Bangalore District Court
Lokayukta Police Inspector vs N. Gajendra on 15 June, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 15th day of June 2018
Spl.C.C. No.124/2010
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: N. Gajendra,
S/o P. Narayanaswamy,
Aged about 54 years,
Assessor, A.R.O Office,
(Govindarajanagara) Range office,
Dr. T.C.M.Rayan Road, Bengaluru.
R/o No.105, 5th cross Road, Kadirappa
Road, Cox Town, Bengaluru-78.
(By Sri. B.J. Prakash - Adv.)
Date of commission of
offence 26-06-2009
Date of report of occurrence 30-07-2009
Date of arrest of accused: 31-07-2009
[
Date of release of accused 05.08.2009
on bail:
Date of commencement 18-07-2013
of evidence
Date of closing of 06-03-2018
evidence
Name of the complainant Sri. Sampath Raj
Offences complained of
U/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge ACQUITTED
Date of Judgment: 15-06-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru has filed this charge sheet against accused for the offences punishable under Sections 7, 13(1)(d) r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. The brief facts of the prosecution case is as under:-
The accused - N.Gajendra, Assessor, in the Office of A.R.O., Govindaraja Nagar, Bengaluru is a public servant. The complainant P.C.Sampathraj had submitted application for amalgamation of khatha in respect of Property No.33 and 34 situated in Pete Channappa Estate, Kamaksipalya, Magadi Road, Bengaluru standing in the name of his sons Rajesh and Praveen on 4.3.2008 and no action has been taken by revenue authorities and on 24.6.2009 he submitted an application under R.T.I. Act to the A.R.O. seeking details and after two days on 26.6.2009 again he visited the Office of A.R.O. of Goodshed Road and met Prakash and he told the complainant that an endorsement is given on 20.3.2008 and the A.R.O. asked the complainant to meet the accused -
Gajendra, who is the Assessorand the complainant made efforts to meet him, but he was not available in the office and on 25.7.2009 complainant contacted him by phone and also met him and the accused took the complainant to the property and made inspection and thereafter asked the complainant to pay Rs.50,000/- stating that amount is to be distributed to the senior officers for doing the work of the complainant. When the complainant requested accused asked him to pay Rs. 40,000/-. Again on 29.7.2009 complainant contacted the accused by phone and the accused informed that as the amount is not paid, his work is not done. Again on 30.07.2009 complainant contacted accused by phone and accused asked the complainant to pay Rs.35,000/- on B.B.M.P. office on the same day and this conversation was recorded in Mobile and then transmitted to CD. Regarding this demand of bribe, complainant gave written complaint before the Lokayukta Police on 30.07.2009. On receiving the complaint, Lokayukta Police Inspector registered the case in Crime No.54/2009 and submitted F.I.R. to the Court. The Lokayukta Police Inspector secured panchas and made all arrangements to trap the accused and on the same day between 13.38 p.m. to 14.20 p.m, when on the instructions of the accused, C.W.4 - Srinivas received the tainted notes of Rs.35,000/- in the presence of the accused from the complainant, the accused was caught. Tainted notes were seized. Accused was arrested and thereafter released on bail. The Investigating Officer continued the investigation and after completion of investigation and after securing prosecution sanction order, filed charge sheet.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copies of the prosecution papers are furnished to the accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 8 are examined. Documents as per Exs.P.1 to P.24 are marked and MOs 1 to 14 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and the accused has denied the incriminating evidence appearing against him. Accused has not chosen to lead any defence evidence on his behalf.
6. Heard the arguments and perused the records.
7. Now, the points that arise for my consideration are:-
POINTS
1) Whether the prosecution proves that there is valid sanction to prosecute accused ?
2) Whether the prosecution proves beyond all reasonable doubt that accused being public servant working as the Assessor, in the Office of Assistant Revenue Officer, Govindaraja Nagar Range Office, Bengaluru has demanded bribe of Rs.50,000/- for attending the work of amalgamation of khatha of property No.33 and 34 standing in the names of sons of complainant and then brought it down to Rs.35,000/- and on 30.7.2009 when complainant contacted accused by phone, he has demanded bribe amount of Rs.35,000/-
and again on the same day between 13.38 p.m. to 14.20 p.m. in front of Shashakara Bhavana in Vijayanagar, M.C.Layout, 4th Main, 6th Cross, accused again demanded and received Rs.35,000/- tainted notes as illegal gratification from the complainant as a motive or reward to do official act or official favour to the complainant and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3) Whether the prosecution further proves beyond all reasonable doubt that accused being public servant working as Assessor, in the Office of Assistant Revenue Officer, Govindaraja Nagar Range Office, Bengaluru on 30.7.2009 between 13.38 p.m. to 14.20 p.m. in front of Shashakara Bhavana in Vijayanagar, M.C.Layout, 4th Main, 6th Cross has by corrupt or illegal means or by abusing his position as a public servant, obtained pecuniary advantage of Rs.35,000/- without public interest from complainant and thereby committed offence of criminal misconduct which is an offence u/s 13(1)(d) of Prevention of Corruption Act, punishable u/s 13 (2) of Prevention of Corruption Act?
4) What order ?
