Bangalore District Court
The State Of Karnataka vs Smt. S.K.Dhanalaxmi on 1 March, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 1st MARCH 2017.
Spl. C.C.No. 89/2011
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Smt. S.K.Dhanalaxmi, Aged 38 years,
W/o Manjunath,
Co-Operative Development officer,
Office of the Registrar of
Co-Operative Societies,
No.1, Ali Asgar Road, Bengaluru 52,
R/a No.G-12, NGO Quarters,
6th Block, Rajajinagara, Bengaluru 10.
(Rep by DMS Associates, Advocates)
*****
2 Spl. C.C. No.89/2011
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 29-10-2010.
of offence:
3. Date of First Information 29-10-2010.
Report:
4. Date of Arrest: 29-10-2010.
5. Date of Commencement 23-03-2013.
Of recording of evidence:
6. Date of Closing of evidence: 01-12-2016.
7. Date of Pronouncement of 01-03-2017.
Judgment.
8. Result of the case: Accused is acquitted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, Bengaluru City Wing has charge sheeted the above named accused with an allegation that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as a Co-
operative Development Officer in the office of Registrar of Co-
operative Society, Ali Asgar Road, Bengaluru. One Yunis Mercy, 3 Spl. C.C. No.89/2011 Manager of M/s. Manasa Center for Development and Social Action Society, Bengaluru, has lodged a complaint before the Lokayuktha Police on 29-10-2010 by alleging that when she approached the accused for the renewal of their society, accused demanded the bribe amount of Rs.3,500/- from her. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.51/2010. The Investigating Officer has secured the official witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. On 29-10-2010, at about 3.20 p.m., in the office of the accused at Ali Asgar Road, Bengaluru, accused was trapped by the Lokayuktha Police, when she found receiving the bribe amount of Rs.3,500/- from the complainant. The Investigating Officer has conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before the court. The Investigating Officer continued the further investigation, recorded the statement of witnesses, collected documents relating to the demand of bribe, obtained the chemical analysis report relating to the seized material objects and after completion of the investigation, submitted the final report before the sanctioning authority to get the sanction to prosecute the accused. After obtaining the sanction, Investigating Officer has filed the charge sheet before this court by alleging that the 4 Spl. C.C. No.89/2011 accused has committed the offences punishable under Sec. 7, 13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 7 witnesses as PW.1 to 7 and got marked Ex.P-1 to P-35 documents and MO.1 to 16 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against her. The accused has not chosen to let in any defence evidence on her behalf. But, during the course of cross-examination of prosecution witnesses, accused got marked one document as Ex.D.1.
5 Spl. C.C. No.89/2011
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as a Co-
operative Development officer in the office of Registrar of Co-operative Societies No.1, Ali Asgar Road, Bengaluru, demanded the bribe amount of Rs.3,500/- from the complainant for renewal of registration of their society and demanded and accepted the illegal gratification of Rs.3,500/- from the complainant on 29-10-2010 at about 3-
20 PM, in her office, so as to render the official favour to the complainant and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as working as a Co-operative Development officer in the office of Registrar of Co-
operative Societies No.1, Ali Asgar Road, Bengaluru, on 29-10-2010 abused her official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.3,500/-
from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
6 Spl. C.C. No.89/2011
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant, working as a Co-operative Development officer in the office of Registrar of Co-operative Societies and the allegations against her is about she committing the offences under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority is the statutory and mandatory requirements to prosecute the accused. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let in by the prosecution before this court.
10. CW.16-Nanjundappa, who was examined as PW.1, deposed during the course of his evidence that, during the year 2010, when he was working as under Secretary to the Department of Co-operation, 7 Spl. C.C. No.89/2011 they received a letter from the ADGP, Lokayuktha seeking sanction to prosecute the accused. PW.1 further deposed that, along with the said letter, Lokayuktha Police have sent the copy of the complaint, mahazar, chemical analysis report, statement of witnesses and other prosecution papers. PW.1 further deposed that, after going through the papers, matter was forwarded to the Additional Secretary for Co- operation and thereafter matter went before the Principal Secretary. PW.1 further deposed that, then the matter was brought to the Minister and his approval was obtained and thereafter the sanction was issued as per Ex.P.1 to prosecute the accused for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
11. CW.1-Unnis Mercy, who was examined as PW.2, deposed during the course of her evidence that she was working as a Manager for Human Rights Organization and the registration of their society was not renewed for the year 2006 to 2010 and on 16-07-2010, she made an application to the Registrar of Co-operative Society. PW.2 further deposed that she had gone to the office twice or thrice and her job was not done and on 09-09-2010, she met the accused, who was looking after the concerned branch and accused asked her to remit the 8 Spl. C.C. No.89/2011 fees and accordingly, she paid the fees. PW.2 further deposed that on 21-10-2010 accused telephoned her and informed that she has to pay the amount of Rs.3,000/- to her Registrar and Rs.500/- to her and she recorded the said conversation. PW.2 further deposed that she informed this matter to their Secretary, who advised her to lodge the complaint and accordingly she appeared before the Lokayuktha Police and lodged a complaint as per Ex.P.2. PW.2 further deposed that along with the complaint, she handed over the CD containing the conversation between her and the accused and she produced the amount of Rs.3,000/- before the Lokayuktha Police and some powder was smeared on this currency notes and it was kept in her hand bag. PW.2 further deposed that she was told by CW.23 that, after payment of the tainted currency notes to the accused, she has to offer the signal by wiping her face and thereafter pre trap mahazar was drawn as per Ex.P.3. PW.2 further deposed that thereafter they went near the office of accused and she along with CW.2 went inside the office and accused was there and accused placed the file and asked her to keep the money on that file. PW.2 further deposed that she kept the tainted currency notes inside the file and accused placed the renewal certificate and thereafter she gave the signal to the Lokayuktha Police. PW.2 further deposed that thereafter CW.23 and his staff entered the 9 Spl. C.C. No.89/2011 office of accused and she pointed out the accused to CW.23, who asked the accused to produce the file and cash paid to her. PW.2 further deposed that cash was kept in her bag inside the cup board and same was found in the bag and when the accused washed her fingers in the solution, it did not turn any colour. PW.2 further deposed that voice recorder in her possession was displayed in the presence of CW.7, who identified the voice of the accused and accused also gave written explanation as per Ex.P.4 and trap mahazar was drawn as per Ex.P.5. PW.2 has identified the material objects seized in her presence.
