Bangalore District Court
State Of Karnataka vs B.Omkarappa S/O. N.Basappa on 10 December, 2021
1
Spl.C.C. No.84/2015
KABC010042392015
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS COURT AND SPECIAL
COURT UNDER PREVENTION OF CORRUPTION
ACT 1988, AT BENGALURU CITY (CCH-78)
DATED THIS THE 10 th DAY OF DECEMBER 2021
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE
&SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No.84/2015
COMPLAINANT: State of Karnataka
By Karnataka Lokayuktha Police,
Bengaluru.
(Rep. by Mrs.Suneetha,
Public Prosecutor)
/VS/
ACCUSED: 1. B.Omkarappa S/o. N.Basappa,
38 years, PC 222,
KSRP 4th Battalion,
Koramangala, Bengaluru.
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Spl.C.C. No.84/2015
Residing at No.41, 2nd Main,
Janatha Colony, Jakkasandra,
Bengaluru, Native of
Ballari Camp, Beeruru Post,
Kadur Taluk,
Chikmagalur District.
2. Manjunath.P,
S/o. Puttaiah, 25 years,
Residing at No.2/1, 24th Main,
Parangipalya Main Road,
HSR Extension 6th Sector,
Bengaluru-103
3. Puttaiah,
S/o. Venkataramaiah,
60 years, Residing at No.2/1,
24th Main, Parangipalya Main
Road, HSR Extension 6th Sector,
Bengaluru-103
(Rep by Sri.V.N.N., Adv.for
Accused No.1, Sri.S.T.B., Adv.
for Accused Nos.2 & 3)
TABULATION OF EVENTS
01. Date of commission of offence : 19-04-2013
02. Date of report of offences to
the Police Station (FIR date) : 19-04-2013
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Spl.C.C. No.84/2015
03. Date of arrest of accused : A1 arrested
on 22-04-2013
A2 & 3 not arrested.
04. Date of release of accused
from JC : A1 released
on 02-05-2013
05. Name of the complainant : Lokayuktha
Police.
06. Nature of offence complained : U/S.Sec.7,8,12,
13(1)(d) R/w
Sec.13(2) of
Prevention of
Corruption Act
1988 coupled
with Secs.419,
384, 506, 203 &
120B of IPC.
07. Date of submission of
charge sheet : 10-02-2015
08. Date of commencement of
recording of evidence : 02-05-2017
09. Date of closing of evidence : 22-11-2018
10. Date of judgment : 10-12-2021
11. Opinion of the Judge in
respect of the offences. : Accused Nos.1 to
3 are acquitted.
*****
4 Spl.C.C. No.84/2015 JU DG ME N T
1. The Police Inspector, Karnataka Lokayuktha, Bengaluru City Division has filed the charge sheet against the accused Nos.1 to 3 for the offences punishable under Secs. 7, 8, 12, 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 connected with Secs.419, 384, 506, 203, and 120B of the Indian Penal Code.
2. The brief facts of the prosecution case being that:
(a) The accused No.1 being a Public servant working as the Police Constable with KSRP, Koramangala, Bengaluru had demanded illegal gratification of Rs.50 lakhs from the complainant for doing her a favour in respect of a case registered against the CW.1 with Halasuru and Wilson Garden Police Stations and by promising 5 Spl.C.C. No.84/2015 that he would also use his influence to favour her, in that regard, subsequently scaled down his demand to Rs.5 lakhs and informed the complainant to pay that amount by crediting the same to the bank account of the 2 nd accused and thereafter, informed the complainant to pay that amount by way of cheque by issuing the same in the name of one Smt.Roopashree by projecting that she is the daughter of the 3 rd accused and received the said cheque from the complainant through the 3rd accused on 22nd April 2013 at about 3.10 p.m. at Adyar Anand Bhabvan Hotel, HSR Layout, Bengaluru.
(b) It is the further case of the prosecution that both the 2nd and 3rd accused abated the 1st accused in demanding the illegal gratification and they were part of hatching the said criminal 6 Spl.C.C. No.84/2015 conspiracy and thereby they have committed the above said offices.