8. My findings on the above points are :-
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, for the following:
REASONS
9. Point No.1: The offence alleged against accused are under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act. The accused is working as Assessor, in the Office of Assistant Revenue Officer, in B.B.M.P. Therefore, he is a public servant. As accused is a public servant, sanction from competent authority is necessary to prosecute him. To prove prosecution sanction order issued in this case as per Ex.P.7. P.W.3 - Bharath Lal Meena, earlier Commissioner of B.B.M.P. is examined. In his evidence, PW3 has stated about receipt of requisition from A.D.G.P., Karnataka Lokayuktha along with copies of investigation records like, FIR, mahazar, chemical examination report, statement of witnesses, etc., and stated that on receiving the same, he has gone through the records and applied his mind and found prima facie grounds to proceed against accused and has issued Prosecution Sanction Order as per Ex.P.7. In his cross-examination, he has stated that separate file is maintained in B.B.M.P. in respect of issue of sanction order and he has not brought the said file. He has denied that Prosecution Sanction Order was prepared by his subordinate and placed before him for signature. He has admitted that the accused is a government servant and that Prosecution Sanction Order is issued under Section 19(1)(c) of Prevention of Corruption Act. He has denied that without applying the mind Prosecution Sanction Order has been issued.
10. On going through Ex.P.7 and the evidence of P.W.3, it is clear that P.W.3 as Commissioner of B.B.M.P. in which accused was working, was competent sanctioning authority. In the prosecution sanction order - Ex.P.7 it has been mentioned that as per Section 19(1)(c) he is competent to issue sanction order against accused. In the cross- examination of P.W.3 witness has admitted that accused is a government servant. The learned counsel for accused has argued that in respect of state government servant prosecution sanction order is to be issued as per Section 19(1)(b) and not under Section 19(1)(c). Since the accused was working in B.B.M.P. and not directly under the state government, the employment of accused under B.B.M.P. would come under Section 19(1)(c) and the authority who is competent to remove him from his service as mentioned in Section 19(1)(c) would be competent authority to accord sanction to prosecute the accused. The Prosecution Sanction Order and the evidence of P.W.3 show that after receiving the requisition from ADGP, Karnataka Lokayuktha along with investigation records, P.W.3 has gone through the same and applied his mind and then found prima facie material to proceed against him and issued Ex.P.7. There is no material to show that the Prosecution Sanction Order is not proper. Moreover, on the basis of the same materials this court has taken cognizance of the offence and has framed charge. Therefore, prosecution is successful in proving that there is valid Prosecution Sanction Order against the accused. Accordingly, point No.1 is answered in the affirmative.
11. Point Nos. 2 & 3 : Since both these points are interlinked with each other, they are taken up together for discussion to avoid repetition.
12. To prove the charge against accused for offences punishable under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, the prosecution has examined 8 witnesses as P.Ws. 1 to 8. P.W.1 - Sampathraj is the complainant. P.W.2-Somashekarachar and P.W.4- D.V.Satish are the panch witnesses. Among them P.W.2 is a shadow witness. P.W.3-Bharath Lal Meena is the Prosecution Sanctioning Officer. P.W.5 - Srinivas is stated to have received tented notes on the instructions of accused from complainant. P.W.6- K.Chandrashekar is higher officer of the accused who is said to have identified the voice of the accused in the audio recordings. P.W.8-M.R.Kumar is the Assistant Revenue Officer. P.W.7 - Mohammed Irshad is the Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru is the Investigating Officer.
13. On behalf of the prosecution, the documents at Exs.P.1 to P.24 are marked. Ex.P.1 is the complaint and Ex.P.9 is the F.I.R. The Pre-trap mahazar is marked as Ex.P.3. Ex.P.1 is the sheet in which number of currency notes is noted. Trap Mahazar is marked as Ex.P.4. Portions of statements of P.W.2 are marked as Exs.P.5 and P.6. Prosecution Sanction Order is marked as Ex.P.7. The statement given by P.W.5 under Section 164 of Cr.P.C. is marked as Ex.P.8. Ex.P.10 is the transcriptions of the recordings in the C.D. produced at the time of giving complaint. Ex.P.16 is the transcription of the records in the voice recorder at the time of trap. The copy of file pertaining to the work of accused is marked as Ex.P.11. Ex.P.12 is the Report of Assistant Revenue Officer. The Attendance Register copy is marked as Ex.P.13 and the explanation said to have been given by accused is marked as Ex.P.14. The statement of P.W.5 is marked as Ex.P.15. Sample seal and acknowledgment are marked as Exs.P.17 and P.18. Chemical Examination Report is marked as Ex.P.19 and service details of accused of accused is marked as Ex.P.20. Spot sketch is marked as Ex.P.21 and the copy of the statement of P.W.1 is marked as Ex.P.22. Ex.P.23 is the Report given by P.W.8 and Ex.P.24 is copy of the Application given by the complainant to the Assistant Revenue Officer on 26.6.2009. Ex.P.24 is marked by confronting to P.W.1. M.Os 1 to 14 are also marked for the prosecution. M.O.1 to 9 are the solutions take in bottles at different stages of proceedings. M.O.10 is shirt of P.W.5. M.O. 11, 12 and 13 are the C.Ds. M.O.14 is the cash of Rs. 35,000/-.