12. CW.4-M.L. Nanjaiah, who was examined as PW.3, deposed during the course of his evidence that, when he was working as SDA in the office of Director of Public Instructions, Bengaluru, he went to the office of CW.23 along with CW.3 on 19-10-2010. PW.3 further deposed that PW.2 placed three currency notes of Rs.1,000/- each and one currency note of Rs.500/- before CW.23 and numbers of those notes were entered as per Ex.P.6. PW.3 further deposed that Lokayuktha Police have applied phenolphthalein powder on those notes and thereafter he was taken to the office of Sub-Registrar, Shivajinagar, Bengaluru by Lokayuktha Police staff and their vehicle was stopped near the office of Sub-Registrar and PW.2, along with one person went inside the office of Sub-Registrar. PW.3 further deposed that some 10 Spl. C.C. No.89/2011 police staff received phone call stating that raid was conducted and he along with Lokayuktha police staff entered the office of Sub-Registrar and accused was inside the office of Sub-Registrar. PW.3 further deposed that some writing were made in the office of accused and signatures were obtained and thereafter they came back to the office of CW.23 and trap mahazar was drawn as per Ex.P.5.
13. CW.5 Prakash Kariyappa, who was examined as PW.4, deposed during the course of his evidence that, since nine years he has been working as Program Coordinator in Manasa Centre for Development and Social Action, Bengaluru and PW.2 Unnis Mercy is looking after the accounts and administration. PW.4 further deposed that when PW.2 approached the accused, he demanded the illegal gratification and said demand was made over the phone, which was recorded by PW.2. PW.4 further deposed that thereafter instruction was given to PW.2 to lodge the complaint before the Lokayuktha Police and he came to know that the trap was laid by the Lokayuktha Police.
14. CW.2-Nirmal J. Das, who was examined as PW.5, deposed during the course of his evidence that during the year 2010, he was working as a Programme coordinator in Manasa Centre for Development and Social Action at Bengaluru and PW.2 was working as 11 Spl. C.C. No.89/2011 administrator and legal advisor. PW.5 further deposed that on 29-10- 2010, he accompanied PW.2 to the Police Station of CW.23 and two official witnesses were secured and PW.2 placed cash of Rs.2,500/- before CW.23. PW.5 further deposed that he accompanied the Lokayuktha Police staff near the office of accused and accused has handed over the renewal certificate to PW.2 and thereafter opened that file and accused asked PW.2 to keep the cash on that file and accordingly PW.2 kept cash of Rs.2,500/- in that file. PW.5 further deposed that thereafter PW.2 gave the signal and CW.23 and other witnesses entered the office and accused was not found and two minutes later accused returned to her office and when CW.23 questioned the accused about the cash, accused opened the almaraiah and took the vanity bag and produced the cash of Rs.3,500/-. PW.5 further deposed that accused immersed her right hand fingers in the solution and left hand fingers in another solution and both the finger wash was turned into pink colour and Lokayuktha Police have seized the hand wash and also cash and thereafter accused was brought to the Police Station of CW.23.
15. CW.23-Suresh Babu, who was examined as PW.6, deposed during the course of his evidence that on 29-10-2010 CW.1 appeared before him and lodged a complaint as per Ex.P.2, on the basis of 12 Spl. C.C. No.89/2011 which, he has registered the FIR as per Ex.P.9. PW.6 further deposed that by issuing the requisition letter as per Ex.P.10, he secured CW.3 and 4 as witnesses and he introduced CW.1 to them and furnished the copy of the complaint for their perusal and CW.3 and 4 have made enquiries with CW.1 regarding genuineness of the complaint. PW.6 further deposed that, as per his instruction, CW.1 produced three currency notes of Rs.1,000/- each and one currency note of Rs.500/- and numbers of those currency notes were entered as per Ex.P.6 and phenolphthalein powder was applied on those currency notes and CW.4, after verifying those notes, kept the same in the vanity bag of CW.1. PW.6 further deposed that, he instructed CW.1 to hand over the currency notes and envelop to the accused, when it was demanded. PW.6 further deposed that hand wash of CW.4 was made in the sodium carbonate solution, which turned into pink colour and same was seized. PW.6 further deposed that, CW.1 has produced a CD containing the conversation between her and the accused and recordings in the CD was displayed in the presence of CW.3 and 4 and it was also transmitted into a separate CD and recordings was transcripted as per Ex.P.12 and the CD was seized. PW.6 further deposed that the trap proceedings were video graphed and video recordings was transmitted into CD and same was seized. PW.6 further 13 Spl. C.C. No.89/2011 deposed that he instructed CW.1 to give the signal by wiping her face with hand kerchief, after accused receive the amount and also instructed CW.2 to accompany CW.1, while she approach the accused and observe all the proceedings, which transpires between them. PW.6 further deposed that he instructed CW.2 to observe as to where the accused would keep the tainted currency notes after receiving the same from CW.1. PW.6 further deposed that he has handed over the button camera to CW.2 and asked her to record the conversation between them and the accused and thereafter drawn the pre trap mahazar as per Ex.P.3. PW.6 further deposed that thereafter they went to the office of accused at Ali Asgar Road, Bengaluru and CW.1 and 2 went inside the office of the accused and at about 3.55 p.m. they came out of the office and gave the signal. PW.6 further deposed that thereafter they entered inside the office of accused and accused was not present near her table and within few minutes, accused came back and CW.1 shown the accused to him and told that she has received the tainted currency notes from her. PW.6 further deposed that they surrounded the accused and he shown his identity card to the accused and hand wash of both the hands of accused was conducted in sodium carbonate solution and it did not turn into any specific colour. PW.6 further deposed that accused told that she has 14 Spl. C.C. No.89/2011 kept the tainted currency notes in her vanity bag, which is in her almaraiah and CW.3 taken out the currency notes from the vanity bag and verified the denomination and numbers of those currency notes, which were tallied with the denomination and numbers entered in Ex.P.6. PW.6 further deposed that those currency notes were seized and the vanity bag, in which the currency notes were found, was rubbed with the help of cotton and said cotton was dipped in the sodium carbonate solution, which turned into pink colour and accordingly cotton and vanity bag were seized. PW.6 further deposed that he has secured the attendance register and other documents from the office of accused and prepared the sketch as per Ex.P.15. PW.6 further deposed that thereafter they came back to his office and continued the trap proceedings and the recordings in the voice recorder and button camera was displayed in the presence of CW.7, who identified the accused in those recordings. PW.6 further deposed that recordings were also transmitted as per Ex.P.16 and he received the written explanation given by the accused as per Ex.P.4. PW.6 further deposed that CW.7 has given the report as per Ex.P.7 and the two pages of the file in which the tainted notes were kept, was also cleaned with the help of cotton and said cotton was dipped in the sodium carbonate solution, which turned into pink colour and same 15 Spl. C.C. No.89/2011 was seized. PW.6 further deposed that he has drawn the trap mahazar as per Ex.P.5 and thereafter continued the investigation and recorded the statement of witnesses. PW.6 further deposed that he has sent the seized material objects for chemical analysis and received the report as per Ex.P.21. PW.6 further deposed that he received the sketch of the spot from the PWD Department and letter from the District Registrar of Co-operative Society regarding the phone number of the accused. PW.6 further deposed that he received the file from the Registrar of Co-operative Society and service particulars of the accused as per Ex.P.29, 30 and 31. PW.6 further deposed that he has received the work allotment order as per Ex.P.33 and issued the requisition to 17th ACMM, Bengaluru to record the statements of CW.1 and 2 under Sec.164 of Cr.P.C. PW.6 further deposed that on 26-11- 2010 he submitted the final report before the sanctioning authority to get the sanction and after receiving the sanction order as per Ex.P.1, he filed the charge sheet before this court.
