Bangalore District Court
State Of Karnataka Represented By vs T.Yathish Kumar on 9 February, 2018
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 09th day of February, 2018
PRESENT:
SMT. MANJULA ITTY, B.A.L. LL.B.,
XXIII Additional City Civil and Sessions Judge
Special Judge,
Bengaluru Urban District, Bengaluru City.
SPL.C.C. NO.518/2016
Complainant: State of Karnataka represented by
Deputy Superintendent of Police-3,
City Division, Karnataka Lokayuktha,
Bengaluru.
(By Sri D. Ramesh Babu, Public
Prosecutor)
V/s
Accused: 1. T.Yathish Kumar, S/o Late
Thimmaiah, aged about 31 years, then
Village Accountant, Anjanapura Circle,
Nadakacheri, Uttarahalli Hobli,
Banashankari, Bengaluru. Resident of
No.136, 11th Cross, B.H.E.L Lay Out,
2nd Stage, Pattanagere, Rajarajeshwari
Nagara, Bengaluru 560 098.
2. Muniyappa S/o Narasimhaiah, aged
about 37 years, Village Assistant,
Sarakki Circle, Nadakacheri, Uttarahalli
2 Spl.C.C.No.518/2016
Hobli, Banashankari Bengaluru.
Resident of Chandrappa Circle,
Tavarekere Hobli, Bengaluru South
Taluk.
3. K.Venkatachala S/o Krishnappa,
aged about 40 years, resident of
No.3731, 9th Main Road, 4th Cross,
Banashankari 2nd Stage, Bengaluru 560
070.
(By Sri I.S.Pramod Chandra, Advocate
for accused nos 1 to 3)
JUDGMENT
Deputy Superintendent of Police, Karnataka Lokayuktha, City Division, Bengaluru urban has submitted charge sheet against accused Nos. 1 to 3 for the offences punishable under section 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. Case of the prosecution case unfolded is that one Narayanaswamy N (herein after referred as de-facto complainant) entered into an agreement of sale of land measuring 2.00 acres in Survey No.80 of Gollahalli village, 3 Spl.C.C.No.518/2016 Uttarahalli Hobli, Bengaluru South Taluk with one Gurumurthy and his family members of Haluvadi village, Kotthatthi Hobli, Mandya Taluk, Mandya District who are the owners of the aforesaid land for a sale consideration of Rs. one crore and on the same day he paid advance sale consideration of Rs. 10,00,000/- and registered the said deed at the office of the Sub-Registrar, Kengeri vide Registration Deed No.2826/2014-15. Since the Gurumurthy belongs to Bhovi caste coming under Schedule Caste and the said land was granted land, he had to obtain permission from the Government for the sale of his said property. The said Gurumurthy and his family members executed the General Power of Attorney dated 28.06.2014 in favour the de-facto complainant to obtain the required permission from concerned office and also for correspondence to various departments. Later, the de-facto complainant on behalf of Gurumurthy and his family submitted a representation dated 09.10.2014 to the Deputy Commissioner, Bengaluru City 4 Spl.C.C.No.518/2016 seeking to grant permission to sell the above said two acres of land. This was sent to the A. C. Office, then to Tahasildar office, thereafter to Deputy Tahasildar, Uttarahalli and finally with the accused No.1. The de-facto complainant approached the accused No.1 continuously for three months, later accused No.1 asked the complainant to bring the owner of the land for recording statement. The de-facto complainant produced the sketch of the land. On 9.7.2015 again the complainant met the accused No.1. He approached accused No.2 who informed him that the Revenue Inspector and Village Accountant were demanding Rs. 2 lakhs as bribe amount for attending the file. At his request accused No.2 scaled down the bribe amount to Rs 1,00,000/-, then to Rs.80,000/- including Rs 5000/- to accused No.2 and accused No.2 asked the complainant to arrange the said amount within two days. The complainant recorded the said conversation in his mobile. On 17.7.2015 again he met accused No.1 and explained about the demand of bribe of Rs 5 Spl.C.C.No.518/2016 80,000/- by the accused No.2, requested to scale down the bribe amount, for which accused No.1 rejected the plea of complainant. He recorded the said conversation also in his mobile. On 20.07.2015 he went to the Karnataka Lokayuktha police station, Bengaluru and submitted a complaint against the accused persons. After the filing of complaint, the investigating officer secured two witnesses. The complainant produced cash of Rs 80,000/- before the investigating officer. The investigating officer conducted