, strict instruction had been given to PW2 to overhear the conversation between PW3 and the 2nd accused and also to see what would transpire between them, and then to report the same to him. PW2, PW3 and PW5 have stated that after going to Shakti Bar, PW3 received a mobile call from the 1st accused to go 50 over to his office and accordingly all of them went near the office of the 1st accused. It is his case that when PW3 went as directed, 1st accused asked him as to whether he had brought the money, and to give it to 2nd accused-Nanjundappa, and in turn asked Nanjundappa to receive the money from PW3. Therefore, PW2, PW3 and Nanjundappa came back to Shakti Bar.
55. PW4-Narayanappa is the shadow witness relating to the trap laid in the office of the 1st accused. According to PW5, PW4 was also present when all of them went near Shakti Bar for the first time and he was part of the trap party waiting outside the bar. PW4 has not spoken anything about PW2 and PW3 going to the office of the 1st accused and coming back to Shakti Bar after some time. He has deposed in examination-in-chief that himself, a witness and Lokayukta police inspector went towards Shakti Bar near Coles Park and the vehicle was stopped at a distance of 200 mts. He has further deposed that Channakeshava and Bheemaiah, i.e. PW2 51 and PW3 went to Shakti Bar and at that time, all of them went near the jeep. According to PW4, after some time, Bheemaiah came out and passed a signal and called Lokayukta police and told him that the 2nd accused had received the money and therefore, the hands of Nanjundappa were held. Bheemaiah is stated to have told the police that it was kept in his pant pocket by the 2nd accused and the said cash was recovered. Thereafter hand-wash procedure was effected. If really PW2 and PW3 had gone to the Bar at 12.30 p.m. and after some time, they went to the office of the 1st accused and then returned to Shakti Bar, this material witness-PW4 would have spoken to that effect. In the light of this serious omission which amounts to contradiction insofar as PW4's evidence is concerned, he is not cross-examined by the prosecution and this stares glaringly at the evidence of PW2, PW3 and PW5.
56. In order to lay trap at the Bar, there must have been some information about 2nd accused coming there 52 to receive the bribe. None of the witnesses have spoken to that effect. Even PW3-Bheemaiah has not stated anything about 2nd accused telling him that he would come to the Bar and Restaurant to receive the money and therefore they went to the bar. In fact, PW3 has deposed that himself and PW2 were asked by the IO to go to the bar and accordingly both of them went and thereafter he received a call from the 1st accused to go to his office and hence, he went to the office of the 1st accused where he was asked as to whether he had brought the money. In view of his affirmative answer, 1st accused is stated to have told PW3 to give the same to the 2nd accused, and in turn 2nd accused was asked to receive Rs.30,000/- from PW3 and thereafter to come to his office at 3.00 p.m. with the application. Saying so, 1st accused is stated to have gone away from his office and 2nd accused asked PW3 to follow him to the bar, where according to PW3, he (2nd accused) brought a paper and started writing the 53 application and obtained his signature and later on asked whether he had brought the money.
57. PW5-IO has given a different version in his examination-in-chief. He has deposed that he had instructed PW3 to give a signal. Two cell phones, according to PW5, were placed by PW3 with him and PW3 had told him that he would communicate acceptance of bait money (M.O.12) over mobile phone. PW5 is stated to have retained one phone and returned the other mobile to PW3 and instructed PW2 to accompany PW3 in order to watch as to what would transpire between PW3 and accused nos.1 and 2. According to him, he reached the place near Shakti Bar at 12.30 p.m. and stopped his vehicle about 250 ft. from Shakti Bar and PW2 and PW3 proceeded towards the bar. It is his case that at about 1.00 p.m., PW2 and PW3 came out of the Bar and Restaurant and proceeded to BWSSB service station located near Coles Park. According to PW5, after PW2 and PW3 reached the office, 54 a person unknown to him was found talking to PW2 and PW3 and pointed out to another stranger. Later on, one among the two, boarded the jeep and left the place and PW2 and PW3 went to Shakti Bar. The case of PW2 and PW3 is that demand was made by the 1st accused in the presence of 2nd accused in his office and 1st accused asked PW3 to give the amount to the 2nd accused and 2nd accused was instructed to receive the same. PW5 does not speak anything about the presence of 2nd accused in the office of the 1st accused at the relevant point of time or 2nd accused coming to Shakti Bar either prior to the arrival of PW2 and PW3, or after their arrival.