16. CW.7-Somashekaraiah, who was examined as PW.7, deposed during the course of his evidence that during the year 2010 he was working as FDA in the office of District Registrar of Co- operative Society and accused was serving as a Co-operative 16 Spl. C.C. No.89/2011 Development Officer. PW.7 further deposed that, he received the phone message from the Lokayuktha Police about they trapping the accused and as per their request, he appeared before Lokayuktha Police and Lokayuktha Police have shown audio and video recordings to him. PW.7 further deposed that the audio and video recordings was shown to him was not clear and still by hearing the voice and watching the video, he found that it is the accused and her voice in the audio and video recordings and he has given a report as per Ex.P.17.
17. The accused has not let in any defence evidence on her behalf. But, accused got marked the copy of the office note prepared for getting the sanction to prosecute the accused as Ex.D.1, during the course of his cross-examination of PW.1.
18. There is no dispute that the accused is a public servant, working as a Co-operative Development Officer in the office of Registrar of Co-operative Society, Ali Asgar Road, Bengaluru. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since she is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
17 Spl. C.C. No.89/2011
19. In order to prove the sanction and validity of sanction, prosecution examined CW.16 Sri Nanjundappa as PW.1, who deposed about they receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.1 further deposed that he has perused all those papers and placed the same before Additional Secretary, who in turn submitted the papers to the Principle Secretary to the Government. PW.1 further deposed that, after getting the approval from the Minister, he has issued the sanction order as per Ex.P.1.
20. By drawing the attention of this court to Ex.D.1, which is the proceedings file relating to granting the sanction to this accused, it was argued by the learned counsel for the accused that, when the sanction order was issued second time, no approval from the Minister was obtained. Therefore, it is not a valid sanction. Ex.D.1 is the file maintained by the Department of Co-operative of Government of Karnataka, for according the sanction to prosecute this accused, after they received the requisition from the Lokayuktha Police. This document was admitted by the PW.1 during the course of his cross- examination. It is evident from Ex.D.1 that, the Co-operative Minister 18 Spl. C.C. No.89/2011 has approved the file put up before him to accord the sanction to prosecute the accused. Accordingly, sanction order was issued on 17- 01-2011. When the said sanction order sent to the Lokayuktha Police, they found some typographical and clerical error in the sanction order. Accordingly, they have returned the sanction order to the Co-operative Department to rectify those mistakes and issue the fresh sanction order. Thereafter, errors were rectified and fresh sanction order was issued as per Ex.P.1. It is true that, when the fresh sanction order was issued, matter was again not placed before the Minister to get his approval. But, on that score, one cannot say that Ex.P.1 is not a valid sanction, because after going through the file and after considering the note put up by the Deputy Secretary and Principal Secretary, Co-operative Minister has approved the file for according the sanction. Accordingly, sanction order was issued. Since there was some clerical and typographical mistake in the sanction order, file was returned to rectify the same. Accordingly after rectification fresh sanction order was issued. So, it is a case of rectifying earlier sanction order and not passing any fresh sanction to get the approval of the minister again. Therefore one cannot say that the approval of the Minster is again necessary to issue the fresh sanction order.
19 Spl. C.C. No.89/2011
21. If I go through Ex.P.1 sanction order and Ex.D.1 proceedings, it goes to show that there is due application of mind by the sanctioning authority and accordingly the sanction was accorded to prosecute the accused. There were prima facie materials to proceed against the accused. Accordingly, upon filing the charge sheet, this court has taken the cognizance. Having found prima facie materials, this court framed the charge against the accused. Under such circumstances, one cannot say that the sanction accorded to prosecute the accused is invalid. There are sufficient materials to accord the sanction and same has been accorded with due application of mind by the sanctioning authority. Therefore, I hold that there is a valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 & 3:
22. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as a Co-operative Development Officer in the office of Registrar of Co-operative Society, demanded the bribe amount of Rs.3,500/- from the complainant to 20 Spl. C.C. No.89/2011 renew the registration of their society and accepted the bribe amount of Rs.3,500/- on 29-10-2010, in her office and he was trapped by the Lokayuktha Police.
23. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, accused can be held as guilty of committing the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
24. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal 21 Spl. C.C. No.89/2011 gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
25. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s 22 Spl. C.C. No.89/2011 State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
26. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988 is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
27. The Hon'ble High Court of Karnataka has reiterated the same view in a recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, 23 Spl. C.C. No.89/2011 Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
28. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, prosecution has to prove before this court that official work is pending before the accused, relating to the complainant, so as to demand the illegal gratification from him.
29. As per the complaint allegations, demand of bribe made by the accused is for issuance of the renewal of registration certificate of the society by name Manasa Centre for Development and Social Action. It is evident from Ex.P.2 complaint that, on behalf of the said society, application was filed for renewal of its registration and it was alleged that the Registrar and case worker of that society have demanded the bribe for issuance of the registration certificate. According to the accused, process for issuing the registration 24 Spl. C.C. No.89/2011 certificate was completed and registration certificate itself was ready much before lodging the complaint and alleged trap. Therefore, no official work relating to the complainant and issuance of the registration certificate was pending before the accused as on the date of lodging the complaint and on the date of trap. Therefore, it was contended by the accused that, question of he demanding and accepting the bribe amount would not arise.