pre-trap proceedings and proceeded to the office of accused Nos 1 and 2 along with his staff, the two witnesses and the complainant. The complainant along with the shadow witness entered the office of accused Nos 1 and 2 and approached accused No.1 along with the shadow witness. When the complainant was about to give the tainted notes to accused No.2, on the instructions of accused No.1, the complainant was instructed by accused No.2 to hand over tainted notes to accused No.3 who according to the 6 Spl.C.C.No.518/2016 investigating agency is the person engaged by accused Nos 1 and 2 to receive illegal gratification. Accused No.3 accepted tainted notes of Rs 80,000/- from the complainant as per the instructions of accused Nos 1 and 2. Afterwards the investigating officer conducted trap proceedings and apprehended accused Nos 1 to 3 and produced them at the Home Office of this Court on 21.07.2015 at 7.00 p.m. with remand application and they were remanded to judicial custody and later they were released on bail on 04.08.2015. CW20 recorded the statement of witnesses, obtained FSL report and secured sanction to prosecute the accused Nos.1 and 2. After completion of the investigation he laid the charge sheet against the accused Nos.1 to 3 for the alleged offences.
3. The accused Nos.1 to 3 were secured through summons and were supplied with copies of the charge sheet as contemplated under section 207 Cr.P.C. On 22.02.2017, my learned predecessor framed the charge against the 7 Spl.C.C.No.518/2016 accused Nos.1 and 2 for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and framed charge against the accused No.3 for the offence punishable under section 8 of the Prevention of Corruption Act. Charges was read over and explained to accused Nos.1 to 3 who pleaded not guilty and claimed to be tried.
4. In order to prove the prosecution case, the prosecution has examined in all seven witnesses as PWs 1 to 7, exhibited as many as 29 documents as Exs. P.1 to P.29 and produced MOs. 1 to 13 and 13(a). After closure of the prosecution evidence, statement under section 313 Cr.P.C of accused were recorded. They denied all the incriminating circumstances appeared against them in the prosecution evidence and they examined one Sri. Gurumurthy as DW 1 on their behalf.
8 Spl.C.C.No.518/2016
5. I have heard arguments addressed on behalf of the accused persons as well as the prosecution, perused the materials placed before this Court and evidence on record. The following points arise for consideration.
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 and 2 being public servants working as Village Accountant and Village Assistant have demanded illegal gratification of Rs.2,00,000/- from the de-facto complainant for issuing a permission letter of the Government for purchasing a landed property bearing Sy.No.80 (Old Sy.No.30/20) measuring 2 acres situated at Gollahalli village, Uttarahalli Hobli, Bengaluru South and later the said bribe amount was scaled down to Rs.80,000/-
and 21.07.2015 between 12.00 and 12.10 noon under Avenue tree situated in front of Nadakacheri office, accused No.3 received the illegal gratification of Rs.80,000/- on behalf of accused Nos 1 and 2 from the complainant and thereby 9 Spl.C.C.No.518/2016 the accused Nos.1 and 2 have committed the offence punishable under section 7 read with section 13(2) of the Prevention of Corruption Act ?
2. Whether the prosecution proves beyond reasonable doubt that on the said date, time and place, accused Nos.1 and 2 have abused their official position by demanding and accepting illegal gratification of Rs.80,000/- from the complainant, committed criminal misconduct and thereby accused Nos.1 and 2 have committed the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act ?
3. Whether the prosecution proves beyond reasonable doubt that on the said date, time and place, accused No.3, a private person obtained illegal gratification of Rs. 80,000/- on behalf of accused Nos 1 and 2 from the complainant as a motive or 10 Spl.C.C.No.518/2016 reward, for inducing by corrupt or illegal means to influence accused Nos 1 and 2 for helping the complainant in getting permission to purchase of property of one Gurumurthy and thereby accused No.3 has committed the offence punishable under section 8 of the Prevention of Corruption Act?