3. After securing the presence of the accused Nos.1 to 3 before this Court, they were duly enlarged on regular bail. As per mandatory compliance, prosecution papers were supplied to them and even though, initially they prayed time to address their arguments, seeking for discharge before framing charges against them, they in all submitted that they have no any arguments of discharge and prayed this court to frame charges against them. Initially the PW-10 has filed charge sheet against accused Nos. 1 to 3 under Secs.7,8,12,13(1)(d) r/w 13(2) of P.C.Act 1988 with Secs.120(B),203,419,506 and 384 of the IPC. But this court on 30-3- 2017, by considering the materials on record 7 Spl.C.C. No.84/2015 found prima-facie materials to frame charges against accused No.1 for the offences u/Sec.7,13(1)(d) r/w 13(2)of the P.C.Act 1988, and Sec.419 and 120(B) of the IPC. So far as the 2 nd accused for the offence u/s 12 of the P.C.Act 1988 Sec.120(B) of the IPC. Lastly, 3 rd accused is concerned offences punishable u/s 12 of the P.C.Act 1988 and Secs.203 and 120(b) of the IPC only. Rest of the sections under those two acts have not been considered and consequently they will not sustain for consideration by this court. So, as there was a prima-facie materials in this regard, this Court duly framed charges against them in their known language. The accused Nos.1 to 3 having understood the same, pleaded not guilty and claimed to be tried. 8
Spl.C.C. No.84/2015
4. In order to bring home the guilt of the accused, the prosecution in all has examined PWs.1 to 11 and exhibits at Ex.P.1 to P.41 came to be marked. MOs. No.1 to 14 got identified. On the other hand, as there was incriminating evidence found against all the accused, statements as contemplated under Sec.313 of Cr.P.C. came to be recorded. The incriminating evidence that stood against each of the accused were read over. These respective accused denied those incriminating evidence standing against them and chose not to lead any defence evidence. But, at the end of respective statement under Sec.313, they have furnished their written explanations/statements.
5. Heard the arguments.
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6. During the course of arguments, all the three accused through their respective counsel submitted written synopsis and citations. I have gone through them carefully in detail.
7. The fresh points that crop up for my consideration are as follows:
1) Whether the prosecution is able to convince and prove before this Court that they had obtained valid sanction to prosecute the 1 st accused ?
2). Whether the prosecution further proves beyond all reasonable doubt that the 1 st accused when being a public servant working at the KSRP as a Police Constable-cum-Driver at Koramangala, Bengaluru on OOD as a driver of SCRB, Bangalore, demanded illegal gratification of Rs.
50 lakhs from the complainant for extending an official favour in respect of a case registered against her at Halasoor and Wilson Garden Police Stations and later on scaling down his demand, demanded less 10 Spl.C.C. No.84/2015 illegal gratification of Rs. 5 lakhs and informed the CW.1 to pay that amount by crediting the same to the bank account of the 2 nd accused and later informed CW.1 to pay an amount Rs.5 lakhs by way of issuing another cheque in favour of one Smt.Roopashree said to be the daughter of 3rd accused and on 22- 04-2013 at about 3.10 PM at the Adyar Anand Bhavan Hotel, HSR Layout, Bengaluru, the 3 rd accused was caught accepting the illegal gratification cheque on behalf of the 1 st accused from the complainant, thereby has committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988?
3) Whether the prosecution further proves that in connection with the above, at the aforesaid time, date and place, this accused having demanded and accepted an illegal gratification of Rs. 5 lakhs from the complainant by way of cheque through the 3 rd accused against the public interest, committed criminal misconduct which has attracted punishment under Sec.13(1)(d) r/w Sec.13(2) of the Prevention of 11 Spl.C.C. No.84/2015 Corruption Act, 1988?
4) Whether the prosecution further proves beyond all reasonable doubt that in continuation of the above, at the above said date, time and place, the 1 st accused representing that he is the police official attached to the CCB and SCRB, Bengaluru, in order to extract the money from CW.1, thereby cheated her by demanding and accepting the illegal gratification, committed an offence punishable under Sec.419 of the Indian Penal Code?
5) In continuation of the above, whether the prosecution further proves that the 2 nd accused and 3 rd accused abated the 1 st accused for demanding and accepting the illegal gratification from the CW.1 by providing 2 nd accused and one Smt.Roopasri's bank account details and email particulars, thereby accused Nos.2 and 3 have also committed offence punishable under Sec.12 of the Prevention of Corruption Act, 1988?
6) In continuation of the above, 12 Spl.C.C. No.84/2015 whether the prosecution further proves that all the accused persons No.1 to 3 have demanded and accepted the illegal gratification from CW.1 wherein they hatched a criminal conspiracy by joining hands with each other, whereby, they have committed an offence punishable under Sec.120B of the Indian Penal Code?
7) In continuation to the above, whether the prosecution further proves that the 3 rd accused knowing the very fact that the said cheque for Rs. 5 lakhs received by him from the accused was towards an illegal gratification intentionally gave false information that he has received the cheque for doing painting work of the house of the complainant, thereby committed an offence punishable under Sec.203 of IPC?
8). What order?
8. After carefully going through the materials available on record and also by considering the facts and circumstances of the case, keeping in 13 Spl.C.C. No.84/2015 mind the requirements of law and also the well established principles, on thorough appreciation of available oral and documentary evidence, my findings to the above points are as under:
POINT NO.1 : Partly in the affirmative.
POINT NOs.2 to 7: In the negative.