30. In this regard, accused has drawn the attention of this court to Ex.P.13 file, which was secured by the Lokayuktha Police from the office of accused after the trap. Ex.P.13 file is relating to the application filed by the complainant's society for renewal of their registration certificate and proceedings conducted in this regard. It is evident from Ex.P.13 file that the application for issuance of the renewal of registration certificate was filed on 16-07-2010. Since there were some objections regarding not filing the audits and accounts for three years, on 02-08-2010 District Registrar has issued a notice to the complainant's society to appear before them on 13-08-2010 for showing the cause for delay in submitting the application for renewal. Subsequently, said objections were complied. It is evident from the challen that a sum of Rs.13,400/- was deposited by the complainant's 25 Spl. C.C. No.89/2011 society on 09-09-2010. So, only after 09-09-2010, after depositing the requisite fee, accused can proceed further for further issuance of the renewal of the registration certificate of the complainant's society. The copy of the registration certificate, which is in the file of Ex.P.13, goes to show that same was ready on 20-09-2010. In-fact, page-5 of Ex.P.13 file goes to show that the Registrar of society has passed an order on 20-09-2010 for renewing the registration certificate of complainant's society and on the very same day, registration certificate was made ready.
31. The complaint before Lokayuktha Police was lodged on 29- 09-2010 and on the very same day, trap was laid. So, about 9-days before lodging the complaint, registration certificate was ready, on the basis of the order passed by the Registrar of societies. It is evident from the endorsement made upon the registration certificate that complainant has received the same on 29-10-2010, just before the trap. So the complainant has received the certificate just before the trap and it was ready 9-days before lodging the complaint and the trap. Only work, which was remained with the accused is handing over the registration certificate, which was made and completed on 29-10- 2010 just before the trap.
26 Spl. C.C. No.89/2011
32. Now, it is relevant to refer some of the statements given by the Investigating Officer, who was examined as PW.6, during the course of his cross-examination. In page 11 of his cross-examination, PW.6 specifically admitted that, as per the documents collected by him, work relating to the renewal of the registration of the complainant's society was completed on 20-09-2010. So, above referred documents, coupled with the statement given by the Investigating Officer before this court, goes to show that 9-days before lodging the complaint and trap, renewal certificate of the complainant's society was ready. In page-12 of his cross-examination, Investigating Officer/PW.6 specifically admitted that on 29-09-2010, when the complaint was lodged and trap was laid, no official work relating to the complainant was pending before the accused. So, the Investigating Officer himself admitted that on the date of lodging the complaint and on the date of trap, no official work relating to the complainant's society was pending before the accused.
33. Now, it is relevant to refer the above referred decision of Hon'ble High Court of Karnataka in Malini V/s State of Karnataka reported in 2012(1) KCCR 414. In that particular case, certificate sought by the complainant was ready much before lodging the complaint and trap. Therefore, Hon'ble High Court held that, when no 27 Spl. C.C. No.89/2011 work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise. In this case also, certificate as sought by the complainant was ready 9-days before lodging the complaint and trap. It is not the case of the complainant that, in spite of registration certificate being ready, the accused has not handed over the same to them by demanding the bribe amount. It is also the case of the complainant that, in between 20-09-2010 to 29-09-2010, they approached the accused for handing over the registration certificate. It is also not the case of complainant that there was huge delay on the part of the accused in issuing the registration certificate, by demanding the bribe amount. As I said earlier, though, application for issuance of the renewal of registration certificate was filed on 16-07-2010, after scrutiny, some objections were raised and notice were issued to the complainant's society on 02- 08-2010 to comply the same. The complainant has complied the same and deposited the fee only on 09-09-2010, as evident from the challen in Ex.P.13 file. After payment of fee on 09-09-2010, matter was placed before the Registrar of societies and he has passed the order for renewal of registration of the certificate on 20-09-2010 and on the very same day, registration certificate was made ready. From all these, one cannot say that the accused, by expecting the bribe 28 Spl. C.C. No.89/2011 amount, has delayed the proceedings. Except handing over the registration certificate to the complainant, accused has no official work pending before him on the date of lodging the complaint and trap. The registration certificate was ready on 20-09-2010. If the accused was expecting the bribe amount, certificate would not have been kept ready on 20-09-2010, immediately after the order passed by the Registrar of Societies. Under such circumstances, one cannot accept the contention of the prosecution that the official work relating to the complainant was pending before the accused on the date of lodging the complaint and for doing the same, accused has demanded the bribe amount.
34. The next important question, which requires to be considered by this court is about the demand of bribe amount, which is also one of the important requirements to constitute the offence punishable under Sec.7 of the Prevention of Corruption Act. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal 29 Spl. C.C. No.89/2011 gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
35. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by the accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
36. The Hon'ble Supreme Court has expressed the same view in its Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma), wherein it was held that mere recovery of tainted notes is not enough, as there is necessity of showing the demand for illegal gratification. Same view was expressed by the Hon'ble Supreme Court in the subsequent decision reported in 2015 STPL (Web) 354 SC (Gulbar Hussain and others V/s State of Assam and another). So the ratio laid down in all those decisions are very clear on this point that the initial burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused.
30 Spl. C.C. No.89/2011
37. As per the prosecution case, in the case on hand, demand of illegal gratification by the accused is on two stages. Firstly, there was demand before lodging the complaint and secondly, there was demand of illegal gratification made by the accused subsequent to the lodging of complaint, when the complainant, along with the trap team approached the accused to trap her. In order to prove the demand before lodging the complaint, prosecution relied upon the evidence of the complainant and some of the office bearers of the complainant's society and also the recordings made by the complainant in his mobile phone about conversation between her and the accused regarding demand of bribe amount.
38. Let me consider these evidence one by one. Of-course, in the complaint, there are allegations regarding demand of bribe amount. If I draw my attention to the Ex.P.2 complaint, allegation regarding demand of bribe amount was made against both the Registrar of the Societies and also the case worker. In the complaint, this accused was called as a case worker, though she is not a case worker. The designation of the accused is Co-operative Development Officer. Since the accused is dealing with the file relating to the renewal of the registration of the societies, complainant may have 31 Spl. C.C. No.89/2011 called her as case worker. As I said earlier, in the complaint, allegation was made even against the registrar regarding the demand of bribe amount. It was alleged that the accused has demanded the bribe amount of Rs.3,000/- to be paid to the Registrar and additional amount of Rs.500/- to her. If I draw my attention to the FIR, Lokayuktha Police have shown only this accused as the accused in the FIR and they have not made the Registrar as the accused in the FIR, though FIR was registered on the basis of the complaint and in the complaint, it was alleged that the demand of bribe amount was made by both the Registrar and this accused.