4. What order?
6. My findings on the above points are as under:
1. Point No.1: In the Negative.
2. Point No.2: In the Negative.
3. Point No.3: In the Negative.
4. Point No.4: As per final order, for the following:
REASONS
7. POINT NOS.1 TO 3: For the sake of convenience and in order to avoid repetition of discussion I have chosen to discuss point nos 1 to 3 together.
11 Spl.C.C.No.518/2016
8. Undisputed fact is that the accused Nos.1 and 2 are public servants. Accused No.1 was working as Village Accountant, Anjanapura Circle, Nadakacheri, Uttarahalli Hobli, Banashankari, Bengaluru and accused No.2 as Village Assistant, Sarakki Circle Nadakacheri, Uttarahalli Hobli, Banashankari, Bengaluru. Accused No.3 is a private person. It is also not in dispute that the complainant Narayanaswamy entered into an agreement with Gurumurthy and his family members for purchase of land bearing Sy.No.80 (Old No.30/20) measuring 2 acres situated at Gollahalli village, Uttarahalli Hobli, Bengaluru South Taluk and a General Power of Attorney was executed by the said Gurumurthy and his family members appointing the complainant Narayana Swamy to set right the revenue documents of the aforesaid land and to get permission for purchase of the said land.
12 Spl.C.C.No.518/2016
9. It is the case of the prosecution that the accused Nos.1 and 2 have demanded illegal gratification of Rs.2,00,000/- from the complainant for issuing the permission letter of the Government for purchasing the immovable property bearing Sy.No.80 (Old Sy.No.30/20) measuring 2 acres situated at Gollahalli village, Uttarahalli Hobli, Bengaluru South from Gurumurthy and his family members and later it was scaled down to Rs.80,000/- and 21.07.2015 in between 12.00 and 12.10 noon under the avenue tree situated in front of Nadakacheri office, accused No.3 received the illegal gratification of Rs.80,000/- on behalf of accused Nos 1 and 2 from the complainant. Defence of the accused persons are denial of the case of the prosecution in toto.
10. Before coming to the facts of the case, it is necessary to decide the validity of the sanction order obtained by the prosecution to prosecute the accused Nos 1 and 2 for the alleged offence.
13 Spl.C.C.No.518/2016
11. Valid sanction is sine qua non in the case under the Prevention of Corruption Act 1988. In view of section 19 of the Act the Court cannot take cognizance of the offence punishable under section 12 of the Prevention of Corruption Act 1988 alleged to have been committed by the public servant except with the previous sanction by the competent authority. It is well settled law that the sanction order can be challenged on two grounds; one is the competency of the sanctioning authority and another is the non-application of mind by the sanctioning authority.
12. Ex.P.1 is the sanction order dated 30.07.2016 issued by the Deputy Commissioner and Recruitment Authority, Bengaluru District, Bengaluru to prosecute the accused No.1 and Ex P2 is the sanction order dated 03.11.2016 issued by the Tahasildar, Bengaluru Taluk, Bengaluru to prosecute the accused No.2 for the alleged offences punishable under section 7, 13(1)(d) read with 14 Spl.C.C.No.518/2016 section 13(2) of the Prevention of Corruption Act, 1988. PW1 V. Shankar was the Deputy Commissioner, Bengaluru District, Bengaluru, during the year 2014 who issued sanction order Ex.P.1. PW2 Shivakumar S.M was the Tahasildar, Bengaluru South Taluk, during the year 2014 who issued sanction order Ex.P.2. Their oral evidence goes to show that pursuant to the requisition of Additional Director General of Police, Karnataka Lokayuktha, Bengaluru along with prosecution papers such as FIR, complaint, entrustment mahazar, trap mahazar, statement of witnesses, FSL report, sketch of the place of incident, explanation of accused No.1 and other relevant prosecution papers, they verified and have come to a conclusion that there is prima facie case that accused No.1 and 2 have committed the alleged offences and hence accorded Prosecution Sanction Order.