14. As per the materials placed by the prosecution, P.W.1-complainant gave Ex.P.1-complaint before P.W.7 stating that his application for amalgamation of two sites belonging to his sons were not considered even after one year and when he subsequently visited the office of A.R.O., he was asked to give another application and he has given the application and after receiving the fresh application, he was asked to meet the accused and he contacted accused and on 25.7.2009 spot inspection was made and thereafter, accused demanded Rs.50,000/- and then reduced to Rs.40,000/- and again on 30.7.2009 and when P.W.1 contacted him by phone accused asked him to pay Rs.35,000/- and asked him to meet him at 1.00 p.m. Complainant recorded the conversation and converted into C.D. as per M.O.9 and produced before P.W.7. After receiving the complaint P.W. 7 registered the case in Crime No. 54/2009 and secured P.Ws 2 and 4 as panch witnesses and introduced them to the complainant and they ascertained veracity of the complaint and P.W.1 produced Rs.35,000/- and number of notes were noted down on Ex.P.2 and phenolphthalein powder was applied to the notes and P.W.4 after verifying the notes again has kept the notes in the left side shirt pocket of P.W.1 and thereafter he washed his hands in the sodium carbonate solution and the solution turned into light pink colour and it was seized in a bottle. The C.D. produced by the complainant at the time of giving complaint was played before the panchas and conversation was transcribed as per Ex.P.10 and then the C.D. was seized as MO.9 and the documents produced by the complainant regarding his work including the endorsement dated 20.3.2008 and the application dated 4.3.2008 were taken by P.W.7. P.W.1 was instructed to meet the accused and to enquire about the work and then to give tainted notes to the accused only in case of demand and then to give signal by taking out his spectacles and P.W.2 was asked to follow the complainant as a shadow witness and watch the happenings and to report later. Pen camera and voice recorder were fixed to P.W.1 with instructions to switch-on the same while meeting the accused and Pre-Trap-Mahazar as per Ex.P.3 was prepared and the signatures of the witnesses were taken.
15. As per the prosecution case, after pre-trap mahazar, trap team proceeded towards office of the accused in government vehicle and near B.B.M.P. office, near water tank, Vijayanagar vehicle was stopped and P.W.1 and 2 were sent to office of the accused. As accused was not there, P.W. 1 contacted accused by his mobile and accused asked him to come to Shashakara Bhavan of Binnepet constituency and P.W.1 and 2 went there and near tender-coconut shop on 6th Cross of Main Road, M.C.Layout they met accused, who was with P.W.5. Then they proceeded towards Shashakara Bhavan and while going, P.W.1 asked accused about his work and accused again demanded the bribe amount and asked P.W.1 to give the amount to P.W.5 and told that P.W.5 is his assistant and P.W.1 gave the tainted notes to P.W.5 and he took it and kept it in his shirt pocket. Immediately P.W.1 gave signal to the trap team by removing his spectacles and immediately the Inspector and his staff and another panch witness came there and surrounded the accused and followed further procedure of trap. In the Sodium carbonate solution, both hands of P.W.5 were washed and solution turned to apparent dirt colour and it was seized in bottles. The tainted notes in the shirt pocket of P.W.5 was taken out and it tallied with Ex.P.2 and was seized. Accused gave documents pertaining to the work of the complainant which was in his bag. Thereafter they came to Lokayukta Office and shirt of P.W.5 was got removed and the pocket portion was washed in the sodium carbonate solution and the solution turned to light pink colour and it was seized and shirt was also seized and the complainant produced Pen camera and voice recorder and the recordings were played and P.W.6 has identified the voice of the accused and also visuals in which the accused is seen and the recordings in the voice recorder were transcribed on a paper as per Ex.P.16 and transmitted to C.D. and seized as M.O.11. The video recording in the pen camera is transmitted to C.D. and seized as M.O.10. On questioning, accused gave written explanation as per Ex.P.14 and it was not acceptable and as the accused receiving the amount through P.W.5 prima facie found in the course of the trap proceedings, accused was arrested and produced before the Court and trap mahazar as per Ex.P.4 was prepared and signature of the witnesses were taken. P.W.7 continued further investigation and sent P.W.5 for recording his statement under Section 164 of Cr.P.C. as per Ex.P.8. P.W.7 secured several documents pertaining to the work of the complainant and also service details of the accused and also obtained Chemical Examination Report and submitted final report and after completion of the investigation and receiving Prosecution Sanction Order as per Ex.P.7 filed the charge sheet.
16. P.W.1-Complainant Sampathraj has stated in his evidence about application given by him for amalgamation of khatha and also demand made by accused for bribe and he giving complaint and producing the amount before the Lokayukta Police Inspector and following of other pre-trap procedures. He has stated that at the time of pre-trap, he made a phone call to accused to ascertain place and time to meet and conversation was recorded in mobile and it was played and then transmitted to C.D. through computer. This is contrary to complaint and pre-trap mahazar, wherein it is mentioned that P.W.1 had brought the C.D. of recordings in mobile. P.W.1 has stated that accused was waiting for him near Shashakara Bhavan along with his assistant Srinivas and he enquired about the work and accused asked him to pay amount to Srinivas and he has not agreed to give amount to him and he went to give tainted notes to accused by keeping it in his shirt and accused became suspicious and refused to take amount and tainted notes fell down on road and thereafter he gave signal. P.W.1 has also stated that hands of both Gajendra and Srinivas were washed in solution and solution turned to blue colour and has stated that notes which were fallen on road were collected and kept in a cover and he has also stated about preparing of Trap Mahazar. Except on these points which are contrary to prosecution case, generally P.W.1. has supported the prosecution case in his chief-evidence. He was treated as partly hostile and was cross-examined by learned Public Prosecutor, wherein he has denied that tainted notes were not fallen on ground, but they were in shirt pocket of Srinivas. He has admitted that trap took place in front of Shashakara Bhavan. He has denied his statement given as per Ex.P.22. In his cross-examination for accused, P.W.1 has admitted that both sites belonged to his two major sons, who are residing with him. He has stated that he is not aware that application given by his sons for amalgamation of khatha was earlier rejected and intimation was sent to his office address. He has stated that when he enquired, he was given endorsement dated 20.3.2008 on 26.6.2009 stating that his application was rejected earlier. He has stated that no construction has been made on these sites. He has admitted that, after meeting the Commissioner, he met accused who was Assessor and has stated that he do not know that accused was working in Ward No.35 and his sites are in Ward No.36. He has denied that accused informed him that as he is on election duty and he cannot handle his file. He has admitted that mobile in which conversation was recorded was not seized. He has stated that he do not know that his second application was also rejected before giving complaint on 30.7.2009. He has admitted that P.W.2 -Somashekhar was not with him and was standing at a distance. He has denied that when accused refused to receive the amount, he thrusted the amount in the pocket of accused and denied that accused had informed him that he had no authority to do his work and his application was already rejected.