58. PW3-Bheemaiah has deposed that 2nd accused asked him to go to the bar and he followed him and that he (PW3) went and sat on the third table and Channakeshava was sitting by his side. It is his case that the 2nd accused brought a paper and started writing the application sitting in front of him and thereafter asked him to put his signature, and asked him as to 55 where was the money was. Then PW3 is stated to have paid the amount to him.
59. PW2 who is stated to be the shadow witness, had accompanied PW3 and he does not speak anything about the demand made by the 2nd accused except stating that Nanjundappa asked the complainant to write an application for water meter and thereafter Nanjundappa himself wrote the application. The presence of Bheemaiah's son at the relevant point of time is also spoken to by PW2 and other witnesses have not spoken to that effect. The sketch of the Bar and Restaurant where the first trap was laid, is marked as Ex.P26. The case of PW3 is that PW2 had sat by his side. He has specifically deposed that he went to the bar and Channakeshava was sitting by his side. The contents of the sketch speaks contrary to his oral version. Accused is shown to have sat just opposite the complainant and shadow witness-PW2 was sitting in another table and the distance between these two tables was 1.3 mts. If the 56 evidence of PW3 is taken into consideration, Nanjundappa came there after some time. PW2 does not speak anything about the approximate place where they had sat and where the accused had sat. PW2 says that after some time, 2nd accused-Nanjundappa also came there. Neither PW3 nor the IO have spoke anything about the accused being asked to give an explanation and 2nd accused giving any explanation. But PW4 has deposed that accused nos. 1 and 2 gave statement to CW16 in the office of the 1st accused. There is a reference about 2nd accused giving a written explanation to PW12 while drawing mahazar in the office of the 1st accused. The best person to have spoken in this regard was PW5, but he has not testified anything about it.
60. Ex.P8 is an important document relating to mahazar drawn in connection with the trapping of accused nos.1 and 2. According to prosecution case, 2nd accused was trapped in Shakti Bar and 1st accused was trapped in his office. Ex.P8 discloses that between 1.45 57 and 2.55 p.m., Panchnama was got written in Shakti Bar, but no separate mahazar is forthcoming. Ex.P8 is a comprehensive document purporting to cover the trap laid in both the places and it is ununderstandable as to how it could be done. If really it was done at the time stated, signatures of the IO and shadow witness should have been obtained there itself. Such a comprehensive mahazar is unknown to law, especially in a case like this.
61. According to Ex.P8, mahazar was drawn in the office of the 1st accused between 3.45 p.m. to 7.35 p.m. and thereafter IO and PW3 went to Coles Park office to inspect the meter and to collect necessary documents. Ex.P8 contains the signature of Narayanappa-PW4, Bheemaiah-PW3,V.P.M.Swamy-PW5 and Channakeshava PW2. PW2 has deposed that Ex.P8 was written in the office of the 1st accused and that PW3-Bheemaiah did not tell him anything about what transpired in the chamber of the 1st accused and he cannot say who instructed PW2 to convey the signal. He has further deposed that PW3 58 had not entered the office of 1st accused along with 2nd accused and PW4.
62. Narayanappa-PW-4 who is the attestor to Ex.P8 has deposed that it was 3.00 p.m. when he went to the office of CW16-IO and remained there till 7.00 p.m. and then went to his house. This material aspect is not challenged by the prosecution by cross-examining him with the permission of the court. He has further deposed that he had not told before IO that he asked PW3 as to where the money was. If he was in the office between 3.00 and 7.00 p.m. and later went to his house, the very execution of Ex.P8 in the office of the 1st accused appears to be highly doubtful. It also appears his signature was obtained at a later point of time and thus weakens the authenticity of an important document like Ex.P8.
63. PW4 has specifically deposed that he had been to the office of CW16 twice and as per the sketch, he was outside the office and there was a door to the office of 1st accused. He is stated to have given signal at the door. If 59 he had sat outside the chamber of the office of 1st accused, it is ununderstandable as to how he could hear or know as to what transpired in the chamber of 1st accused.
64. It is relevant to see Ex.P25-sketch relating to the office of 1st accused where the trap was laid. The position of Srinivasan is shown as sitting in front of the table with 2 chairs on the other side of the table. The position of Nanjundappa is shown to be standing by the side of the table, and the position of PW4 is shown as having stood outside the door of the chamber of accused no.1. The position of IO is shown as having stood outside the building where the chamber of 1st accused was situated. I think it is very difficult to attach any credibility to the mahazar marked as Ex.P8 stated to have been drawn in the office of the 1st accused in the light of PW3 being not present when the amount was given by 2nd accused and PW4 having stood outside the door of the chamber of 1st accused. This also assumes 60 importance in the light of PW4 being in the office of CW16 from 3.00 p.m. to 7.00 p.m. and later on going to his house.