15 Spl.C.C.No.518/2016
13. In the cross examination of PWs 1 and 2, they denied that they have issued the sanction order without perusing the documents. Therefore, it is clear that the accused Nos 1 and 2 have not disputing the sanction order Exs P1 and P2. The learned counsel for accused Nos 1 and 2 submitted that the sanctioning authority is required to independently apply its mind to the records placed before it and the sanction order must specify that the authority has arrived at subjective satisfaction that the material warrants prosecution. He relied on the decision reported in M.G.Thatte V/s State of Maharashtra reported in 1993 Crl.L.J. Page 2878.
14. In this case, Pws 1 and 2 have categorically deposed that they have verified the documentary evidence furnished by the Karnataka Lokayuktha and thereafter arrived to a conclusion that there is a prima facie case against the accused Nos 1 and 2 and accordingly issued the sanction order Exs P1 and P2 respectively. The accused 16 Spl.C.C.No.518/2016 persons have not questioned the competency of PWs 1 and 2 for issuing the order. There is no material or contra evidence to disprove or discard the evidence of PWs.1 and 2. Under these circumstances, I hold that the prosecution has proved that PWs 1 and 2 are the competent disciplinary authorities who accorded sanction Exs.P1 and P2 respectively which are valid.
15. Under section 7 of Prevention of Corruption Act, 1988, a public servant is said to commit offence if he accepts or obtains or agrees to accept illegal gratification as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions. According to the settled legal position, demand of illegal gratification is sine qua non to constitute the offence under section 7 of the Act. Mere recovery of currency notes itself does not constitute the offence, unless it is proved beyond all reasonable doubt that 17 Spl.C.C.No.518/2016 the accused voluntarily accepted the money knowing it to be bribe.
16. The ingredients of section 13(1)(d) of the Prevention of Corruption Act, 1988 are as follows:
(a) That the accused should have been a public servant;
(b) That he should have used corrupt or illegal means or otherwise abused his position as a public servant;
(c) That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
17. Now, the second point raised for my consideration is whether the accused Nos 1 and 2 have demanded illegal gratification to put up the file for providing permission to complainant for purchase of the land belonging to Gurumurthy and his family members and voluntarily accepted the illegal gratification from complainant through accused No 3.
18 Spl.C.C.No.518/2016
18. In this case, the complainant is reported to be dead and therefore the prosecution in order to prove the guilt of the accused has mainly relied on the evidence of the shadow witness PW4 Chowdappa and trap witness PW5 C. S. Veerabhadraiah and the evidence of PW7 K. Ravishankar, the Investigating Officer.
19. PW4-Chowdappa and PW5-Veerabhadraiah in their evidence before this court deposed that they reported before the Investigating Officer of this case on 20.07.2015 as they were deputed as witnesses on request made by the Investigating Officer. When they reached the Lokayuktha Police Station they were introduced to the complainant who was present there at that time and they were informed about the complaint lodged by him against the accused. It is their evidence that complainant had produced 80 currency notes of Rs. 1000/- denomination and the Investigating Officer entrusted the notes with PW4 to count it and the 19 Spl.C.C.No.518/2016 serial numbers of the notes were typed in a sheet of paper and the complainant, PW4 and PW5 affixed their signature on it and it was marked as Ex. P3. The currency notes were smeared with phenolphthalein powder was kept in the pocket of the complainant. Later sodium carbonate solution was prepared by the Investigating Officer, sample of the said solution was taken in a bottle and sealed it with a metal seal engraved with English letter 'A'. The fingers of PW4 were washed with the sodium carbonate solution so prepared, then the colourless solution turned to pink colour demonstrating that when phenolphthalein powder comes in contact with sodium carbonate solution the colourless solution turns to pink colour. This solution was also taken into a bottle and sealed as above. They further deposed that a CD containing the conversations made by the A1 and A2 with the complainant was reduced to writing on a paper through computer and that was also signed by the complainant, PW4 and PW5. Investigating Officer entrusted 20 Spl.C.C.No.518/2016 the complainant with a voice recorder and a spy camera. Pre-trap mahazar was drawn by the Investigating Officer which is marked as Ex. P5. They all left the Lokayuktha