POINT NO.8 : As per my final order for the following:
REASONS
9. POINT NO.1: As it is the serious allegation made by the prosecution that the 1st accused by name B.Omkarappa, S/o N.Basappa was working as a Police Constable with K.S.R.P., 4th Battalion, Koramangala, Bengaluru was on OOD deputed to the SCRB, in that capacity, he has committed criminal wrong. As the prosecution has invoked Secs.7, 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988, it is incumbent upon the 14 Spl.C.C. No.84/2015 prosecuting and investigating authority to obtain necessary sanction in this regard from the competent authority. In this regard, Ex.P.1 is placed by PW. 1, which is the sanction order granted by the said witness. On close evaluation of the evidence tendered by PW. 1, it has sent mixed signals. In his examination-in-chief that witness by name F.B.Revannanavar, S/o Basappa Revannanavar deposes that, who at the relevant point of time was the Commandant in the 4th Battalion, KSRP, Koramangala, Bengaluru. According to this witness, he receives a letter from the ADGP, Lokayuktha with other annexures on 02-09-2014 and he was asked to submit his order in respect of according sanction to prosecute the 1st accused herein. This gentleman makes it clear in his evidence that along with the requisition, he received copies of 15 Spl.C.C. No.84/2015 FIR, pre-trap mahazar, trap mahazar, chemical analysis report, panchanama, explanation given by the accused No.1 and final investigation report in this case. Now, as the PW. 1 claims to be the appointing authority as well as vested with powers to remove the said official, 1 st accused, he claims that he was empowered to issue Ex.P. 1. Here the concern of the Court is that it is not only according Ex.P. 1 for the IO to launch prosecution and to hold investigation, but in reality whether the complaint given by PW. 3 which is at Ex.P. 20 is really with any substance or not. It is well established principle that to launch a prosecution under written complaint against any public servant, it is not only the police who registers the said complaint and lodges FIR, even the sanctioning authority must be careful and convinced to first form an opinion 16 Spl.C.C. No.84/2015 as to whether there are any prima-facie materials in that regard to register the case and accord sanction.
10. It is the so called claim and case of the prosecution that the 1st accused demanded for illegal gratification, firstly, in a sum of Rs. 50 lakhs, then it was scaled down to Rs. 5 lakhs, then he settles his claim for Rs. 1 lakh and so forth. The CW.1/ PW. 3 is none other than the complainant by name Mrs.Kathyayini Shetty, W/o Late Ramakrishna Shetty and she claims that she was running a company in the name and style of M/s.Comfort Homes Pvt.Ltd., Bengaluru and in the year 2010, she had taken property of BMTC situated at White Field on a monthly rent of Rs. 17,00,000/- and paid a sum of Rs. 1,00,00,000/- as advance to the said 17 Spl.C.C. No.84/2015 authority. I am referring to these details, because only when we go through the contents of Ex.P. 20 line by line, we will be in a position to understand whether Ex.P. 1 accorded by PW. 1 is with any meaning or not. According to PW. 3, in her evidence, she deposes that on account of her personal problems, she was unable to run that Mall smoothly, so in the year 2012 she thought of disposing of that property. At that juncture, she came across a person by name Srinivas Raju who agreed to take over that company's share and it was mutually agreed that the total value of that property/Mall shall be Rs. 11 crores. On the day of execution of the said agreement between two, Mr.Srinivas Raju advanced a sum of Rs. 2.75 Crores and issued three cheques for the balance amount.
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11. It is the definite stand of PW. 3 that when she tendered those three cheques for encashment, they were returned dishonoured for want of sufficient funds in the bank account of Mr.Srinivas Raju. According to this lady, in this regard, she came to know that on 18th of March 2012, this Srinivas Raju had filed a complaint against PW. 3 before the Halasoor Police Station. On 30th of March 2012, when she was about to visit that police station to file a counter complaint against Srinivas Raju, at that time, about 8 police constables came there in 2-3 cars and surrounded PW. 3 and forceably taken her to the Halasoor Police Station. In that police station, according to PW. 3, Srinivas Raju insisted through the said police that she must return back the three cheques to him and when PW. 3 refused to return those cheques, she was 19 Spl.C.C. No.84/2015 made to sit in the station till 8.30 PM on that day.
12. So, the relevancy of the evidence of PW. 3 so far as point No.1 for consideration starts now. According to PW. 3, on that night one Mr.Omkarappa who is none other than the accused No.1, came to her house through PW. 3 car driver Rakesh. This 1st accused tells PW. 3 that he can bail her out and also help her in that financial situation and he claims to have high influence in the police circle. When PW. 3 asked this Omkarappa/1st accused as to what he expects, for that it was demanded by the 1st accused that he wants Rs. 50 lakhs for settling the her disputes. Likewise, when the 1st accused put forth his demand for Rs. 50 lakhs for settling the matter of PW. 3, she claims to have told him 20 Spl.C.C. No.84/2015 that as the said matter is in civil in nature, she will approach the Court of law. According to PW. 3, on 20-03-2013 she gives a sum of Rs. 50 lakhs to Omkarappa. It is also the say of PW. 3 that she gave that amount to Omkarappa, because she was scarred about him, then she appears before the Lokayuktha police on 19-04- 2013 and gives Ex.P. 20. So, this is the first set of material coming from the mouth of PW. 3 to launch this prosecution against the 1st accused.
