Bangalore District Court
By Police Inspector vs S/O Ramahanumaiah on 29 November, 2018
IN THE COURT OF THE LXXVI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, CITY CIVIL COURT
UNIT, BENGALURU (CCH77)
Present: Sri Sachin Kaushik R.N.,
B.Sc.LL.M.,
LXXVI Addl.City Civil & Sessions Judge
& Special Judge, City Civil Court,
Bengaluru.
Dated this the 29th day of November 2018
Spl.C.No. 349/2015
The State of Karnataka,
COMPLAINANT By Police Inspector, Karnataka
Lokayuktha Police Wing, City
Division, Bengaluru.
(Rep. by Spl.Public Prosecutor)
vs
Dr.Vishwanath
ACCUSED
S/o Ramahanumaiah
38 years, Urologist
Government Hospital
Jayanagara, Bengaluru.
(By Sri.C.G.Sundar Advocate)
1.Nature of Offence Offences punishable under Sections 7, 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988.
2. Date of Commission 25.07.2015 of offence 2 Spl.C.349/2015
3. Date of First Information Report 16.12.2013
4. Date of arrest 17.12.2013
5.Date of commencement of 28.11.2017 recording of evidence
6. Date of 29.10.2018 closing of evidence
7. Date of pronouncement of 29.11.2018 Judgment Acting under Section 235(1) of Cr.P.C.,
8. Result of the case the accused is acquitted of the offences punishable under sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
J U D G M E N T The case of the prosecution is that, the accused Dr.Vishwanath being Public Servant, who was working as Urologist in Government Hospital, Jayanagar, Bengaluru on 17.12.2013 in his office demanded and accepted illegal gratification of Rs.7,000/, from the complainant for treating him, and has committed offence punishable under Section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
3 Spl.C.349/2015 The Lokayuktha Police, Bengaluru have filed charge sheet against the accused for the alleged offences u/s 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
2. The accused has denied the charges and claimed to be tried.
3. The prosecution has examined in all 8 witnesses and got 31 documents and 14 materials marked.
4. The accused has denied the allegations in his Section 313 Cr.P.C. statement.
5. Heard the learned Spl.P.P. and learned Advocate for accused and perused the written arguments filed by learned Advocate for accused.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 13(1)(d) 4 Spl.C.349/2015 r/w 13(2) of the Prevention of Corruption Act, 1988?
3. What order?
7. The answers to the above points are:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order, for the following:
R E A S O N S
8. Points No.1 and 2: As the Points No.1 and 2 are inter connected, they are taken together for consideration.
9. PW1, Shivakumar complainant has deposed that, he was suffering from Urinary problem since 67 years, prior to lodging of complaint. He had gone to Sanjay Gandhi Hospital, Jayanagar, on 15.11.2012. He met the accused, and the accused admitted him to the hospital on 25.11.2013 for surgery. The accused asked him to pay Rs.12,000/ to Rs.15,000/, and he pleaded difficulty. The accused did not agree for any concession. The nurses of the hospital have taken Rs.300/ from him. He was supposed to undergo surgery on 26.11.2013, but the surgery was not conducted, for the reason that thread was not in stock. The accused told him to take treatment in 5 Spl.C.349/2015 Victoria Hospital. He told the accused that he will get the thread from outside, but the accused did not agree. After discussion, the accused demanded Rs.10,000/ from him and finally the amount was scaled down to Rs.7,000/. He lodged the complaint before the Lokayukta Police, Ex.P1, on 11.12.2013, and gave the Voice Recorder that he had taken from the Lokayukta Police on 10.12.2013, after recording the conversation. He produced Rs.7,000/ before the Investigating Officer. The said notes were smeared with Phenolphthalein powder and placed in his pant pocket. The hand fingers of the witness who kept the currency notes in the pant pocket were washed in the solution and it turned to light pink colour. PW1 identifies the PreTrap Mahazar, Ex.P2. All of them went to Sanjay Gandhi Hospital, and as the accused was not present, they returned back. PW1 further states that, on 16.12.2013, he appeared before Lokayukta Inspector, and PreTrap procedure was followed, and on going to Sanjay Gandhi Hospital, the accused asked for the amount, and he gave the amount to accused, which he received from his right hand and placed it in the file. The accused received the amount in room No.38. He gave preinstructed signal. The Lokayukta Police who came along with the trap team there, disclosed their identity to the accused, and he told the Investigating Officer that the accused has received the amount and kept in the file. The Investigating Officer got the said notes removed from the file and seized the amount. The hand fingers of accused were washed and it turned to pink colour.