office to the office of the accused persons. The complainant went to the office of A1 and A2 but they were not there hence the trap team went back to the Lokayuktha Police Station. Next day the witnesses and the complainant reached the Police Station and again the same procedure of smearing the currency notes with phenolphthalein powder was done and kept it in the pocket of the complainant. The trap team along with the witnesses and the complainant went to the off ice of the accused persons. PW4 deposes that complainant and PW5 went towards the office of the accused persons while others stood outside watching them secretly. He says that he saw A2 and A3 came out of the office and met the complainant and A3 obtained money form the complainant and went inside the office and then the complainant flashed the pre-arranged signal by rubbing his 21 Spl.C.C.No.518/2016 head with his hand then the trap team and the witnesses rushed towards of the A3. The Investigating Officer caught hold of A3 he was taken inside the office of A1 and A2 and his hands were washed with sodium carbonate solution prepared separately the liquid which was dipped with his right hand turned to pink colour. These were collected in separate bottles, sealed and seized them. The notes were recovered from his bag were seized and the serial numbers of the notes were compared with the serial numbers noted in Ex. P5 and it was found tallying and hence it was sealed in a cover using a metal seal with letter 'A'. The said metal seal was entrusted with PW4 to be produced before court which was produced by him during his evidence. They further depose that the Investigating Officer drew a trap mahazar on which the witnesses also signed. The entire happenings were videographed by the Investigating Officer. The counsel cross-examined both PW4 and PW5 in length and PW4 in his cross-examination page 9, para 13, 22 Spl.C.C.No.518/2016 categorically admitted that he had not seen the complainant giving money to A3. PW5 in his examination-in-chief deposed that he saw A3 receiving money from the complainant but in his cross examination he says that he and PW4 were standing a furlong far from the complainant and hence he could not hear what did the complainant and A3 were talking about. He further says that he saw complainant keeping the money into the bag of A3 which is contradictory to the statement given by PW4 who says that he saw complainant keeping money into the hands of A3. Therefore, from the evidence of PW4 and PW5 it can be seen that they are not able say that whether A3 demanded money are not. The evidence of these witnesses also shows that neither from A1 nor A2 demanded bribe from the complainant. With respect demand there is no other evidence but the complaint filed by the complainant. Complainant is no more and hence therefore, the contents of his (Ex. P16) complaint is to be looked into. In Ex. P16 23 Spl.C.C.No.518/2016 there is nothing to show that A1 demanded money from him, but he says in his complaint that A2 demanded Rs. 2 lakhs for and on behalf of A1 which was scaled down to Rs. 80,000/- later.
20. The entire conversations made by him with A1, A2 and A3 were recorded and produced before this court. The voice samples of A1 and A2 were also taken by the Investigating Officer after they were arrested and the voices were compared by PW6, FSL expert and she ahs given opinion that the voices found in the sample are similar with that of the questioned voices. Ex. P24 is the certificate dated 23-07-2015 as per section 65(B) of Indian Evidence Act produced by one Ravi Kumar, brother of the complainant with respect to the contents of conversations made between the complainant with A1 and A2. The complaint was lodged on 20-07-2015 and this certificate is produced subsequently. The said Ravikumar is cited as CW8 in the witness scheduled appended with the charge sheet but he was not examined 24 Spl.C.C.No.518/2016 before this court. Hence, the certificate is not proved before this court and Ex. P24 cannot be relied upon. There are other electronic evidences which prosecution relies on to prove its case but these are not attached with the certificate contemplated under section 65(B) of the Indian Evidence Act and therefore loses its evidentiary value. The voice comparison also does not accompany with the certificate therefore the entire evidence with respect to voice comparison and deposition of PW6 loses credence and hence has to be ignored. Law is settled with respect to this aspect as per the law laid down by Hon'ble Apex Court in Anvar P. V. v/s P. K. Basheer and others reported in (2014)10 SCC 473 is that a digital evidence should necessarily be produced with a certificate mentioned under section 65-B of the Indian Evidence Act and hence these evidences are inadmissible.