17. P.W.2 - Somashekharachar and P.W.4-D.V.Satish are panch witnesses. P.W.2 is a shadow witness. Both these witnesses have stated about pre-trap procedures followed in the Lokayuktha office and have generally stated the prosecution case, except portions which are hereinafter referred. P.W.2 has stated that as shadow witness he went along with P.W.1 to office of accused and asked about the khatha and P.W.5 was also with accused and has stated that P.W.1 gave tainted notes in the hands of P.W.5 and P.W.5 kept it in his left side shirt pocket and thereafter P.W.1 gave signal by wiping face with right hand. He has also stated that accused was brought to the office of P.W.7 and in the Lokayuktha office shirt pocket of P.W.5 was washed and solution turned to blue colour. As portions of his evidence was against the prosecution case, he was treated as hostile and was cross-examined by learned Public Prosecutor, wherein P.W.2 has denied that the recording in C.D. was played before them at the time of pre-trap and he has heard the voice of the accused and P.W.1. He has stated that pen camera and Voice recorder were placed in the hands of P.W.1 and photographs were flashed and he denied that he accompanied P.W.1 to office of accused. He has admitted that accused was not there in the office and thereafter P.W.1 contacted the accused and they proceeded towards office in Binnypet and near the tender coconut shop the accused along with P.W.5 was found. He has denied that the accused asked P.W.1 to give tainted notes to P.W.5, but admitted that P.W.1 gave tainted notes to P.W.5 and he kept it in his left side shirt pocket. He has denied that there was conversation between the accused and P.W.1 about the file of P.W.1. He has denied his statement given as per Exs.P.5 and P.6. In his cross-examination for the accused he has stated that the cassette was not played in his presence and pre-trap mahazar and trap mahazar were not read by him.
18. P.W.4 has stated that after pre-trap mahazar they proceeded to B.B.M.P. office, Vijayanagar and thereafter P.W.1 called accused and he asked to wait for some time and after 10 or 15 minutes two persons came there and started talking with P.W.1 and thereafter P.W.1 gave signal by removing his spectacles and immediately trap team went there and complainant told that he has paid the amount to Srinivas and the amount was in left side shirt pocket and has stated about further procedures followed. This witness was treated as partly hostile and was cross-examined by the learned P.P, wherein he has admitted the prosecution case that trap took place near Shashakara Bhavan. He has denied that Metal seal used for seizing the articles was given to him. In his cross-examination for the accused, he has stated that he has not read Ex.P.3 and has not seen complaint and admitted that from the place where himself and inspector were waiting, accused and complainant were not visible. He has admitted that at the time of typing Ex.P.4 - Trap Mahazar, he was not present in Lokayuktha office and police have not enquired him. He has stated that on the next day he went to Lokayuktha office and signed all the documents without reading.
19. P.W.5-Srinivas is the person who is stated to have received tainted notes from P.W.1 on the instructions of accused. He has stated that he was knowing accused from one year, who was working as Revenue Inspector and he had gone to B.B.M.P. office on 30.7.2009 with regard to work of his friend and he came to know that accused was in Shashakara Bhavan in Binnypet, he went there and he has seen accused from distance and accused asked him to receive amount from a party who was nearby and to give it to him and he received the amount and kept it in his shirt pocket and immediately Lokayukta Police came and enquired him and seized the amount and washed his hands in solution etc., He has also stated that on the next day he was taken to City Civil Court wherein he has given statement as per Ex.P.8 before 17th A.C.M.M., Bengaluru. In his cross- examination, he has stated that he do not know name of person who gave amount. P.W.5 has stated that he was only helping another Revenue Inspector Srinivas in election work and he do not know whether the complainant kept the amount in his pocket as arrears of tax and he do not know for what it was. He has admitted that in the Lokayuktha office he was asked to give statement as per Ex.P.8 and Lokayukta Police were also with him when he was taken to A.C.M.M. Court.
20. P.W.6 - KC.Chandrashekhar is the higher officer of the accused. He has stated voice in the audio recorder was played before him and video recording was also seen by him and voice in audio was similar to that of accused. When he was cross examined by treating as hostile, he has admitted that two audio recordings and one video recording was played before him and he has seen and identified them. In his cross-examination for the accused, he has admitted that himself and accused were on election duty on 30.7.2009 and he do not know fake video recording was recorded. He has admitted that for amalgamating two sites a structure is necessary at the spot in case of BDA sites and admitted that accused was entrusted with Ward No.35 at that time.