6 Spl.C.349/2015 He gave the voice recorder to the Investigating Officer, and the Investigating Officer played the same, and got the voice identified through senior Officer of accused, and drew Trap Mahazar. PW1 also states that the list of currency notes were also prepared when he had given the said amount of Rs.7,000/, and the police recovered the file pertaining to PW1 from the accused. His S.164 Cr.P.C. statement is marked as Ex.P31.
10. PW1 in the crossexamination in paragraph Nos.15, 16 and 17 states the dates of obtaining voice recorder, return from trap as accused was not available and date of trap as 11.12.2013, 12.12.2013 and 13.12.2013 while in chiefexamination at paragraph No.7, he states date of trap as 16.12.2013. Ex.P.6 - trap panchanama is dated 17.12.2013, while Ex.P.5 trap return panchanama is dated 16.12.2013. At paragraph No.20, PW1 states that he has not told the I.O. that accused received amount from him after demand and kept it in the file. This goes against prosecution case.
11. PW2, Sri.Udayakumar S.Kallimani, Librarian, Department of Youth Service and Sports, has deposed that, on 16.12.2013, he went to Lokayukta Police station to act as a witness in the trap, and CW3, Harisingh Rathod, who is his colleague, also had come there, and they met CW15, Lokayukta Inspector. The contents of the complaint were made known to him. PW1 produced Rs.7,000/ containing one 7 Spl.C.349/2015 note of Rs.1,000/ and 12 notes of Rs.500/each. The list of currency notes, Ex.P3 is identified by PW2. The police applied Phenolphthalein powder to the said notes and got it placed in the right side pant pocket of PW1, through CW3, Harisingh Rathod. The hand fingers of CW3 were washed in the solution, and it turned to pink colour. The voice recorder was played in their presence, and burnt to CD and transcribed. The transcription is marked as Ex.P4. Digital Voice Recorder and Spy camera were given to PW1 with instruction to switch it on while approaching the accused to give bait money. PW1 was instructed to give money to accused only on demand and after acceptance, give signal by wiping his hair. He was instructed to follow the complainant and to observe what transpired. The Entrustment Mahazar was drawn as per Ex.P2. PW2 further states that, on 16.12.2013, at about 4.30 p.m., all of them went to Sanjay Gandhi Hospital, Jayanagar, Bengaluru, and at about 5.00 p.m., he and PW1 went inside Sanjay Gandhi Hospital. They went to room No.38. The Doctor was not available. They returned and mahazar was drawn as per Ex.P5. On 17.12.2013, they again went to Hospital after completing pretrap procedure. At about 10.10 a.m., the Doctor was not available. They waited for accused. At about 2.45 p.m., PW1 met the accused in room No.38. He saw PW1 removing the currency notes and giving to the Doctor. The Doctor/accused received the amount, and PW1 came outside the room and gave pre instructed signal. The Lokayukta team entered room No.38, and 8 Spl.C.349/2015 Lokayukta Inspector showed his identity card and hands of the accused were washed in solution and it turned to pink colour. He removed the tainted currency notes from the file, counted it and after tallying with the list, found to be correct. The Head of Department was secured and the file pertaining to PW1 was recovered and Trap Mahazar, Ex.P6 was drawn.
12. PW2, shadow witness in Page No.5, paragraph No.9, 15th line has said that he did not overhear the conversation between PW1 and accused. In the crossexamination, paragraph 14, 6 th line, he has said that the distance between him and PW1 was about 45 meters. PW2 also denies that Digital Voice Recorder and spy camera was played before him. Hence, his evidence is also not much useful to the prosecution.