65. It is to be seen that according to the prosecution, 2nd accused was already in the custody of Lokayukta police soon after the trap was laid in Shakti Bar. If he was really taken to the office of the 1st accused to induce him to pay the amount of Rs.30,000/- received by him, the whole episode appears to be an 'Induced Payment of Bribe.' If PW5 had gone along with PW2, PW3 and other official witnesses near Shakti Bar at 12.30 p.m., and if PW2 and PW3 went to the office of the 1st accused and came back, the trap would not have been laid at 12.50 p.m. as deposed. They could not have gone near the office of the 1st accused and come back. All that PW3 has stated is that he remained in the Bar and Restaurant for nearly 3 hours from 12.30 p.m. to 2.55 p.m. and the IO told him and PW2 to remain in the Bar and Restaurant.
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66. It is interesting to note that the allegation against the accused is that 2nd accused paid money to the 1st accused. As already discussed, 2nd accused was already in the custody of police and using him to pay the money and making him as accused would violate the principles of the Evidence Act as also Article 20 (3) of the Constitution of India.
67. The case of the prosecution is that accused no.2- Nanjundappa demanded a bribe of Rs.30,000/- and therefore, he was trapped in Shakti Bar on 19.3.2002 by the IO. If the prosecution had left him (2nd accused) at that stage, it would have been something different. The case of the prosecution is that 2nd accused was instructed to pay the bribe amount of Rs.30,000/- and he had demanded and received was expected to be paid to 1st accused-Srinivasan and therefore, the amount found in MO-12 was again put into his pocket and 2nd accused was asked by the IO to meet 1st accused in his office and pay the same. This role of 2nd accused is 62 almost equivalent to a star witness in the case of the prosecution. Therefore, it is relevant to see Section 132 of the Indian Evidence Act and the proviso found thereunder. In the case of LAXMIPAT CHOURASIA .v. STATE OF MAHARASHTRA (1968 S.C. 938), the scope of entire Section 132 of the Evidence Act is discussed at length.
68. As per the facts in LAXMIPAT CHOURASIA's case, three brothers had been convicted for offences punishable under Section 120B, I.P.C. and Section 167(18) of the Sea Customs Act, 1878, and they were part of an international gold smuggling organization, and the kingpin was a Chinese citizen living in Hongkong. One lady Ethyl Wong, an airhostess of Air India was also part of the gang and had carried gold on several occasions. Ethyl was examined as a prosecution witness in the case and she had given a graphic account of the conspiracy and the parts played by the accused and her 63 own share in the transaction. Her testimony was clearly that of an accomplice.
69. Dealing with the case, the Hon'ble apex court has held that prosecution was bound to prosecute her, if they thought that her evidence was incriminating herself. Ethyl could not have been prosecuted in view of the proviso to Section 132 of the Evidence Act, even if she gave evidence incriminating herself. She was a competent witness. In India the privilege of refusing to answer has been removed so that temptation to tell lie may be avoided, but it was necessary to give protection as per the proviso to Section 132. This protection, as per the apex court, is fortified in Article 20(3) of the Constitution of India which mandates that no person accused of an offence shall be compelled to be a witness against himself/herself. This Article protects a person who is accused of an offence and not those questioned as witness.
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70. Hence the written explanation stated to have been given by 2nd accused-Nanjundappa to the IO, which fact has not been spoken to by the IO, is self-incriminatory and hence, inadmissible in evidence. This legal aspect has been totally ignored by the trial court.
71. The decision ion the case of LAXMIPAT's case is referred to and relied upon by the Hon'ble apex court of late in the case of DINESHKUMAR .v. STATE (2015 (7) SCC 497) relevant pages 520 and 521. The sweep of Article 20 fell for consideration in the case of NANDINI SATHPATHY .v. P.L. PUNI (1978(2) SCC 424). It is held that the protection afforded under Section 161 (2) of Cr.P.C. is wider than the protection afforded by Article 20(3) in some respects. The policy of Section 132 appears to secure the evidence from whatever sources it is available for doing justice in a case brought before the court; but in the process, if a witness makes a statement which will incriminate him/her to tend or expose to penalty or forfeiture of any kind, proviso to Section 132 65 grants immunity to such witnesses declaring that no such incriminating answer shall subject him/her to any arrest or prosecution. Law enunciated to this effect in the case of QUEEN-EMPRESS .v. GOPAL DOSS (ILR 1881 Mad.271), is followed in R.DINESHKUMAR's case.