13. Secondly, coming to the contents of Ex.P. 20, which is the root cause for the present prosecution. The contents of this document speaks of many things, but the core issue which this Court wants, that is in respect of demand for bribe, seems to be surprisingly missing. In this Ex.P. 20, she claims that she was harassed by 21 Spl.C.C. No.84/2015 many police, but amongst them is the first accused. According to this lady/complainant, the first accused approaches her claiming that he would settle her case with Srinivas Raju for an amount of Rs. 11 Crores. Further, according to this PW. 3, when she refused to pay any amount as bribe to the 1st accused, again the 1st accused calls her over phone and demands for bribe. But, ultimately, on 10-04-2013 at about 9.30 AM when PW. 3 had been to her Advocate's office at Wilson Garden, they were surrounded by 3-4 policemen, one SI, two lady constables and she was taken forceably in a car to the Halasoor Police Station without showing any warrant. According to the complaint, she was harassed through out and along with PW. 3, her daughter was also present who was also harassed by the police. There is a reference in Ex.P. 20 that one 22 Spl.C.C. No.84/2015 Mr.Venkat Rao had filed a case against this lady in O.S.No.25385/2013, which is pending. According to PW-3 this first accused is supposed to have advised Srinivas Raju to file a criminal complaint against PW. 3 in Mahadevapura police station. Lastly, according to this PW. 3, when the 1st accused demanded for bribe of Rs. 50 lakhs when she refused to part the same, he started harassing, then he scaled down his demand to Rs. 5 lakhs and then ultimately to Rs. One lakh. Lastly, she approached the Karnataka Lokayuktha, City Division, Bengaluru and then Ex.P. 20 got given.
14. So, the point for consideration is whether the PW. 1 in the capacity of Commandant, KSRP, 4 th Battalion, Koramangala, Bengaluru was justified in issuing Ex.P. 1. It is also well known principle 23 Spl.C.C. No.84/2015 and the law expects that there shall be no mechanical application of mind in according permission or issuance of Ex.P. 1. So the proper application of mind to the facts and allegations, include the role of the alleged public servant which shall be detrimental to the functioning and also must be in a position to show that, that amounted to criminal misconduct.
15. It is not in dispute that the 1st accused was a Geep Driver with KSRP, 4th Battalion, Koramangala, Bengaluru and it is also an admitted fact that his services was taken by the Police Department, SCRB, on OOD basis at the time of Ex.P. 20. The 1st accused was serving as a Driver on temporary basis in SCRB, Bengaluru. So, the next question would be what was that pending work PW. 3 had with this 1 st accused. 24
Spl.C.C. No.84/2015 Ultimately, when we cull out both oral and documentary evidence of PW. 3 and Ex.P. 20, this lady had some criminal and civil cases against one Srinivas Raju and there was also a civil case filed by one Venkat Rao. These litigations were in respect of sale of her shares in a Mall situated at White Field to Srinivas Raju, 3 cheques issued by him which were subsequently bounced and also another partition suit which is faced by PW. 3 and her daughter. Now, what PW. 1 ought to have looked into is, whether Ex.P. 20 or documents, which are at Ex.P. 2 to P.7 did show the fact that whether this accused No.1 was empowered to carry out any pending work by abusing his official capacity to favour PW. 3. Admittedly, it is the evidence of PW. 3 that first accused approached her through her Driver one Rakesh and claims that he could settle her 25 Spl.C.C. No.84/2015 matters with both Halasoor and Wilson Garden police stations. So, what PW. 1 has not applied his mind is to the fact that what were those pending matters and whether the 1st accused was competent to handle them or not. So, it is a matter of aghast that if PW. 1 were to believe that the 1st accused can abuse his office and use his influence to settle all the civil and criminal matters pending against PW. 3.