13. PW3, Sri.Harisingh Rathod, Superintendent, Department of Youth Service & Sports, has deposed that, in the month of December, 2013, he too went to Lokayukta Police station along with PW2, and he has also told about the entire pretrap procedure, and that the accused was not present and they returned, and on the next day at 11.00 a.m. he went to the Lokayukta Police station, and at about 3.00 p.m., PW1 and 2 went to the Doctor's room, and soon after PW1 gave preinstructed signal, the tainted currency notes were recovered from the file which was lying on the table of the accused. The hand fingers 9 Spl.C.349/2015 of the accused were washed in solution and it turned to pink colour. The documents were seized. The accused was arrested. The Digital Voice Recorder given to the complainant at the time of trap was played, converted to CD and transcribed. PW3 identifies the transcription, Ex.P4, pertaining to the conversation prior to the complaint.
14. PW3 in his crossexamination by Learned Spl.P.P denies that the digital voice recorder given during trap was played before him. At paragraph No.11, in crossexamination by learned Advocate for accused, PW3 states that he has not seen the washing of hand fingers of accused. As such, this evidence too does not help the prosecution.
15. PW4, Srividya, Assistant Director Incharge, FSL, Bengaluru, has deposed that, on 19.5.2014, their office received 3 CDs, wherein 1 CD contained specimen voice of accused, She examined them and found the speeches in the said 2 CDs similar to the sample speeches recorded in the CD and she has given report as per Ex.P8.
16. At paragraph 11 and 13, PW4 has stated that the original mobile phone, chip, 3 devices were not sent for examination. Hence, in the absence of the same, the said CDs MO7, 11 and 13 and transcription, Ex.P.4 & 21 cannot be relied and does not stand proved.
10 Spl.C.349/2015
17. PW5, Smt.H.N.Vanajakshamma, working as Accounts Officer then, has deposed that, she has furnished the service particulars of accused with covering letter, Ex.P10 to P13.
18. PW6, Dr.Saroja.B.G., working as Medical Superintendent in General Hospial, Jayanagar, Bengaluru, then, has deposed that, she has given document pertaining to PW1, Ex.P14, Attendance sheet, and identified the voice of accused, as per Ex.P15.
19. Evidence of PW6 shows that PW1 was treated by accused and he was referred to higher hospital and was not readmitted. PW6 does not speak about offence.
20. PW7, Dr.Ravishankar Katkar, working as Chemical Examiner, then, has deposed that, they received 6 articles for examination, and on examination, he found that the said articles contained phenolphthalein traces, and has given report as per Ex.P16. The sample seal is marked as Ex.P17.
21. Nothing useful to defence is derived in crossexamination of PW7.
11 Spl.C.349/2015
22. PW8, Shivashankar N.G., working as Police Inspector in Karnataka Lokayukta then, has deposed that, on 16.12.2013, he received written information from PW1, Ex.P1 and registered the same and drew FIR, Ex.P18. He also received Rs.7,000/ from PW1 containing 1 note of Rs.1,000/ and 12 notes of Rs.500/ each. The same is marked as MO6. He prepared list of currency notes, Ex.P3. PW8 identifies Digital Voice Recorder given by PW1 along with the complaint. He burnt the conversation into CD and transcribed. PW8 identifies the transcription, Ex.P4 and the CD, MO7. He got the currency notes, MO6 smeared with Phenolphthalein powder on both sides and got the same put into right side pant pocket of PW1. He also got it verified. PW1 had no other notes. He got the hands of PW3 washed and the same turned to pink colour. PW8 identifies MO1 & 2. He instructed PW2 to act as shadow witness and gave instructions to PW1 to make payment only on demand and after acceptance, give signal by wiping his head. PreTrap proceedings were videographed and the CD is marked as MO8. PreTrap