21. P.W.8 - M.R.Kumar, who is the Assistant Revenue Officer has stated that application of Sampathraj for amalgamation was rejected earlier as there was no construction in the site and has stated that accused was having regular duty in Ward No.35 and was incharge of Ward No.36 and was also having election duty. He has stated that a new application given by Sampathraj had come before him and he had sent the same to the case worker Prakash to attend and case worker had entrusted the work of spot inspection to accused and work was pending before accused and regarding this he has given report as per Ex.P.23. In the cross-examination by the accused he has admitted that for amalgamation of two sites there should be construction. He has admitted that site owner had not given any authorization to Sampathraj to make correspondence with B.B.M.P. He has admitted that owner of sites wee informed that only after constructing building and informing B.B.M.P., their application would be considered and has admitted that, site owner had no intimated about any construction made in their sites after receiving endorsement. He has admitted that in Ex.P.24 there is no signature of accused for having received it and there is no endorsement of the case worker.
22. P.W.7 - Mohammed Irshad, Police Inspector is the Investigating Officer. He has stated about registering of the case and about pre-trap and trap proceedings and about entire investigation done by him and also about filing of charge sheet. In his cross-examination, he has denied that, he had given digital voice recorder to complainant to record conversation with accused and had asked complainant to bring amount on 30.7.2009. He has admitted that, as per the endorsement dated 20.3.2008 produced along with complaint, which is at page No.7 of the charge sheet, his application was earlier rejected with a direction to comply with requirements mentioned therein. He further admitted that, complainant had given fresh application as per Ex.P.24 on 26.6.2009 and admitted that complainant has suppressed the fact of earlier rejection while giving complaint. P.W.7 has stated that he has not seized the original device in which the conversation of accused with complainant was recorded. He has admitted that, in Ex.P.10 there is no specific word of demanding bribe and he has not collected the specimen voice of accused and complainant and he has not sent voice of accused for expert's opinion. He has stated that in respect of C.D.s seized and transcriptions, he has not obtained Certificate as required under Section 65B of the Indian Evidence Act. He has denied that, under threat the statement of P.W.5 was got recorded under Section 164 of Cr.P.C. as per Ex.P.8. He has admitted that, if the order is passed by the higher officer, subordinate official cannot change or go against it and has admitted that accused was subordinate official to officer who gave endorsement earlier.P.W.7 has admitted that, accused had no power to do any favour to complainant.
23. In order to bring home the guilt of accused for offences punishable under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, the prosecution has to prove that accused being public servant has demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing official act or for doing official favour. On proof of demand and acceptance, presumption can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7 of P.C.Act. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established.
In a decision reported in (2015) 11 SCC 314, (C.Sukumaran /vs/ State of Kerala) Hon'ble Supreme Court has held in para No.13 as under:
".....it has been continuously held by this Court in a Catena of cases after interpretation of the provisions of Sections 7 and 13(1) (d) of the Act that the demand of illegal gratification by the accused is the sine-qua-non for constituting an offence under the provisions of the Act".
Therefore, proof of demand is harbinger in proving commission of offence under Section 7 of P.C.Act. If prosecution fails to prove the demand of bribe amount by the accused, further efforts of the prosecution to prove acceptance and recovery of the amount would not be of much importance.
24. To prove demand of bribe, prior to giving complaint, prosecution is relying on evidence of P.W.1. Prosecution case is also depending on C.D. produced by complainant at the time of giving complaint. It is stated that P.W.1 had spoken to accused on 30.7.2009 from his mobile and conversation has been recorded and then he got transmitted the same to a C.D. and produced along with complaint before P.W.7 and this C.D. was played before the panch witnesses at the time of pre-trap mahazar and thereafter during the course of investigation, it was played before P.W.6 and he has identified voice of accused in the said recordings and the C.D. is produced as M.O.13 and its transcription is marked as Ex.P.10. As per the prosecution case, in this conversation, there is clear demand of bribe by accused. According to prosecution, even at the time of trap accused demanded bribe and thereafter on his instructions amount was received by P.W.5 from P.W.1. The conversation at the time of Trap is stated to have been recorded in voice recorder and pen camera affixed to P.W.1. These recordings are said to have been transmitted to CDs as M.O.11 and 12 and recording in Voice recorder is transcribed as per Ex.P.16. The voice of accused in these recordings are said to have been identified by P.W.6. Shadow witness-P.W.2 is also witness to prove the demand of bribe at the time of Trap. P.W.2 has stated that he was at a distance. He has not stated anything about demand of bribe by accused at the time of Trap. P.W.1 has also stated that P.W.2 was not with him and he was standing at a distance.