72. As such, 2nd accused who was accused of having allegedly demanded and received bribe of Rs.30,000/-, cannot be asked to be a witness to pay the same to accused no.1, that too, at the instance of the IO who had already taken the 2nd accused into his custody. This procedure adopted by the IO in the present case is virtually unknown to law and established procedure. Even drawing up a comprehensive mahazar in respect of alleged receipt of bribe money by accused nos.1 and 2 at two different places is also unknown to law.
73. Ex.P27 is the FSL report relating to hand-wash of the accused. The presence of phenolphthalein powder is detected in both the left and right hand of 2nd accused, 66 whereas it is not detected in both the hands of 1st accused and the FSL report is negative about the presence of phenolphthalein in the hand wash of 1st accused. The theory of the prosecution that 2nd accused gave phenolphthalein smeared notes to the 1st accused and he received the same in his left hand and kept it in his almirah, is palpably false, or the prosecution has thoroughly failed to prove the very receipt of tainted money by the 1st accused from accused no.2. It is in this regard the explanation given by the 1st accused soon after the trap laid in his office is relevant. The written explanation given by 1st accused in Ex.P13 is as follows:
'Adverting to the above, I would state that I was on disconnection drive for ..... (not legible) from 10.00 a.m. to 2.00. p.m. on Infantry Road and Shivajinagar. I came to office at 3.00 p.m. and a ...... (not legible) call came and I was busy talking in the .... (not legible), the valveman Nanjundappa rushed to the side and opened the Godrej and I thought, he is keep a correspondence paper. But in a fraction of a minute, the Lokayukta staff came and started alleging that I have taken the money. Later they washed my hands in front of the chemist and found no change in the colour of the two ....... (not legible), they used.67
I have no knowledge about the drama that went through and totally innocent in the act.
The disconnection staff along with me are:
1) Driver-Al...(not legible)
2) Inspector-Manjegowda
3) Meter reader-Puttaswamy
4) And disconnection staff.
I may kindly be exonerated of the charges.'
74. The 1st accused is examined under Section 313, Cr.P.C. and the same is found in red ink page 246. He has specifically stated that neither PW3 nor CW4 had filed any application relating to the water connection and that at no point of time, water inspector had disconnected water supply to Shakti Bar. He has further stated that pro-rata charges had neither been levied nor demanded and the IO has not stated on this aspect. In fact the IO has specifically deposed that he did not conduct investigation on this aspect either in regard to the alleged levying of pro-rata charges or the demand made therefor. As already discussed, records made 68 available by the prosecution do not even remotely indicate that water connection had been disconnected for non-payment of pro-rata charges and prior to that, demand had been really made for bribe.
75. The evidence of PW5-police inspector discloses that CW14-Dy.S.P. Narayanappa had gone to the office of the 1st accused and there was some exchange of words between him and 1st accused. In fact, PW3 has deposed that he knew Narayanappa who was working in Lokayukta. He is stated to have initially told him (PW3) to meet the inspector. In fact, Ex.P7 was addressed to Dy.S.P.-Narayanappa. PW3 has deposed that after entry of Lokayukta staff, some quarrel took place between the 1st accused and CW14-Narayanappa, but he did not observe the details of exchange of words between the two. Non-examination of such a material witness who was a senior police officer working in Lokayukta paves way for drawing an adverse inference under Section 114(g) of the Evidence Act against the prosecution.
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76. PW3 has further deposed that he remained in the bar nearly for 3 hours from 12.30 p.m. to 2.55 p.m. If he had really remained there at that time, the theory of receiving call on his mobile from the 1st accused and later on himself and PW2 going to the office of the 1st accused and 1st accused instructing them to pay the money to the 2nd accused, appears to be palpably false. These inherent and glaring contradictions have not at all been considered by the trial court, while evaluating the evidence as a whole.