39. The complainant, who was examined before this court as PW.2, during the course of her evidence before this court deposed that on 16-07-2010, she made the application to the Registrar of Society for renewal of their society and she had gone to the office twice or thrice and her job was not done. PW.2 further said that on 09-09-2010 she went and met the accused and accused asked her to remit the fees and give the receipt. PW.2 further said that when she asked the accused as to when her work would be ready, accused said that she will dial to her and colleted her phone number. PW.2 further said that on 21-10-2010, when she telephoned the accused, accused demanded the bribe amount of Rs.3,000/- to be payable to her Registrar and 32 Spl. C.C. No.89/2011 Rs.500/- to her and she recorded that conversation and thereafter lodged the complaint before the Lokayuktha Police as per Ex.P.10. So, according to the complainant, alleged demand of bribe amount was made on 21-10-2010, over the telephone, when complainant called the accused.
40. The prosecution examined the Programme coordinator in Manasa Centre for Development and Social Action, Bengaluru as PW.4 and he said that when complainant approached the accused for getting the registration renewal certificate, accused demanded the illegal gratification. So far as the demand of bribe amount, evidence of CW.5/PW.4 is only hearsay evidence. Therefore, much importance cannot be attached to the oral evidence of PW.4. CW.2/PW.5 has accompanied the complainant while lodging the complaint and she has not deposed anything regarding the accused demanding the bribe amount before lodging the complaint. So, only evidence available for the prosecution to prove the demand of bribe amount made by the accused before lodging the complaint is the oral testimony of the complainant.
41. Before proceeding to consider the evidence of complainant/PW.2, it is necessary to consider evidence produced by 33 Spl. C.C. No.89/2011 the prosecution, in the form of CD, to prove the alleged demand of bribe amount made before lodging the complaint. According to the prosecution, complainant, in her mobile phone, has recorded the conversation between her and the accused, regarding demand of bribe amount and transmitted those recordings into a CD and produced the same before the Lokayuktha Police, while lodging the complaint. There is also reference about the same in the pre trap mahazar and said CD was produced before this court as per M.O.1. The Investigating Officer has recorded the conversation found in the said CD in the pre trap mahazar, which is marked as per Ex.P.4. No separate transcription of those recording was made and there is also no evidence to show that said recording was displayed in the presence of CW.3 and 4. There is also no evidence as to when the said recording was made and through which mobile phone the recording was made. Only evidence produced before this court is the CD in which the recording made in the mobile phone was transmitted.
42. The evidence produced by the prosecution before this court in the form of CD is the secondary evidence of the recordings made in the mobile phone. The primary evidence is the mobile phone, in which the recording was actually made. Said mobile phone was not seized 34 Spl. C.C. No.89/2011 and not produced before this court. So, it is a case of prosecution producing only the secondary evidence of the recordings in the mobile phone and not the primary evidence. The secondary evidence produced before this court in the form of CD is not accompanied by the certificate, which is required under Sec.65-B of the Indian Evidence Act. When the prosecution has not produced the primary evidence of electronic evidence and produced only the secondary evidence, which is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act, such evidence cannot be considered and accepted by this court. This view of mine is based upon the three Judges Bench Decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of the electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65-B of the Indian Evidence Act, said secondary evidence is not admissible in evidence.
43. So, now it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced 35 Spl. C.C. No.89/2011 before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under Sec. 65-B of the Indian Evidence Act in respect of genuineness of the said secondary evidence. In the case on hand, though the prosecution has produced only the secondary evidence in respect of the recordings in the mobile phone, it is not supported by the certificate under Sec. 65- B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of recordings in the voice recorder in order to prove the demand of bribe before lodging the complaint. Hence, CD produced as per M.O.1 deserves no consideration by this court.
44. The Investigating Officer has not made any attempt to obtain the specimen voice of the accused and sent the same to the forensic examination, by comparing his voice in the recordings made in the mobile phone and found in the MO.1 CD. Though the prosecution had the opportunity to prove the voice of the accused in the CD by getting the opinion of the expert, after comparing the same with the specimen voice of the accused, investigating agency has not made that effort and not utilized that option available to them. No explanation is forth coming from the Investigating Officer, either for 36 Spl. C.C. No.89/2011 not obtaining the expert opinion regarding the voice of the accused or for getting the certificate under Sec.65-B of the Indian Evidence Act, regarding secondary evidence produced before this court. Therefore, all these evidence produced by the prosecution cannot be accepted by this court.
45. When this court cannot rely upon the recordings in the CD, absolutely there is no corroboration for the evidence of complainant regarding demand of illegal gratification made by the accused before lodging the complaint. In view of the catena of decisions, which I would refer during the course of later discussion, evidence of the complainant requires corroboration. Hence, I am unable to accept the sole testimony of the complainant regarding the demand of bribe amount before lodging the complaint.
46. Now, let me consider the evidence let-in by the prosecution regarding demand of bribe amount after lodging the complaint and just before the trap. The prosecution relied upon the evidence of complainant, who was examined as PW.2, evidence of CW.2, who is the colleague of complainant, who was examined as PW.5 and also the recordings in the button camera and voice recorder, to prove the demand of bribe made by the accused at the time of trap. It is evident 37 Spl. C.C. No.89/2011 from the pre trap mahazar that a button camera and voice recorder was handed over to the complainant and CW.1 and they were asked to record the conversation between CW.1 and the accused in the said button camera and digital voice recorder. It is evident from the trap mahazar that the recordings in the button camera and digital voice recorder was displayed after the trap. As per the recordings found in the button camera, some other scenes were found and there is no recording regarding accused demanding the bribe amount. Regarding recordings in the digital voice recorder as referred in the trap mahazar, again there is no conversation about the demand made by the accused. Therefore, the recordings in the button camera and digital voice recorder do not help the prosecution in any way to prove that at the time of trap, accused has demanded the bribe amount. Moreover, this court cannot accept the recordings in the button camera and the digital voice recorder for the reason that the primary evidence has not been produced before the court and secondary evidence is not accompanied by the certificate as provided under Section 65-B of the Indian Evidence Act.
47. Regarding demand of bribe amount at the time of trap, the complainant/PW.2 said before this court that she and CW.2 entered the office of accused and accused placed the file and asked her to keep 38 Spl. C.C. No.89/2011 the money in that file and accordingly she kept the tainted currency notes inside that file. CW.2/PW.5 deposed during the course of her evidence that she and complainant entered the office of the accused and accused handed over the renewal certificate to the complainant and thereafter accused opened the file and asked the complainant to keep the cash in that file and accordingly complainant kept the cash in that file. These are the statements given by PW.2 and PW.5 regarding the demand of bribe amount by the accused at the time of trap. So according to PW.2 and PW.5, accused asked the complainant to keep the money in the file and accordingly it was kept.