25. Therefore, entire case of demand of bribe by accused to attend work of complainant before giving complaint and at the time of trap is depending on the evidence of P.W.1-complainant and also the C.Ds of recordings produced at M.O.13, 11 and 12 and transcriptions at Ex.P.10 and 16. In the complaint it is stated that conversation had by complainant with accused on 30.7.2009 was recorded in mobile and then transmitted to C.D. and produced, while giving complaint. However, P.W.1 has stated that at the time of pre-trap Mahazar he had made phone call to accused and asked about the work and accused asked him to come to Govindarajanagar B.B.M.P. Office and this conversation recorded in the mobile was played through computer and transmitted to C.D. before the panch witnesses. Therefore, as per the evidence of P.W.1, recording in MO 13 is conversation had by P.W.1 at the time of pre-trap mahazar. This evidence of P.W.1 is contrary to Complaint and pre trap mahazar. Even other witnesses have not stated anything about complainant making phone call at the time of pre-trap. P.W.1 himself has not stated about producing the CD containing conversation had before giving complaint. Regarding MO.13 CD, complaint averments and evidence of P.W.1 are mutually destructive. Admittedly, there is no Certificate u/s 65B of Indian Evidence Act in respect of MO.13 given by complainant. The mobile in which conversation is said to have been recorded is not seized. Even in respect of MO.11 and 12 and transcriptions at Ex.P.10 and 16, Certificate u/s 65B of Indian Evidence Act is not produced. P.W.7 has admitted that he has not taken voice sample of accused and has not sent these recordings for expert's opinion. Though recordings in this C.D. at M.O.13 and also other CDs M.O.12 and M.O.11 were identified by P.W.6, he is not an expert in voice identification. Moreover, P.W.6 has only stated that voice in the audio recording was similar to the voice of accused. Therefore, this identification of the voice by P.W.6 does not conclusively prove that one voice in M.O.13 and 12 C.Ds is that of accused.
26. In a decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has held that "when the secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act".
27. In Criminal Petition No. 3202/2017 (M.R.Hiremath Vs. The State by Karnataka Lokayuktha Police Station), relied by the learned counsel for accused, Hon'ble High Court of Karnataka has held in page No.10 that, "... The evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Thus, in the case of any electronic evidence, it shall be accompanied by a certificate in terms of Section 65-B obtained at the time of bringing the documents on record, no secondary evidence is permissible in respect of the same."
Therefore, these C.Ds at M.O. Nos. 11, 12 and 13 and the transcriptions at Exs.P.10 and 16 are not of any help to prosecution case. Under such circumstances, only evidence on which prosecution has to prove its case of demand of bribe is evidence of complainant-P.W.1.
28. P.W.1 has stated that when he met accused, he said that he has to meet huge expenditure and without making payment, no work could be done and demanded Rs.50,000/- and then brought it down to Rs.35,000/-. Except these general statements, P.W.1 has not given any details about the demand of bribe by accused and also has not stated the dates on which said demand is made. Moreover, Sites in respect of which application was filed were not standing in the name of complainant. P.W.7 and 8 have admitted that there was no authorization given to P.W.1 by his sons to make correspondence with B.B.M.P. with regard to amalgamation of khatha. When complainant was not having any legal authority to give application as per Ex.P.24, there was no valid application given pending before B.B.M.P. P.W.1 has not given details of the work pending and demand of bribe. Though in Ex.P.1, details are found, they are not supported in evidence of P.W.1. Moreover, application for amalgamation given on 4.3.2008 was already closed by giving endorsement on 20.3.2008 by stating that amalgamation can be considered only if there is construction in the sites. As admitted by P.W.1 and 8, there was no construction made by the owners of the sites before moving application on 26.6.2009 as per Ex.P.24. P.W.7 has admitted that earlier endorsement dated 20.03.2008 was given by Higher officer of Accused and accused has no authority to go against such order of Higher Officer passed earlier.
29. On looking to these aspects, only on the evidence of P.W.1 that he approached accused and he demanded amount, alleged demand of bribe by accused does not get proved. In Ex.P.1, it is stated that on 25.07.2009 accused inspected the spot. As per evidence of P.W.8 accused was given the work of inspecting the spot. This inspection is already done. Therefore, there was no work of the complainant pending with accused as on 30.07.2009. Moreover as admitted by PW8, accused was in regular duty in Ward No.35 and these sites are coming in ward No.36. Though it is stated that accused was also incharge of Ward No.36, no such material is produced. In the absence of corroborating evidence, alleged demand of bribe amount by accused is not established by the only evidence of P.W.1. Even to prove, alleged demand of bribe at the time of trap, evidence of P.W.2-shadow witness is not helpful. Therefore, alleged demand of bribe at the time of trap or on 30.07.2009 as mentioned in complaint or earlier is not established in this case.
30. Apart from this, prosecution must also show that demand and acceptance of bribe is as motive or reward to do an official act or to official favour. Admittedly, complainant is not the owner of sites and site Nos. 33 and 34 were standing in the name of sons of complainant who have not given any authorisation to the complainant to approach B.B.M.P. on their behalf. Those two sons of the complainant are not enquired, questioned or cited as witnesses in this case. The copy of the records show that on 4.3.2008 application was given for amalgamation with records and on 20.3.2008 by the A.R.O., Govindarajanagar, gave endorsement stating that on making construction in the sites, application of Rajesh Kumar who is son of complainant can be considered. On 26.6.2009 P.W.1 gave another application, without complying endorsement dated 20.03.2008, stating that only after getting sanction plan he can start construction and stating that long back one officer Srinivas has inspected the spot. As earlier endorsement dated 20.03.2008 was given by Higher officer of Accused, he cannot go against such order of Higher Officer passed earlier. On looking to all these aspects, capacity of accused to do alleged work of the complainant is not established in this case. Therefore, there are no materials to show that work of complainant or his sons with regard to amalgamation of khatha was pending before accused at relevant time. When no work of complainant was pending with accused, he demanding bribe from the complainant does not arise. As the endorsement was already given earlier on 20.3.2008 and even thereafter no construction was made in the sites and requirements as mentioned in endorsement was not complied, there was no any official favour which could be done by accused to complainant. Looking from any angle, the demand of bribe amount by the accused to attend the work of complainant is not established in this case.