16. Coming to the core issue on hand, which is in respect of pre-trap panchanama, then trap panchanama, they laying trap, then catching the accused Nos.2 and 3, lastly arresting the 1 st accused on the ground that the 3rd accused has received a cheque for Rs. 1,00,000/- on behalf of the 1st accused and even the 2nd and 3rd accused also abated criminal conspiracy this allegation 26 Spl.C.C. No.84/2015 rather sounds hard to believe. Now, the cheque which the 3rd accused receives from PW. 3 at Adyar Anand Bhabvan Hotel, HSR Layout, Bengaluru, claimed by PW. 3 as the negotiable instrument paid towards illegal gratification. What this PW. 3 has not made it clear as to what was her pending work with the 1 st accused. So, if PW. 3 claims that since the 1st accused can settle her pending work, then the next question would be whether the Geep Driver can be vested with so much of power to settle both civil and criminal cases. So, according to me, this aspect is not spoken by PW. 1 in his evidence. In fact in his cross-examination, there is an admission given by this witness, which is extracted as under:
"It is true that as he was a jeep driver he was not having any powers to deal with the official work."27
Spl.C.C. No.84/2015
17. This is what is required to be looked into by the said officer prior to issuance of Ex.P. 1. So, this Court finds that this PW. 1 has failed to draw this thin line of demarcation to show before the Court that this 1st accused in his official capacity abused his official powers to do favour to PW. 3 when her pending work was with this person. So, this element is not at all found. Secondly, it is the definite stand of PW. 3 that there was an admission for bribe. In this regard, she depends upon the CD conversations. But, these materials were not given to PW. 1 to consider before issuance of Ex.P. 1. But, admission of PW. 1 given in this regard is extracted as under:
"It is true that conversation CD was not sent with the papers for my scrutiny. At the time of this incident he was working as a 28 Spl.C.C. No.84/2015 driver in 4th Battalion, KSRP, Bangalore but he was sent on OOD to SCRB, however I was his drawing officer.
18. So, here the PW. 1 has made a mistake in not applying his mind. Even when the contents of pre-trap mahazar at Ex.P. 4 and mahazar at Ex.P. 5 were gone through, I fail to concur with the opinion of PW. 1 found in Ex.P. 1 as to how can the 1st accused be indited in this case. It is the case of PW. 3 that she issued Ex.P. 6 to remit the said sum to the Axis bank, R.T. Nagar branch of the 2nd accused. This 2nd accused is none other than the son of the 3rd accused. So, it is the claim of PW. 3 and PW-11 in this case that this 1st accused changed the location of accepting the bribe i.e. firstly he calls PW. 3 to come to the City Central Library, Cubbon Park, Bengaluru, then to the Coffee Day shop at Chinnaswamy 29 Spl.C.C. No.84/2015 Stadium, Bengaluru, then to the Forum Mall, Bengaluru, finally at Adyar Anand Bhavan hotel of HSR Layout, Bengaluru. The PW; 1 has also not taken into consideration the fact that when Ex.P. 6 was issued by PW. 3, the amount mentioned therein was not remitted to the bank account of the 2nd accused, because that account with the Axis bank had already become dormant. So, when the said cheque was not at all encashed, question arises as to the acceptance of bribe.
19. May be for this reason that, when the IO came to know that charges leveled against the 1st accused in so far as the Prevention of Corruption Act, 1988 under Secs.7 and 13 are not attracted, he cleverly takes the help of Indian Penal Code Sections 490 and 120B against this 1 st accused. 30
Spl.C.C. No.84/2015 Touching some of these aspects I rely upon following decisions; (2014)14SCC 295 - CBI Vs. Ashok kumar Agarwal, 2016 (92) ACC 470 (SC) Prof.N.K. Gnguly Vs. CBI, New Delhi, (2018) 5 SCC 557 - Manju Suranan Vs. Sunil Arora and others, and (2004)4 SCC 615 - State Anti corruption branch Vs. Govt. of NCT Delhi and another. When the facts and circumstances of the case are gone through, this Court is of the opinion that so far as Ex.P. 1 is concerned, which shall hold good only for these IPC offences and not for allegations against that accused in respect of the Prevention of Corruption Act, 1988. So here, when the evidence of PW-1 and contents of Ex P-1 are gone through, they only show that it is the complete mechanical approach of that witness without understanding the legal implications of the 31 Spl.C.C. No.84/2015 sections of the Prevention of Corruption Act, 1988, this Ex.P. 1 was issued.
20. During the course of arguments, the Learned Public Prosecutor submitted that merely because PW. 1 did not go through the CD conversation, it cannot be a ground to discard Ex.P. 1 for want of certificate under Sec.65B of the Indian Evidence Act. I fail to understand this approach, because, in order to show that there was a proper and active application of mind on the part of sanctioning authority in so far as going through the records, there must be such acts and deeds which should be in a position to convince the Court that indeed as he found a prima-facie materials, he accorded Ex.P. 1. In the instant case, even when the alleged CD conversation which are enscripted are looked into, there is no 32 Spl.C.C. No.84/2015 admission for Rs. 50 lakhs. Likewise, there was no demand for bribe for Rs. 50 lakhs by the accused No.1. Before alleging in this regard, it is the onus on the part of PW. 3 to convince that what was her pending work with the 1st accused. Again at the cost of repetition, it is stated that the version of 1st accused found in explanation offered to the Sec.313 Cr.P.C. statement that as PW. 3 started suspecting him that he is taking sides with Srinivas Raju to get his three cheques bounced back from PW. 3, this Ex.P. 20 gives some life in this regard. Because, before Ex.P. 20 was lodged, by then, already Srinivas Raju had given a criminal complaint against PW. 3 at Halasoor Police Station, which was admitted by this lady in her evidence. Under such circumstances, to form an opinion that indeed when this 1st accused in the capacity of Geep 33 Spl.C.C. No.84/2015 Driver attached to KSRP, 4th Battalion, Koramangala, Bengaluru and OOD, SCRB, Bengaluru poked his nose in this matter which is very alien to him that he would settle the same falls to the ground.