Mahazar is marked as Ex.P2. On 16.12.2013, at about 4.25 p.m., all of them left to Sanjay Gandhi Hospital, Jayanagar. PW1 & 2 were instructed to meet accused and he also gave voice recorder to PW1. PW1 returned and informed that the accused has left. Mahazar was drawn as per Ex.P5. On 17.12.2013, the witnesses came at 8.30 a.m. and he followed the pretrap procedure. At 10.10 a.m., all of them reached Sanjay Gandhi Hospital, Jayanagar. The accused came and 12 Spl.C.349/2015 went and came again at 3.15 p.m. After 10 minutes, PW1 came outside and gave signal. All of them went to the spot i.e. room No.38 and he showed his identity card to the accused and took details of the accused. PW1 told that accused has received the bribe amount and kept in a book He got the hands of accused washed, and the same turned to light pink colour. PW8 identifies MO3, 4,5, 9 & 10. He got MO6 removed from the book through PW2, got it verified and found to be the same. He prepared rough sketch, Ex.P19. The Biometric attendance of accused is marked as Ex.P14. The documents pertaining to PW1 were seized and got certified through PW6. The said documents are marked as Ex.P20. The contents of the voice recorder were burnt to CD and transcribed. PW8 identifies CD, MO11 and transcription, Ex.P21. He called the senior Officer of PW1 for identifying the voice of accused. The said proceedings were videographed and the CD is marked as MO12. He gave the seal to PW2 and received the acknowledgment. The acknowledgment is marked as Ex.P22. The explanation of the accused is at Ex.P23., mahazar, Ex.P6, service details of the accused, Ex.P24, sketch prepared by PWD, Ex.P18, Chemical Examiner's report & seal, Ex.P16 & 17. PW8 further states that on 06.05.2014, he secured two panchas and took the sample voice of accused. The said Panchanama is marked as Ex.P25, CD of the specimen voice, MO13, and the videograph of the proceedings, MO14. PW8 identifies the FSL Report, Ex.P27, acknowledgment, Ex.P28. Certificate U/s 65B, Ex.P29, 13 Spl.C.349/2015 Sanction, Ex.P7 and Detail Report, Ex.P30. He got the statement of PW1 recorded before the Magistrate and filed charge sheet.
23. PW8, IO has not sent the source of CD i.e. mobile, voice recorder, Button camera to the FSL. He has not conducted Panchanama at the spot.
24. Learned Advocate for accused has relied upon following 19 decisions:
i) 2015 SCC Online SC 814
ii) 1980 (Supp) SCC 684
iii) (1972) 3 SCC 652
iv) (1979) 4 SCC 725
v) 2015 AIR SCW 951
vi) (1974) 3 SCC 595
vii) 1983(1) Crimes 214
viii) (1979) 4 SCC 526
ix) (2013) 6 SCC 450
x) 1970(2) (Cri.) 563
xi) 2016(1) KCCR 815
xii) 1 (2001) CCR 343 (SC)
xiii) 2006 (3) KCCR 1422
xiv) 2016(3) KCCR 1851
xv) 2012(1) KCCR 414
14 Spl.C.349/2015
xvi) 2000 SCC (Cri) 878
xvii) AIR 2017 SC 3382
xviii) (2015) 1 SCC (Cri.) 24
xix) 2004 (2) KCCR 1233
The ratio laid down in these decisions are taken into consideration in appreciation of evidence in this case.
25. The Sanction, Ex.P7, is marked with consent on 2.4.2018, and the court finds the same running into 5 pages, reasoned, legal and valid.
26. From these evidences, it can be seen that PW1, complainant has said that he has not told I.O., that accused demanded and accepted the amount, MO6. PW2, shadow witness, has said that he has not overheard the conversation between PW1 and accused and that he was about 5 mtrs far from PW1. PW3 says he did not see the hands of accused being washed in solution. PW2 and PW3 also say that Digital Voice Recorder, Button camera was not played before them. PW8, IO has not sent the source of CD to F.S.L., and hence the same and transcriptions don't stand proved. The explanation, Ex.P.23 also says that he did not accept. As such, this court has came to the conclusion that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. The benefit of doubt is given to accused and Points No.1 and 2 are answered in the Negative.