77. The case of PW5 is that PW3 had two mobiles; he retained one and gave the other to him. He was intimated through this mobile by PW3 after the trap as laid in the bar. There are no call details in regard to the same and the numbers of those to mobiles are also not forthcoming. This important link is missing. PW3 has deposed that the IO had instructed him to pay the tainted notes to the 2nd accused and thereafter meet the 1st accused. PW5-IO has not deposed anything in this 70 regard, except stating that he had instructed PW3 to go to the bar and PW2 to follow him and observe what would transpire between them. PW3 has deposed that he was told by the IO not to enter the office of the 1st accused with PW2, and therefore he remained outside. The IO has not deposed anything about this. In fact, PW3 should have been present when the amount was allegedly paid by the 2nd accused to the 1st accused.
78. The evidence of the complainant is self- contradictory, and the evidence of PW2 and PW4 are inherently contradictory to each other. Admittedly PW2 was not an eyewitness to say as to what transpired in Shakti Bar between PW3 and the 2nd accused since he was very much outside. Similarly PW4 had also stood outside the chamber of the 1st accused when 2nd accused allegedly handed over the tainted money to the 1st accused. There is absolutely no corroboration in respect of material particulars. In fact PW2 admits that as per the instruction of Dy.S.P. Narayanappa-CW-14, he 71 accompanied PW3 to the bar. Prosecution has not given any explanation as to the non-examination of a material witness like Dy.S.P. Narayanappa, more particularly when he was stated to be present in the office of the 1st accused when the trap was laid. Therefore, the suggestions put to material witnesses that the 1st accused was falsely implicated at the instance of CW14- Narayanappa cannot be considered as ill-founded.
79. Non-payment of money by the 2nd accused to the 1st accused is further supported by Ex.P27-FSL report. As already discussed, the report in regard to hand-wash of both the fingers of the 1st accused is negative. The learned judge has attached more importance to the statements stated to have been given by accused nos.1 and 2. Learned judge has held that the accused have not probablised their defence. As already discussed, the initial burden cast on the prosecution to prove the foundational facts was heavy and unless the initial burden is discharged, onus does not shift on the other 72 side, in spite of the presumption available under Section 20 of the P.C. Act.
80. In fact, in the latest decision rendered by the Hon'ble apex court in the case of C.SUKUMARAN .v. STATE OF KERALA (2015 AIR SCW 951), it is again reiterated that demand for illegal gratification by the accused is sine qua non for constituting offences under the Prevention of Corruption Act. It is made clear that the burden to prove the allegation against the accused with regard to acceptance of illegal gratification from the complainant lies on the prosecution. There, the complainant had not supported the prosecution case in regard to seizure of Rs.1,500/- received as bribe, and there was no evidence in regard to the demand made by the accused for bribe from the complainant. Apart from this, the colour of the solution had not changed into pink. The theory of the prosecution that by virtue of lapse of time the colour had faded, is not accepted by the apex court.
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81. The learned trial judge should have assessed the entire evidence in the light of the defence taken up by the accused and their written statement furnished under Section 313, Cr.P.C. If two views are possible in a criminal case, one in favour of the prosecution and the other in favour of the accused, the latter would normally prevail.
82. As already discussed, in the case of STATE OF MAHARASHTRA .v. M.V.DHYANESHWAR (supra), the Hon'ble apex court held that while invoking Section 20 of the P.C. Act, the court is required to consider the explanation offered by the accused, if any, and the same will have to be tested on the touchstone of preponderance of probabilities and proof of reasonable doubt should not be insisted.
83. In regard to the negative report of the hand wash of 1st accused, learned judge has made relevant discussion in paragraph 31 of the judgment. According 74 to the trial court, the change of colour of sodium bicarbonate solution would depend upon the quantity of phenolphthalein powder in his fingers. Learned judge has held that it is not specific as to whether all the five fingers including the palm of the 1st accused came in complete contact with MO.12 notes or not. According to the trial court, PW-5 has asserted that the hand-wash of the 1st accused turned to pale pink and hence, the assertion of PW-5 cannot be disbelieved.
84. Even if one were to accept for the sake of arguments that it had turned into pale pink and has, over a period of time faded, at least the FSL report marked as Ex.P27 would have shown positive for the presence of phenolphthalein. In fact in C.SUKUMARAN's case (supra), such an explanation given on behalf of the prosecution in regard to fading of pink colour over a period of time is not accepted. In order to prove such a contention, the prosecution should have examined the author of Ex.P27. Hence this reasoning of the trial 75 court neither has logic nor reasoning and therefore, not at all acceptable.