21. Let it as it may, so far as penal offences alleged to have been committed by the 1st accused either in hatching criminal conspiracy with accused Nos.2 and 3 or alleging that he wanted to cheat PW. 3 by colluding with Srinivas Raju is concerned, PW. 1 was right in according permission to prosecute him. So far as allegation made against the 1st accused in respect of the Prevention of Corruption Act, 1988 holds no water. So, in that regard, I accept the oral and documentary evidence of the prosecution especially PW. 1 and Ex.P. 1 partly. Accordingly, 34 Spl.C.C. No.84/2015 I have answered point No.1 partly in the affirmative.
22. POINT NO.2:- In so far as the allegation made by the complainant against the 1st accused is concerned i.e. in respect of demand of illegal gratification in a sum of Rs. 50 lakhs subsequently scaling down that amount to Rs. One lakh and receipt of Ex.P. 6 by way of an ill- gotten money and lastly cheque issued by the Complainant to the 3rd accused there are lot of variance in the evidence of PW-3 and contents of Ex.P-20. Since this Court has framed separate charge in respect of Sec.7 of the Prevention of Corruption Act, 1988, this Court is first called upon to give its finding on appreciation of oral and documentary evidence available. In order to attract Sec.7 of this Act, first there must be a 35 Spl.C.C. No.84/2015 demand. In this regard, the prosecution has heavily banked upon CD conversation i.e. said to have taken place between PW. 3 and the 1st accused which was later on enscripted and translated written conversation is available in the file.
23. During the course of arguments, the learned counsel for the 1st accused took strong objection for considering MO's No..6 to 11 and 14 into consideration on account of the fact the IO has not placed certificate under Sec.65B of the Indian Evidence Act. So, the learned counsel for the 1 st accused highlighted this aspect by relying upon a decision reported in Darshan Singh vs Central Bureau Of Investigation and in another case between Anvar.P.V vs P.K.Basheer. So far as the dictum and ratio in both the cases are that it 36 Spl.C.C. No.84/2015 is mandated under the provision of Sec.65B of the Indian Evidence Act that so far as electronic evidences are concerned it must be accompanied with this certificate. So long as this certificate is not filed, CDs are inadmissible in evidence. Likewise, when the entire case of the prosecution is looked into, as there is no demand of illegal gratification which is the sine-qua-non for consideration of an offence under the provisions of the Prevention of Corruption Act, 1988. So, according to the 1st accused counsel, first of all, his client was not empowered and authorized to any work in those police station and that he has no any pending of PW. 3 to do any favour to her and to show any extra mileage towards the complainant to settle her dispute. Secondly, when the evidence of PW. 1 himself is gone through, according to me, the 1st accused was 37 Spl.C.C. No.84/2015 working with the SCRB, Bengaluru on OOD basis as a vehicle driver, who was a driver at KSRP, 4 th Battalion, Bengaluru. So it was contended by the 1st accused, that at no stretch of imagination, Sec.7 of the Prevention of Corruption Act, 1988 could be attracted. So far as analyzing and appreciating the evidence of PW. 3 and Ex.P. 20 are concerned, this Court should say that there is lot of variance and inconsistencies which are spilling out in the evidence of PW. 3 when the same is referred with the contents of Ex.P. 20. On one hand PW. 3 gives evidence that, out of fear of 1st accused she had already parted with Rs. 50 lakhs to him and in fact when the entire evidence of PW. 3 is gone through, there is a new element injected, which is to speak in respect of the fact that she comes in contact with one Vijaya Karnataka press reporter and when he 38 Spl.C.C. No.84/2015 intends to publish a report in respect of alleged activity of her and when the said press reporter demands for money, she pays Rs. 50,000/- and in that connection, she comes in contact with 1 st accused Omkarappa. This evidence is found in her evidence. So, at each and every stage, this PW. 3 tries to improve her case only to see that her Ex.P. 20 is filed before the Karnataka Lokayuktha so as to implicate 1st accused in this case. Now, so far as the role of the reporter of Vijaya Karnataka newspaper is concerned nothing is seen in the investigation conducted by the IO at all. Some evidence which came to be given in this regard touching the said reporter was in respect of alleged illegal activity and business conducted by this PW. 3 which evidence of this witness is extracted as under:
I do not know about the matter 39 Spl.C.C. No.84/2015 published by the reporter in that Vijaya Karnataka Paper. It is false to say that I was doing illegal business and activities so, that the publisher has published that matter in his paper. Witness voluntaries that A-1 Omkarappa instigated that reporter to create all these matter to extract money after Lokayuktha case. After filing complaint by Srinivasraju myself and my daughter were called my Halsur Police and directed me to return all the bounce cheques issued by Srinivasraju to me. I have not committed any crime. It is true that despite the same they called to me their station and harassed.