31. Coming to acceptance of bribe amount, P.W.1 has not supported prosecution case. He has stated that when he went to meet accused, P.W.5 was also with him and accused asked him to pay amount in his hands and he refused and when he went to pay amount to accused, accused became suspicious and has not received it and the tainted notes fell on road and then he gave signal. On the other hand, P.W.2 states that P.W.1 gave tainted notes to P.W.5 and he kept them in his shirt pocket. As per the prosecution case, when P.W.1 went to give amount to accused, he asked him to give it to P.W.5 and P.W.1 gave it to P.W.5 and he kept in his shirt pocket. Therefore, P.W.1 himself has not supported the prosecution case with regard to acceptance of bribe amount. P.W.1 evidence does not prove that tainted notes are received by P.W5 on the say of Accused. Though PW2 has stated that P.W.5 received tainted notes, P.W.1 has stated that P.W.2 was not with him and was standing at a distance. Moreover, PW2 has also not stated that PW5 received these notes as per instructions of accused. As per the prosecution case, the entire trap took place in front of Shashakara Bhavan and when P.Ws 1 and 2 went to the office of accused, he was not there and on making phone call, accused asked P.W.1 to come near Shashakara Bhavan. However PW4 has stated that accused was not in the office and he came after 15 minutes to the office and then trap took place. P.W.2 has denied the suggestion put by learned Public Prosecutor, that accused asked P.W.1 to give tainted notes to P.W.5 stating that he is his assistant. Admittedly, the amount is not touched by the accused. Even the hand wash was made of P.W.5 and not of the accused. Though some witnesses have even stated about hand wash of accused, Trap Mahazar show that hands of P.W.5 were washed in the solution. Accused asking P.W.1 to give amount in the hands of P.W.5 cannot be proved by evidence of P.W.5, in the absence of corroboration. Though P.W.1 has stated that accused asked him to give this amount to P.W.5, he has stated that he refused to give it to P.W.5 and he went to keep amount in shirt pocket of accused and then amount fell down and after Lokayukta Police Inspector coming there, notes were lifted from the ground.
32. Therefore, by the evidence of P.Ws 1 and 2 and even P.W5, receipt of the amount by P.W.5 on the instructions of accused at the time of trap does not get established. Similarly, P.Ws 1 and 2 in their evidence have stated that near Shashakara Bhavan, near tender coconut shop accused was standing with P.W.5. On the other hand, P.W.5 has stated that when he went near Shashakara Bhavan, P.W.1 was already there with accused. Though P.W.5 has received the amount, he is not made accused in this case. On looking to entire evidence of P.W.1, 2 and 5, who were stated to be present at the time of trap, acceptance of tainted notes by accused through P.W.5 from P.W.1 is not established. Tainted notes are not recovered from accused. There is no clear evidence to show that it was accused who had instructed the complainant to give amount to P.W.5 and P.W.5 has received tainted notes on behalf of accused. As stated above, C.Ds produced by the prosecution are not admissible in evidence. The evidence of P.Ws 1, 2 and 5 are not consistent and corroborative to each other. Under such circumstances, acceptance of tainted notes by accused through P.W.5 and also recovery of amount from accused are not established in this case.
33. In 2006 (KCCR) 1445 (State of Karnataka Vs. K.T.Hanumanthaiah), relied by the learned counsel for accused, Hon'ble High Court has held that, "In case of offence under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act there should be independent corroboration in proving the case of demand and acceptance of bribe."
34. In another decision reported in (2011) 6 SCC 450 (State of Kerala and another Vs C.P. Rao) Hon'ble Supreme Court has held that, When there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on."
35. In 2016 (1) KCCR 815 (R.Srinivasan and another Vs. State of Police Inspector Lokayuktha, Bangalore) it is held that, "In a trap case 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. However, his evidence needs corroboration in material particulars and this is where corroboration by the shadow witness assumes importance."
In the present case, the evidence of shadow witness - P.W.2 does not corroborate with the evidence of P.W.1. Even evidence of P.W.1 with regard to trap is contrary to prosecution case. Though the tainted notes are recovered from PW5, mere recovery is not sufficient.
36. In 2010 AIAR (Criminal) 495 (Banarasi Dass Vs. State of Haryana), they held that, "Demand & acceptance of money for doing favour a favour in discharge of his official duties is sine-qua-non to the conviction of the accused. Mere recovery of tainted notes divorced from the circumstances under which it was paid would not be sufficient to convict the accused."
37. In 2013 SAR (Criminal) 945 (State of Punjab Vs. Madan Mohan Lal Verma), in para No.7 the Hon'ble Supreme Court has held as under : -
"The law on the issue is well settled that demand of illegal gratification is sine- qua-non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification."
38. The learned counsel for accused has relied on the decision reported in 2014 (13) SCC 55 B.Jayaraj Vs State of Andra Pradesh also the Hon'ble Supreme Court has held in Para No.7 as under :-
"In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine-qua-non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court".
39. In another decision reported in AIR 2015 SC 3549, (P.Satyanarayana Murthy /vs/ Dist. Inspector of Police and another) in Para No.21 and 22, the Hon'ble Supreme Court has held as under:
"21. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and
(ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail.
Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."