48. The major contradictions in between the evidence of PW.2 and PW.5 is that as per the evidence of PW.2 Rs.3,500/- was used as tainted currency notes and same was kept by her in the file shown by the accused. Whereas, as per the evidence of PW.5, complainant kept Rs.2,500/- in that file. CW.2/PW.5 repeatedly said that an amount of Rs.2,500/- was given to PW.2 at the time of pre trap proceedings and accordingly same was kept in the file as per the direction of the accused. Per contra, pre trap mahazar, evidence of complainant and Investigating Officer shows that an amount of Rs.3,500/- was used as tainted currency notes to trap the accused. This material 39 Spl. C.C. No.89/2011 contradictions in between the evidence of PW.2 and PW.5 creates some doubt in the mind of this court.
49. It is pertinent to note here that for conducting the trap, no independent witnesses have been used by the Lokayuktha Police, as shadow witness, though they were available and secured at the time of pre trap proceedings. Immediately after registration of FIR, CW.3 and 4, who were the officials in the Education Department, were secured as the witnesses for conducting the pre-trap proceedings. None of them have been designated as the shadow witness. Rather, it is CW.2, who was designated as the shadow witness. CW.2/PW.5, who accompanied the complainant as a shadow witness, is none other than the colleague of the complainant, working in their society and she has also accompanied the complainant, while lodging the complaint. So, CW.2 cannot be said as an independent witness, so as to designate her as a shadow witness. Since CW.2 is the colleague of the complainant and both were working in the same society, rather than designating CW.2 as a shadow witness, Investigating Officer would have made CW.3 or CW.4 as a shadow witness.
50. The purpose behind securing the government officials as witness is to conduct the pre trap proceedings and to take them for 40 Spl. C.C. No.89/2011 the purpose of trap, as an independent witnesses. Though, two witnesses were secured for the pre trap proceedings and their assistance was taken for conducting the pre trap proceedings, none of them have been made as a shadow witness. Rather, colleague of the complainant, working with her in their society was made as the shadow witness.
51. In this regard, it is necessary to refer the decision of Hon'ble High Court of Karnataka reported in 2006(3) KCCR 145 (State of Karnataka V/s K.T.Hanumanthaiah). It was held in the above decision that 'the impartial shadow witness to the trap proceedings is taken with an object of proving the case of demand and acceptance of bribe by independent corroboration. It was further held in the above decision that, when there is no independent corroboration to prove the theory of demand and acceptance of the bribe, conviction cannot be based on the basis of the interested testimony of the complainant. It is not that no independent witnesses were available at the time of trap. Though, independent official witnesses were secured and pre trap proceedings were conducted in their presence, they were not used as a shadow witness at the time of trap.
41 Spl. C.C. No.89/2011
52. The prosecution tried to offer an explanation that, if any one of the official witness were accompanied the complainant as the shadow witness at the time of trap, accused would have got doubt and there by their attempt to trap the accused would have failed. Therefore, according to the prosecution, official witnesses have not been designated as a shadow witness. This explanation of the prosecution cannot be accepted by this court. The office of accused is a public place where any person can enter. The investigating agency would have made any one of the official witness as a shadow witness at-least to observe as to what transpires between the complainant and the accused. But, no such attempt was made by the investigating agency. According to me, in spite of availability of the independent official witnesses, investigating agency not making any one of them as a shadow witness, would creates doubt in the mind of this court.
53. Regarding the demand of bribe by this accused at the time of trap, there is only the evidence complainant and her colleague, who were examined as PW.2 and 5 respectively. There is no support of evidence of independent witness to corroborate their oral testimony. As per the decision of Hon'ble Supreme Court and Hon'ble High Court of Karnataka, sole testimony of the complainant cannot be accepted in 42 Spl. C.C. No.89/2011 proof of demand and acceptance of the bribe amount, when it is not corroborated with any other evidence, because the complainant is in the nature of accomplice in the cases like this and he is also a interested witness. In this regard, it is necessary to refer a decision of Hon'ble Supreme Court reported in (2011) 2 Supreme Court Cases (Cri) 1010 (2011) 6 Supreme Court Cases 450) (State of Kerala and another V/s C.P.Rao). While discussing the question of standard of proof and corroboration in trap cases registered for taking bribe against a public servant for the offences punishable under Sec.7, 13(2) and 13(1)(d) of the Prevention of Corruption Act 1988, it was held by the Hon'ble Supreme Court that, "when there is no corroboration for the testimony of the complainant regarding demand of bribe by the accused, it has to be accepted that complainant version is not corroborated and therefore, evidence of the complainant cannot be relied upon".
54. Another decision, which can be relied upon on this point is the decision of Hon'ble Supreme Court reported in 1981 Supreme Court Cases (Crl) 586 (Gulam Mahmood A. Malek V/s State of Gujarat) wherein it was held that "in a trap cases, complainant himself is in the nature of accomplice and his story is prima 43 Spl. C.C. No.89/2011 facie suspect, for which, corroboration in materials particulars is necessary".
55. One more decision which can be relied on this point is the recent decision of Hon'ble High Court of Karnataka reported in 2016(1) KCCR 815 (R. Srinivasan and Another V/s State by Police Inspector, Lokayuktha, Bengaluru). It was held in the above decision that "in a trap cases, complainant will normally be an interested person, in the sense he would be interested in getting the accused trapped since the accused is stated to have not acted legally, according to him. Hence the evidence of the complainant needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance.
56. One more decision, which can be referred on this point is the decision of Hon'ble Supreme Court reported in 1974 Supreme Court Cases Crl. 73 (Darshan Lal V/s The Delhi Administration). By relying upon its earlier Judgment in Ram Prakash Arora V/s The State of Punjab reported in 1972 SCC Crl. 8696, it was held in the said decisions that Courts should have required independent and trustworthy corroboration for the evidence of the complainant, as he is 44 Spl. C.C. No.89/2011 the interested and partisan witness, as they are concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case, Court may look into the independent corroboration before convicting the accused. Same view was expressed by the Hon'ble High Court of Karnataka in a decision reported in 2015 (1) KCCR 898 (N.A. Suryanarayana V/s State of Inspector of Police).