85. Further the trial court, in paragraph 33 of the judgment, has held that non-correspondence of the water meter number found in Ex.P20 vis-à-vis will not affect the credibility of the evidence adduced by the prosecution because the disconnection of water supply is not seriously disputed by the accused. But elaborate reasons have been assigned by this court as to how the prosecution has miserably failed to prove the aspect of disconnection of the water supply.
86. Learned judge has held in paragraph 35 that PW- 5 recorded the statements of witnesses and that he recorded Exs.P18 to P27 and the same is not under challenge. But this court is not able to understand as to how the learned judge has opined so when the alleged seizure of water meter, disconnection of water supply and 76 written explanation of 2nd accused are not proved beyond reasonable doubt.
87. What is further held is that nothing is brought out by the 1st accused about recovery of M.O.12 from his possession and that proved facts show that water meter was taken out. As already discussed, Ex.P27 clearly indicates negative report and hence, handling of bait money by the 1st accused is not established. PW-4 does not corroborate the alleged payment of money by 2nd accused to the 1st accused. The entire evidence of the prosecution is assessed in the background of the presumption available under Section 20 of the Act, 1988, without keeping in mind the legal position that clear proof of demand as per Section 7 of the Act is sine qua non for proving the receipt of bribe money.
88. In paragraph 37 of the judgment, the learned judge has held that 2nd accused has failed to prove that Ex.P9 was obtained by force and that the evidence of PW-3 is 77 convincing. As already discussed, the very coming into being of Ex.P9, an application stated to have been written by the 2nd accused, is contrary to the facts of the case, since BWSSB had not levied any pro-rata charges in the light of the building having water connection at the time of purchasing the building from Smt.Yamunadevi. Just because some suggestions are not put to material witnesses on behalf of the accused, the same will not strengthen the case of the prosecution, unless foundational facts are proved beyond reasonable doubt.
89. In paragraph 24 of the judgment, the learned judge has held that the assertion of PW-3 that 2nd accused demanded and accepted M.O.12 from him is not seriously assailed while cross-examining him. Just because it is not suggested to PW-5 that PW-3 did not give him any statement about the demand made by 2nd accused, it does not mean that 2nd accused demanded money. The evidence of PW-2 glaringly contradicts the version of PW-3, evidence of PW-4 is totally silent about 78 PW-5, PW-2 and PW-3 going to the office of the 1st accused in the middle and again coming back to the bar and restaurant and this casts a serious doubt about the demand for bribe by the 2nd accused and receipt of the same. Even the evidence of PW-3 that he was contacted by 1st accused over his phone to come to his office and hence a circumstance indicating demand made by 1st accused to PW-3 is not at all proved, especially in the light of PW-3 having remained in the bar from 12.30 p.m. for three hours.
90. Suffice to state the learned judge has not critically evaluated the evidence in right perspective. He has failed to note that the initial and heavy burden cast upon the prosecution is not effectively discharged to shift the onus to the accused. Glaring and inherent inconsistencies found in the evidence of material witnesses have been ignored on the basis of surmises and conjectures.
91. On re-appreciation of the entire evidence, this court is of the considered opinion that prosecution has 79 failed to prove the alleged demand for bribe in terms of Section 7of the Act and consequential receipt of money preceded by demand by 2nd accused and the prosecution has failed to prove the very demand made for and receipt of money by 1st accused-Srinivisan. Thus point no.(2) is answered in the negative.
92. Point no.(3): In the light of negative finding on point nos.(1) and (2), the trial court is not justified in convicting the accused for the offences punishable under Sections7 and 13(1)(d) of the Act, 1988. Hence the judgment of conviction is liable to be set aside in entirety.
93. Point no.(4): In view of the findings on points (1) to (3), the appeal is to be allowed in its entirety and consequently both the accused are to be acquitted of all the offences for which they have been charged.
95. In the result, the following order is passed:
ORDER 80 The appeal filed under Section 374, Cr.P.C. is allowed. The judgment of conviction and sentence passed against the appellants herein in Spl.C.C.87/06 on the file of the XXIII Additional city Civil and Sessions Judge and Special Judge, is allowed. Consequently both the appellants-accused are acquitted of all the offences for which they have been charged.
Bail bonds executed by them and their sureties before this court shall stand cancelled. The amount of fine imposed upon them, if deposited, be returned to them after the appeal period is over.
Sd/-
JUDGE vgh*/VR