25 Spl.C.C.No.518/2016
21. Sri.D.Ramesh Babu, the learned Public Prosecutor addressed his arguments relying upon the evidence of PWs 3 to 7 contended that their evidence establishes that the accused Nos 1 and 2 demanded the complainant to pay the bribe amount of Rs 2,00,000/- later scaled down to Rs 80,000/- and accepted MO 13 through accused No.3. Relying upon the evidence of PWs 3, 4, 5 and 7 he contended that pre-trap mahazar stands established. Relying upon the evidence of PWs 4, 5 and 7 he contended that seizure of MO 13, tainted currency notes from the possession of the accused No.3 stands proved and since the accused has not placed any material to dislodge the same presumption under section 20 of the Act leans in favour of the prosecution.
22. Heard the arguments of Sri.I.S.Pramod Chandra, the learned Counsel for the accused Nos 1 to 3. It was contended by him that the evidence of PWs 1 to 7 are not convincing to hold that in the matter of extending any official 26 Spl.C.C.No.518/2016 favour, the accused Nos 1 and 2 demanded and accepted MO13 through accused No.3 from complainant. The complainant is no more and therefore the initial burden of demand and acceptance of bribe by the accused persons from the complainant has not proved by the prosecution. Relying upon the cross examination of PWs 4, 5 and 7 he contended that none of them have deposed about the demand of bribe by the accused Nos 1 and 2. He contended that since there is no evidence to attract the alleged demand and acceptance of MO 13 by accused Nos 1 to 3, more over, there is no corroboration in the evidence of Pws 4, 5 and 7 and hence presumption under section 20 of the Act cannot be raised. He has relied upon the decision reported in
i) Krishan chander V/s State of Delhi reported in AIR 2016 Supreme Court page 298.
ii) B.Jayaraj V/s State of A.P reported in 2014 Crl.L.J page 2433 27 Spl.C.C.No.518/2016
iii) P.Satyanarayana Murthy V/s District Inspector of Police and another reported in 2015 Crl.L.J. page 4670
iv) M.G.Thatte V/s State of Maharashtra reported in 1993 Crl.L.J. page 2878
v) Order dated 16.06.2010 made in Crl. A.No.79/2002 by the Hon'ble High Court of Karnataka.
vi) Anvar P.V V/s P.K. Basheer and others reported in 2014 AIR SCW page 5695
23. In this case the complainant is reported to be dead. The evidence of PWs 4 and 5 who are the shadow witness and trap mahazar witness is not corroborated with each other's deposition. The only material available in this case is the recovery of tainted currency notes from the possession of accused No.3. Mere possession of the recovery of the currency notes from the accused No.3 without proof of demand will not bring home the offence 28 Spl.C.C.No.518/2016 under section 7 of P.C.Act. PWs 4 and 5 have not deposed that the accused Nos 1 and 2 have demanded bribe from the complainant. The prosecution has mainly relied that the amount of Rs 80,000/- was seized from the bag of the accused No.3. Therefore, it is the accused No.3 has to explain about the possession of tainted currency notes. It is relevant to state here that presumption under section 20 of the Act can only be in respect of offence under section 7 of the Act and not the offences under section 13(1)(d)(i)(ii) of the Act. It is only on proof acceptance of illegal gratification that presumption can be drawn under section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case, the primary facts on the basis of which the legal presumption under section 20 can be drawn are wholly absent. Mere acceptance of any amount allegedly by way of illegal gratification or recovery 29 Spl.C.C.No.518/2016 thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under sections 7 and 13(1)(d) of P.C.Act. The failure of the prosecution to prove the demand for illegal gratification would be fatal.