57. In this particular case, regarding demand of bribe amount on both the stages, there is only the evidence of complainant and her colleague and absolutely there is no corroboration for their evidence, as the independent official witness was not designated as the shadow witness to evidence the demand and acceptance of the bribe amount by the accused. Under such circumstances, I hold that the evidence of the complainant is unreliable regarding demand of bribe amount, because it remained uncorroborated and surrounded with some suspicious circumstances. Therefore, I am unable to accept the same. Accordingly, I hold that the prosecution has failed to prove the demand of bribe amount made by the accused.
58. The next question, which requires to be considered by this court, is regarding the acceptance of the illegal gratification by the 45 Spl. C.C. No.89/2011 accused. The prosecution relies upon the pre trap proceedings conducted by them before laying the trap, evidence of complainant/PW.2 and CW.2/PW.5 and also the evidence of CW.4/PW.3 and Investigating Officer/PW.6 to prove that there was acceptance of the illegal gratification by the accused. So far as the pre trap proceedings is concerned, even though there is no serious dispute as such by the accused, one can find a material contradictions in between the pre trap mahazar and evidence of complainant/PW.2, CW.4/PW.3 and the Investigating Officer.
59. Normally, in the trap cases like this, when the trap amount is produced before the Investigating Officer at the time of pre-trap proceedings, phenolphthalein powder would be applied on those notes and one of the official witness would be asked to keep the currency notes in the pocket or the bag of the complainant and thereafter hand wash of that witness would be made in sodium carbonate solution to demonstrate to the witness as to how the combination of sodium carbonate and phenolphthalein powder experiment would work out. The prosecution claims that, same proceedings were followed in this case and complainant produced the amount of Rs.3,500/- and after applying the phenolphthalein powder on those currency notes, 46 Spl. C.C. No.89/2011 CW.4/PW.3 was asked to keep the said currency notes in the vanity bag of the complainant and accordingly, he kept the same. As per the evidence of complainant and Investigating officer, hand wash of CW.4/PW.3, who kept the tainted currency notes in the vanity bag of CW.1, was made in the sodium carbonate solution and same turned into pink colour. Even CW.4/PW.3 said that his hand wash was made and same turned into pink color.
60. If I draw my attention to the page 3 of Ex.P.3 pre trap mahazar, at the time of conducting the pre-trap proceedings, hand wash of complainant Unnis Mercy was made in the sodium carbonate solution, instead making the hand wash of CW.4/PW.3-M.L.Nanjaiah, who has kept the tainted currency notes in the vanity bag of CW.1. The pre trap mahazar also shows that hand wash of complainant turned into pink colour. It is not made known to this court as to why hand wash of CW.1 was made and as how it can turn into pink colour, when she has not touched the currency notes, for which the phenolphthalein powder was applied. The hand wash of CW.4, who kept the tainted currency notes in the vanity bag of CW.1 at the time of pre trap proceedings, was not made, as per the pre trap mahazar. 47 Spl. C.C. No.89/2011 According to me, it is a material contradiction and irregularity in the prosecution case.
61. So far as the acceptance of the money, the complainant/PW.2 said during the course of her evidence that when she met the accused in her office, accused placed the file and asked her to keep the money in that file and accordingly she kept the tainted currency notes inside that file and thereafter accused placed the renewal certificate and after that, she gave the signal to the Lokayuktha Police, who arrived to the spot. PW.2 further said that when the Lokayuktha Police enquired the accused about tainted currency notes, she said that she had kept the same inside the cupboard and Lokayuktha Police have verified the bag and found the currency notes and same was seized.
62. One of the witness, who was in the trap team, deposed during the course of his evidence that, after receiving the signal, he along with Lokayuktha Police entered the office of Registrar and accused was found in the office and some writings were made in the office of accused and thereafter, he along with Lokayuktha Police staff took out the currency notes from a cover, which was in the table drawer of the accused. So, independent witness has got some different 48 Spl. C.C. No.89/2011 version to say regarding finding of the tainted currency notes, as PW.3 said that it was in the table drawer of the accused.
63. CW.2/PW.5, who accompanied the CW.1 while handing over the tainted currency notes, said that accused has opened the file and asked CW.1 to keep the cash in that file and accordingly PW.2 kept the cash of Rs.2,500/- in the file and thereafter the police have entered the office of accused and when CW.23 questioned the accused about the cash, accused opened the almariah and took the vanity bag and after opening the vanity bag has produced cash of Rs.3,500/-. PW.5 has got another version to say, as she said that cash of Rs.2,500/- was kept in the file and cash of Rs.3,500/- was found in the vanity bag of the accused, which was taken out from the almariah.
64. The Investigating Officer, who was examined as PW.6, in his examination in chief said that after receiving signal from the accused they entered the office of accused and CW.1 told that as per the instruction of the accused, she kept the cover containing the tainted currency notes inside the file. PW.6 further said that when he enquired the accused about the tainted currency notes, accused said that she has kept the same in her vanity bag, which was in almariah and as per the instruction of CW.3, currency notes were taken out from the vanity 49 Spl. C.C. No.89/2011 bag of the accused and it was in the almariah and an amount of Rs.3,500/- was found.
65. CW.1 and CW.2, who were present at the time of handing over the currency notes, said that as per the instruction of accused, currency notes were kept in the file. The recovery of those currency notes were made from the vanity bag, which was kept in the almariah. There is no evidence as to how the currency notes kept on the file has gone into the vanity bag of the accused. None of the prosecution witnesses said that accused has taken that currency notes kept on the file and kept the same in her vanity bag and thereafter she kept the vanity bag in her almariah. If the accused has touched those currency notes by taking out the same from the file, so as to keep the same in her vanity bag, her hand wash would have turned into pink colour. In this particular case, as per trap mahazar and evidence of prosecution witnesses, hand wash of accused did not turn into pink colour. So, there is no positive phenolphthalein test report to show that the accused has actually accepted the tainted currency notes, by receiving the same from the accused.