15 Spl.C.349/2015
27. Point No.3: For the aforesaid reasons, this Court proceeds to pass the following:
O R D E R Acting under section 235(1) of Cr.P.C., the accused is acquitted of the offences punishable under Sections 7, 13 (1) (d) R/w 13 (2) of Prevention of Corruption Act, 1988. Bail bond of the accused stand cancelled.
MO1 to 14 shall be disposed as per law, after the appeal period.
(Dictated to the Judgment Writer, the transcription thereof corrected, and then pronounced by me in the open court on this the 29th day of November 2018).
(Sachin Kaushik R.N) LXXVI Addl. City Civil & Sessions Judge & Special Judge, City Civil Court, Bengaluru. (CCH77) 16 Spl.C.349/2015 A N N E X U R E List of witnesses examined on behalf of the prosecution:
PW1 Shivakumar PW2 Udaykumar.S. Kallimani PW3 Harisingh Rathod PW4 C.Srividya PW5 H.N.Vanajakshamma PW6 Dr.Saroja.B.N. PW7 Dr.Ravishankar Kotkar PW8 Shivashankar N.G.
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW1
Ex.P.1(b) Signature of PW8
Ex.P.2 Pre tap mahazar
Ex.P.2(a) Signature of PW1
Ex.P.2(b) Signature of PW2
Ex.P.2(c) Signature of PW8
Ex.P.3 Currency notes sheet
Ex.P.3(a) Signature of PW1
Ex.P.4 Transcription
Ex.P.4(a) Signature of PW1
Ex.P.4(b) Signature of PW3
Ex.P.4(c) Signature of PW8
Ex.P.5 Mahazar
Ex.P.5(a) Signature of PW2
Ex.P.5(b) Signature of PW8
Ex.P.6 Trap mahazar
Ex.P.6(a) Signature of PW2
Ex.P.6(b) Signature of PW8
Ex.P.7 Sanction order by consent
17 Spl.C.349/2015
Ex.P.8 Report FSL
Ex.P.8(a) Signature of PW4
Ex.P.9 Specimen seal impression of the
laboratory
Ex.P.10 to 13 Covering letter, service details along
with salary details and service
particulars
Ex.P.11 to 13(a) Signature of PW5
Ex.P.14 Monthly status report of accused
Ex.P.15 Letter dated 17.12.2013
Ex.P.16 Chemical test report
Ex.P.16(a) Signature of PW7
Ex.P.17 Sample seal
Ex.P.18 FIR
Ex.P.18(a) Signature of PW8
Ex.P.19 Rough sketch at spot
Ex.P.20 Documents pertaining
Ex.P.21 Transcribed conversation
Ex.P.22 Acknowledgment
Ex.P.23 Explanation of accused
Ex.P.24 Service details of accused
Ex.P.25 Mahazar (Voice samples)
Ex.P.25(a) Signature of PW8
Ex.P.26 Acknowledgment
Ex.P.27 Sample seal
Ex.P.28 Acknowledgment
Ex.P.29 Certificate u/S 65(B0 of Indian
Evidence Act
Ex.P.29(a) Signature of PW8
Ex.P.30 Report
Ex.P.30(a) Signature of PW8
Ex.P.31 Statement
Ex.P.31(a) Signature of PW8
18 Spl.C.349/2015
List of material objects marked on behalf of the prosecution:
MO.1 to 5 Phenolphthalein, both the right and left Article 2 and 4 hand finger washes MO.6 Currency notes Article 1 1000x1=1000/ 500x12=6000/ Total Rs.7,000/ MO.7 CD transcription MO.8 CD entire pretrap proceedings videographed MO.9 Remaining part of the solution MO.10 Remaining part of the solution MO.11 CD transcribed converted MO.12 CD entire proceedings videographed MO.13 CD voice sample recording MO.14 CD proceedings videographed List of witnesses examined on behalf of the accused:
Nil List of documents marked on behalf of the accused:
Nil (Sachin Kaushik R.N) LXXVI Addl. City Civil & Sessions Judge & Special Judge, City Civil Court, Bengaluru (CCH77)