24. In this case, the prosecution has tried to establish its case by linking the chain of circumstances. In this regard, the prosecution has examined PW3-Raveendra. Police Head constable, he has deposed with regard to the videographing of the pre-trap mahazar. He has deposed that he saw the complainant removing the notes from the pant pocket and handed over to a person who was standing along with the complainant and complainant flashed the signal by rubbing his head and that was accused No.3. He further deposed with regard to the right-hand wash of accused No.3 in the solution turned to pink colour and seizure of notes from the bag of accused No.3. His evidence is also not helpful to the prosecution to prove the demand 30 Spl.C.C.No.518/2016 and acceptance bribe unless it is corroborated with other cogent evidence. When the main allegation of demand and acceptance of bribe by accused Nos 1 and 2 is lacking, the evidence of PW 6 the Forensic Expert is not helpful to the case of the prosecution.
25. In this case, the defence has examined one Gurumurthy as DW1 and he has deposed with regard to the execution of agreement for sale of two acres of land situated near Gollahalli, Bengaluru in favour of complainant, paying of Rs 13 lakhs as advance sale consideration and when he asked two lakhs rupees as further advance amount, the complainant told him to receive Rs 80,000/- from one Venkatachala. He further deposed that after the death of complainant, he approached the wife of the complainant who asked him to return the amount. In the cross examination he admitted that he had executed the power of attorney in favour of complainant for obtaining documents 31 Spl.C.C.No.518/2016 from government departments. This evidence of DW1 supports to the prosecution case rather than the defence of the accused. But, the main ingredient of demand of bribe to prove the case is lacking in the prosecution evidence.
26. Thus, the prosecution has failed to prove the demand of bribe by the accused from complainant by placing satisfactory oral evidence or documentary evidence. From the scrutiny of entire oral and documentary evidence of the prosecution nothing has been brought out against the accused Nos.1 and 2 and the entire allegation is made only against the accused No.3 as he received the amount on behalf of accused Nos.1 and 2. But there is no document forth coming in this regard to show that accused No.3 has received the amount on behalf of accused Nos 1 and 2 to influence the accused Nos 1 and 2 for helping the complainant in getting permission for purchase of the property of one Gurumurthy and his family members. 32 Spl.C.C.No.518/2016
27. Law is laid down in the decisions relied upon by the learned counsel for the accused that the prosecution has to establish demand and acceptance of tainted currency notes and in the absence of the same presumption under section 20 of the Act cannot be raised. Thus, upon appreciation of the entire oral and documentary evidence on record, I hold that the prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt for the offences with which they are charged. Accordingly, extending the benefit of doubt to the accused Nos 1 to 3, I answer point nos 1 to 3 in the NEGATIVE.
28. Point No 4: In the result, I proceed to pass the following:
ORDER Under section 235(1) Cr.P.C the accused No.1-T.Yathish Kumar and accused No.2- Muniyappa, are acquitted of the offence 33 Spl.C.C.No.518/2016 punishable under section 7 of The Prevention of Corruption Act 1988. The accused Nos 1 and 2 are also acquitted of the offence defined under section 13(1)(d) which is punishable under section 13(2) of The Prevention of Corruption Act 1988. Accused No.3- K.Venkatachala is acquitted of the offence punishable under section 8 of The Prevention of Corruption Act 1988.
The bail bonds and surety bonds of the accused Nos 1 to 3 stand cancelled.
MO 13 cash of Rs 80,000/- is ordered to be confiscated to the State. MO 6, 7, 8, 9, 10, 11, 14 are ordered to be returned to the Superintendent of Police, Karnataka Lokayuktha, Police Wing, City Division, Bengaluru. MOs 1, 2, 3, 4, 5, 5(a), 6(a), 8(a), 9(a), 10(a), 11(a), 12, 13(a) and 14(a) being 34 Spl.C.C.No.518/2016 worthless are ordered to be destroyed. Order regarding the disposal of MOs 1 to 14, 14(a) shall be given into effect after the appeal period is over.