40. In a decision reported in (2009) 3 Supreme Court Cases 779, (C.M.Girish Babu /vs/ CBI, Cochin, High Court of Kerala,) the Hon'ble Supreme Court has held that:
" Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".
In para 18, it is held " ... mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".
41. On looking to entire evidence led by prosecution and the decisions cited above in this case, demand of bribe amount by accused to do any official act of complainant or to do an official favour to complainant itself is not established. The prosecution has also failed to establish the receipt of tainted notes by P.W.5 on the instructions and on behalf of accused at the time of trap. When demand of bribe to do an official act itself is not established, question of accused accepting bribe does not arise. Even if the acceptance of the tainted notes by PW5 and its recovery from him are established, prosecution cannot succeed as there is no clear evidence to show that P.W.5 has received tainted notes on the instructions of Accused. Even otherwise, as held in various decisions referred above, in the absence of proof of demand of bribe, offence under section 7 and 13(1)(d) will not be established.
42. Though there is a presumption U/s.20 of Prevention of Corruption Act, only on proof of demand and acceptance of amount, presumption can be drawn that such receipt of gratification is as a motive or reward as mentioned in Section 7. Therefore demand and acceptance are to be proved to draw the presumption U/s.20 of the Prevention of Corruption Act. In a decision of the Hon'ble Supreme Court reported in 2010 (3) KCCR 1851 (State of Karnataka Vs. M.Gopalkrishnaiah), Hon'ble High Court has held that, "To draw presumption under Section 20 of the Act, the prosecution is required to prove that there was demand and acceptance."
43. In another decision reported in (2006) 13 SCC 305, [V.Venkata Subba Rao Vs State, Represented by Inspector of Police ( A.P.)], the Hon'ble Supreme Court has held in para No.24, that, "In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved." In this case, prosecution has failed to discharge initial burden of proving the demand and acceptance of illegal gratification by the accused. Hence, presumption cannot be drawn under section 20 of P.C.Act.
44. For all these reasons, prosecution has failed to prove that accused has demanded and accepted illegal gratification from complainant and committed the offence under Section 7 of Prevention of Corruption Act. Similarly, any criminal misconduct of accused by receiving any pecuniary advantage without any public interest is also not made out. Therefore, prosecution has failed to prove the guilt of accused beyond all reasonable doubt. Accordingly, points Nos.2 and 3 are answered in the Negative.
45. POINT No.4:- For the discussion and findings on Point Nos.1 to 3, accused is to be acquitted. Hence, following order is passed:
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bond executed by accused and his surety stands cancelled.
MO.14 Cash of Rs.35,000/- is ordered to be confiscated to the Government after expiry of appeal period.
MO-1 to 13 are ordered to be destroyed after the expiry of appeal period, as they are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 15th day of June 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Sampath Raj PW.2 Somashekar achar PW.3 Bharath Lal Meena PW.4 D.V. Sathish PW.5 Srinivas C.S. PW.6 K.Chandrashekar PW.7 Mohd. Irshad PW.8 M.R. Kumar
List of documents exhibited for the prosecution:
Ex.P.1 Complaint P.1 (a) Signature of PW1 P.1 (b) Signature of PW7 Ex.P.2 Currency details sheet P.2 (a) Signature of PW2 P.2 (b) Signature of PW4 P.2 (c) (d) Signature of PW7 Ex.P.3 Pre-Trap mahazar P.3(a) to (e) Signatures of PW2
P.3(f) to (h), (k) to (l) Signatures of PW4 P.3 (m) Signature of PW1 P.3 (n) Signature of PW7 Ex.P.4 Trap Mahazar P.4 (a) to (i) Signatures of PW2 P.4 (j) to (s) Signatures of PW4 Ex.P.4(t) Signature of Pw1 Ex.P.4 (u) Signature of PW7 Ex.P.5 and 6 Potions of statement of Pw.2 Ex.P.7 Prosecution Sanction Order P.7 (a) Signature of PW3 Ex.P.8 Statement u/s 164 of CrPC.
Ex.P.8(a) Signature of Pw4
Ex.P.8(b) Signature of Pw4
Ex.P.9 FIR
Ex.P.9(a) Signature of Pw7
Ex.P.10 C.D transcribed sheet
Ex.P.11 Attested copies documents
Ex.P.12 Higher officer report regarding identifying
of the voice report
Ex.P.13 Attendance Register
Ex.P.14 Written explanation of accused
Ex.P.14(a) Signature of Pw7
Ex.P.15 Explanation letter of Pw7 to P.I
Ex.P.15(a) Signature of Pw7
Ex.P.16 Transcribed sheet
Ex.P.17 Sample seal
Ex.P.17(a) Signature of Pw7
Ex.P.18 Acknowledgment of Cw.3
Ex.P.19 Chemical examination report
Ex.P.20 Service particulars of accused
Ex.P.21 Sketch from A.E.E
Ex.P.22 Portion of the statement
Ex.P.23 Written statement of Pw.8
Ex.P.23(a) Signature of Pw.8
Ex.P.24 Copy of application of complaint
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
- Nil -
Material Objects marked by Prosecution :
MOs-1 to 9 Bottles containing solution (a(Article Nos.1,2,3,4,4A,5,5A,7and 7A) MO-10 Shirt of Srinivas MO-10(a) Cover MOs 11 to 13 CDs (Articles Nos.9 to 11) MOs.11(a) to 13(a) Covers MO-14 Cash MO-14(a) Cover LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru. ***