24. I am drawing this piece of evidence to bring home the fact that the sequence of events deposed by PW. 3 in respect of the alleged demand for bribe by accused are so much inconsistent and they are contradictory with each other, so they do not stand on a firm footing. If 40 Spl.C.C. No.84/2015 according to PW. 3, if Srinivas Raju were to get his three bounced cheques back, which were given in respect of purchase of shares to the tune of Rs. 11 Crores from PW. 3 is concerned, then, if according to PW. 3 the 1st accused has taken sides with the one Srinivas Raju in getting those cheques, where is the question of 1 st accused demanding for a bribe. Secondly, if this role of Vijaya Karnataka newspaper reporter were to be considered, even this allegation in respect of alleged extortion of money by the press reporter will in no way show that the 1 st accused demanded for a bribe. Ultimately, what this court smells is that this PW. 3 is involving in not only distortion of material facts, but she has suppressed some of the material facts.
25. For this reason, when we go through the 41 Spl.C.C. No.84/2015 cross-examination of PW. 3, she is unable to withstand the jolt of that cross-examination questions posed to her. Some of the answers given by PW. 3 is extracted as below:
I have no any official work with A-1 Omkarappa. I do not know as to whether A-2 and 3 are public servants or not. I came to know about Puttaiah on 22-04-2013. ... It may be true that I might have not stated this fact before the Lokayuktha Police in my statement. ... It is true that said Veerabadra Gowda approached me through a Vijaya Karnataka paper publisher. I do not know the fact that at that time my driver Rakesh was also present with them. ... It is true that my allegation against the accused No.1 with regard to the act of that news agent is on my presumption. ... I do not know as to whether the accused No.1 was present in that station at the time of my discussion with Srinivas Raju or not. ... It is true that, in my complaint, I had stated that 42 Spl.C.C. No.84/2015 the accused No.1 Omkarappa has got registered a case agianst me through Srinivas Raju by taking bribe. It is true that in the complaint, I had stated that, Venkata Raju filed O.S.No.25385/2013 against me."
26. So, when these admissions are taken note of, these aspects are not only unconnected, but they cannot convey before this Court, either PW. 3 was serious in giving complaint against the 1 st accused or she wanted to disclose the real truth in respect of the same.
27. Likewise, on the same footing, if the contents of Ex.P. 20 are gone through, this Court is unable to understand as to how can a complainant bring her personal activities, civil and criminal cases pending before the various police stations, Courts and lastly her real estate 43 Spl.C.C. No.84/2015 transactions with private parties into the gambit of the Prevention of Corruption Act, 1988. Another concern of this Court is how can the officer who has registered Ex.P. 20 also lodged FIR at Ex.P. 26 can ignore these important elements. Even assuming for the sake of arguments that there was a demand for bribe, at least the minimum inputs and requirements must be that apart from the person demanding a bribe must be a public servant, he should be a public servant having pending work of the complainant and must be vested with powers to deal with them as per law. No such requirements are met, but even then for the reasons best known Ex.P. 26 came to be registered.
28. During the course of arguments, the learned 44 Spl.C.C. No.84/2015 counsel for the accused Nos. 1 to 3 drew the attention of this Court to the personal life of PW.
3. According to them, the antecedents of PW. 3, is such that, she is a woman of brash and adamant nature, quarrelsome and a wire puller. In fact the learned counsel of the accused Nos. 2 and 3 submitted that the antecedents of PW. 3 is so bad that she has not only harassed her earlier husband but she is an accused in the murder case. In this regard, he took this court through the answers of PW. 3, found in her evidence some of which are extracted are as follows:
It is true that previously my name was Kathyayini Reddy. Witness voluntaries that , as her father belongs to Reddy community, so it was so. It is true that my husband had married another woman and having children. Her name was Sarala. ... I am the legally wedded wife of Ramakrishna Shetty. I do not know as to 45 Spl.C.C. No.84/2015 whether above said Sarala is alive or dead. It is false to say that, my husband Ramakrishna Shetty died under a suspicious circumstances. Witness voluntaries that he died due to brain cancer. It is true that in Halsoor police station, 4 unnecessary cases were registered against me. It is true that, in the said cases myself and my daughter are secured in the police station unnecessarily.
... I did not deposit bribe amount in the bank account of the accused, with that bank as that account was closed."