(Typed on my dictation by the Judgment Writer directly on computer, print out signed and then pronounced by me in open Court on this the 9th day of February, 2018) Sd/-
[MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: V.Shankar PW.2: S.M.Shivakumar PW.3: Ravindra.P PW.4: Chowdappa PW.5: C.S.Veerabhadraiah PW 6 Smt.Srividhya PW 7: K.Ravishankar
List of documents marked on behalf of prosecution: 35 Spl.C.C.No.518/2016
Ex.P.1: Sanction order of accused No.1 Ex.P.1(a) : Signature of PW.1 Ex.P.2: Sanction order of accused No.2 Ex.P.2(a) : Signature of PW.2 Ex P3 : Sheet containing the details of currency notes Ex P3 (a) Signature of PW 4 Ex P3 (b) : Signature of PW 5 Ex P4 : Sheet containing the transcription of conversation Ex P4(a) : Signature of PW 4 Ex P4 (b) : Signature of PW 5 Ex P5 : Pre Trap Mahazar Ex P5(a) : Signature of PW 4 Ex P5 (b) : Signature of PW 5 Ex P5 (c) : Signature of PW 7 Ex P 6 : Mahazar drawn after returning to Lokayuktha police station Ex P6(a) : Signature of PW 4 Ex P6 (b) : Signature of PW 5 Ex P6 (c) : Signature of PW 6 Ex P7 : Sheet containing the voice recorder Ex P 7 (a) : Signature of PW 4 Ex P8 : Explanation of accused No.1 Ex P8(a) : Signature of PW 4 Ex P8 (b) : Signature of PW 7 36 Spl.C.C.No.518/2016 Ex P9 : Explanation of accused No.2 Ex P9(a) : Signature of PW 4 Ex P9 (b) : Signature of PW 7 Ex P10 : Explanation of accused No.3 Ex P10(a) : Signature of PW 4 Ex P10 (b) : Signature of PW 7 Ex P 11 : trap mahazar Ex P11(a) : Signature of PW 4 Ex P11(b) : Signature of PW 5 Ex P11 (c) : Signature of PW 7 Ex P 12 : Mahazar drawn for taking voice sample Ex P12(a) : Signature of PW 4 Ex P12(b) : Signature of PW 5 Ex P12(c) : Signature of PW 7 Ex P 13 : F.S.L Report (C.D's) Ex P13(a) : Signature of PW 6 Ex P 14 : Specimen Seal letter Ex P 15: FSL specimen seal letter Ex P 16 : Complaint Ex P 16(a) : Signature of PW 7 Ex P 17 : Attested copies of documents Ex P 18 : Attested copies of complainant Ex P 19 : Sketch Ex P 20 : Report of Deputy Tahasildar 37 Spl.C.C.No.518/2016 Ex P 21 : Specimen Seal letter Ex P 22: Acknowledgment letter Ex P 23: Xerox copy of missed call Ex P 23(a) : Signature of PW 7 Ex P 24 : 65(b) Certificate Ex P 25: Sketch prepared by Engineer Ex P 26 : FSL Report Ex P 27 : Mobile call details Ex P 28 : Service particulars of accused Nos 1 and 2 Ex P 29 : Investigating officer letter dtd 26.10.2015 List of material objects marked on behalf of the prosecution:
MO 1: Bottle containing sample solution Pre-Trap Mahazar MO 2 : bottle containing Hand wash of witness Chowdappa MO 3 : bottle containing right hand wash of accused No.3 MO 4 : Bottle containing left hand wash of accused No.3. MO 5 : Cotton cloth MO 5(a) : Cover MO 6 : C.D voice recorder data MO 6(a) : Cover MO 7 : Metal seal 'A' MO 8 : CD E.M audio recording MO 8 (a) Cover 38 Spl.C.C.No.518/2016 MO 9 : CD AGO-1 Yathish Kumar voice sample MO 9(a) : Cover MO 10 : CD - AGO 2 Muniyappa voice sample MO 10(a) : Cover MO 11: CD - pre trap video recording MO 11(a) : Cover MO 12 : Sample solution (trap) MO 13 : Cash of Rs 80,000/- MO 13(a) : Cover MO 14 : CD - Trap video recordings MO 14(a) : Cover List of witnesses examined on behalf of accused:
D.W.1 : Gurumurthy List of documents marked on behalf of accused:
Nil Sd/-
[MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 39 Spl.C.C.No.518/2016