66. Again there is contradiction in between the evidence of PW.5 and the prosecution case regarding positive phenpthelene test. PW.5, 50 Spl. C.C. No.89/2011 who was designated as the shadow witness and who accompanied the complainant at the time of paying the tainted currency notes, deposed during the course of her examination in chief that, when hand wash of the accused was made in the sodium carbonate solution, both the hand wash turned into pink colour. This statement of PW.5 is quite contradictory to the trap mahazar and statement of other witnesses, because as per the trap mahazar and statement of complainant and the Investigating Officer, hand wash of the accused did not turn into pink colour. So, prosecution has no benefit of positive phenolphthalein test report to prove that there was acceptance of the tainted currency notes by the accused. The tainted currency notes were found in the vanity bag, which is on the almaraiah of the accused, whereas complainant and CW.2 said that they have kept the same in the file. None of the prosecution witnesses said that accused has taken out those currency notes from the file and kept in her vanity bag. It is not made known to this court as to how the tainted currency notes were gone to the vanity bag of accused, which was kept on the file. It is nobody's case that accused has kept the same in her vanity bag, after taking it from the file. The evidence of complainant and shadow witness do not inspire the confidence to place reliance on it, because of the inconstancy and contradictions. Under these circumstances, I 51 Spl. C.C. No.89/2011 have to say that there is no cogent, convincing and concrete evidence before this court to show that there is acceptance of the tainted currency notes by the accused.
67. Even if this court accept the theory of the prosecution that there is acceptance of tainted currency notes by the accused, still this accused can not be convicted for the alleged offence, as the prosecution failed to prove the demand of bribe by this accused. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena W/o Balwant Hemke V/s State of Maharastra). It was held by the Hon'ble Supreme Court in the above decision that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the accused, in the absence of evidence to prove that same was demanded by the accused and it was voluntarily accepted.
68. One more decision, which can be considered on this point the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka). It was held in the said decision that mere possession and recovery of the tainted currency notes from the accused, without the proof of 52 Spl. C.C. No.89/2011 demand, would not attract offences under Sec. 13(1)(d) of the Prevention of Corruption Act 1988.
69. It is also necessary to refer the decision of Hon'ble Supreme Court reported in 2015 SCC Online SC 814 (2015 AIR SCW 526) (P. Sathyanarayana Murthy V/s District Inspector of Police and another). It was held in the above decision that, mere possession and recovery of currency notes from accused without proof of demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
70. Same view expressed by the Hon'ble High Court of Karnataka in a decision reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka), wherein it was held that, mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused, in the absence of any demand and acceptance of the amount as an illegal gratification. Mere acceptance of money by the accused will not 53 Spl. C.C. No.89/2011 be sufficient to fasten the guilt. It was further held in the above decision that, it is not the passing of money alone which establishes a Corruption charge, because the grave-men of the offence lies in the fact that much was paid for a corrupt purpose and it is that aspect which is paramount.
71. To sum-up my discussion, prosecution has failed to prove that the official act is pending before the accused in respect of the complainant, as on the date of lodging the complainant and trap, so as to demand and accept the illegal gratification. The prosecution has also failed to prove the demand of bribe by the accused, which is an essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. The prosecution has also failed to prove the physical and actual acceptance of the tainted currency notes by the accused and there is no positive phenpthelene test of the hand wash of the accused. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification, demanded by the accused. The prosecution has failed to discharge the initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of 54 Spl. C.C. No.89/2011 Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative.
POINT No.4:
72. In view of my findings on the above points, accused deserves to be acquitted. Accordingly, I proceed to pass the following order:
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against her for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and her surety stands cancelled.
MO.1 to 15 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.55 Spl. C.C. No.89/2011
MO.16 is ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 1st day of March 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Nanjundappa PW.2: Unnis Mercy PW.3: M.L.Nanjaiah PW.4: Prakash Kariyappa PW.5: Nirmal J. Das PW.6: Suresh Babu PW.7: Somashekaraiah LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Complaint Ex.P.2(a): Signature of PW.2 Ex.P.2(b): Signature of PW.6 Ex.P.3: Pre trap proceedings 56 Spl. C.C. No.89/2011 Ex.P.3(a): Signature of PW.2 Ex.P.3(b to f): Signature of PW.3 Ex.P.3(g): Signature of PW.6 Ex.P.4: Explanation of the accused Ex.P.4(a): Signature of accused Ex.P.4(b): Signature of PW.6 Ex.P.5: Trap mahazar Ex.P.5(a): Signature of PW.2 Ex.P.5(b to l): Signature of PW.3 Ex.P.5 (m): Signature of PW.6 Ex.P.6: Currency notes sheet Ex.P.6(a): Signature of PW.3 Ex.P.6(b): Signature of PW.6 Ex.P.7: Acknowledgement Ex.P.7(a): Signature of PW.3 Ex.P.8: Seizure mahazar Ex.P.8(a): Signature of PW.3 Ex.P.8(b): Signature of PW.6 Ex.P.9: FIR Ex.P.9(a): Signature of PW.6 Ex.P.10: Requisition Ex.P.10(a): Signature of PW.6 Ex.P.11: Letter dt:29-10-2010 Ex.P.12: CD recordings transcription Ex.P.12(a): Signature of PW.6 Ex.P.13: File relating to complaint page 63 to 125 of charge sheet Ex.P.14: Copy of the attendance register 57 Spl. C.C. No.89/2011 Ex.P.15: Spot sketch Ex.P.15(a): Signature of PW.6 Ex.16: voice recorder and button camera transcription Ex.P.16(a): Signature of PW.6 Ex.P.17: Explanation of CW.7 Ex.P.18: Requisition dt:30-10-2010 Ex.P.19: Call details Ex.P.20: Requisition letter dated:30-10-2010 Ex.P.21: Chemical analysis report Ex.P.22: Acknowledgement of seal Ex.P.23: Letter to PWD Ex.P.24: PWD sketch cover Ex.P.25: PWD sketch Ex.P.26: Letter dt:04-11-2010 Ex.P.27: Letter dt: 09-11-2010 Ex.P.28: Letter of CW.11 Ex.P.29: File given by CW.11 page 131 to 140 Ex.P.30: Covering letter dt:09-11-2010 Ex.P.31: Service particulars Ex.P.32: Covering letter Ex.P.33: Work allotment particulars Ex.P.34: Requisition to 17th ACMM, Bengaluru. Ex.P.35: Copy of movement register page 61 & 62 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: CD-Mobile conversation MO.2: Cover 58 Spl. C.C. No.89/2011 MO.3: Sample solution bottle MO.4: Hand washes of witness (PW.2) MO.5: Sample solution bottle MO.6: Right hand washes solution MO.7: Another right hand washes solution MO.8: Cotton cloth washing solution MO.9: Cover MO.10: Cotton cloth MO.11: Cover MO.12: One vanity bag MO.13: Sample solution bottle MO.14: Cover MO.15: Cotton cloth piece MO.16: Currency notes LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Copy of the Office note.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 59 Spl. C.C. No.89/2011 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against her for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The bail bond executed by the accused and her surety stands cancelled. MO.1 to 15 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.16 is ordered to be confiscated to the State Government after expiry of appeal period. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)