29. When these answers of PW. 3 are taken note of, leave alone, there could be a demand for bribe, even the alleged trap by the Karnataka Lokayuktha seems have been very wrongly initiated. So, for as the role of PW. 3 in giving this complaint is concerned, she herself is not clear as to how can there be a demand, when her problems which are manifold which could not be 46 Spl.C.C. No.84/2015 dealt by a public servant of police constable cadre. In that fact of the matter, how can the 1 st accused can help her. There is a complete failure on the part of PW. 3 to instill confidence in the mind of this Court that Ex.P. 6 presented for encashment to the bank account of the 2nd accused on behalf of the 1st accused was towards the acceptance of the bribe amount. More over, by then at the behest of the 2nd accused application/request his bank account had been considered as inoperational.
30. Let me examine the crucial evidence of PW. 2 who is a mahazar witness to Ex.P. 2 and P.3.
According to this person, he was a Junior Assistant with BESCOM and he was called by the Lokayuktha police to assist them, so he meets them with another person Vijay Kumar and they 47 Spl.C.C. No.84/2015 were briefed about the pre-trap mahazar, then about trap mahazar. According to PW. 2, even the Karnataka Lokayuktha officers told them about the contents of the Ex.P. 20, demand of bribe by the 1st accused. According to PW. 2, this PW. 3 produces Rs. 1,00,000/- containing Rs. 1,000/- denominations, same were reduced in note sheet Ex.P. 2, said notes were smeared with Phenolphthalein powder, thereafter, one Mr.Vijaya Kumar had put the said tainted currency notes in the brief case of Mansur Ahmed Sadiq, the PA of the PW-3, then his hands were washed in a lotion prepared in a bowl, said lotion changed into pink color and all these preparations for laying trap were spoken by this witness.
31. According to PW. 2, they were taken to the 48 Spl.C.C. No.84/2015 spot where the accused No.1 had given phone call to PW. 3, at the first point of time, i.e. the City Central Library, Cubbon Park and when they reached the said spot and they have taken their positions, at that particular point of time, the 1st accused informed the PW-3 to come over to the coffee square hotel situated near the Chinnaswamy stadium. Again when they went to that spot next day about 9 AM, she receives another call from the 1st accused who told PW. 3 that he suspects the presence of some strangers, so he requests PW. 3 to deposit the said sum of Rs. 1,00,000/- in the bank account of the 2nd accused in the Axis bank which is situated at R.T. Nagar and further directs PW. 3 to send the remitted cheque challen/receipt through email to the address sent by the 2nd accused. According to PW. 2, after depositing the said amount, it was 49 Spl.C.C. No.84/2015 informed to the 1st accused , to which this 1st accused demands them for the balance amount of Rs. 3 lakhs to which according to this witness PW-3 supposed to have told that she would pay balance of Rs.1 lakh after completing the errand by the 1st accused. As per the instructions, on 22-04-2013, this witness, Vijay Kumar, complainant PW. 3 and Lokayuktha police assembled near the Adyar Ananda Bhavan hotel at about 3.30 PM, there accused Nos. 3 and person by Murali, PW-5 came to that hotel and when these people were taking lunch sitting on different chairs, PW. 3 issued a cheque of Rs. 5 lakhs and some documents to the 3rd accused. This was observed by the Karnataka Lokayuktha police and mahazar witnesses, then they surrounded accused No. 3 and Murali. After collecting that cheque, 3rd accused gives a call to 50 Spl.C.C. No.84/2015 the 1st accused stating that he has collected the cheque and accused No.1 told them to come over to Jakkasandra bus stop, then this accused with Lokayuktha officials went to the Jakkasandra Bus stop where accused No.3 shown accused No.1, thereafter, all the formalities connecting arresting the 1st and 3rd accused, seizing the cheque, drawing the mahazar, etc. takes place.
32. Now, this examination of PW. 2 and his ocular evidence is to convey to this Court that this PW. 2 being a mahazar witness was able to over hear PW. 3 that either the 1st accused demanded for a bribe or for having accepted the cheque through the 3rd accused which was in respect of the bribe amount. But, the very material admission given by PW. 2 were extracted hereunder:
51
Spl.C.C. No.84/2015 "I did not see the accused no 2 earlier to that day. I did not heard the conversation of accused no 2 with the complainant over the mobile phone. I saw the message sent by the accused no 2 to the complainant's mobile near Capital Hotel. It was around 12-00 noon. I do not know that mobile number. That message was for depositing for a sum of Rs.1,00,000/- to the account of one Mr. Manjunath to his Axis Bank account".
33. Virtually this answer is in no way helps the prosecution to the prove the fact that the responsibility which was assigned to this witness to act as a mahazar witness was successfully discharged by him. Ultimately, what this Court finds is that when a cheque was handed over to the 3rd accused Puttaiah at the Adyar Anand Bhavan hotel, admittedly, the 1 st accused was not at all present there. So, even in 52 Spl.C.C. No.84/2015 the written explanation offered to Sec.313 Cr.P.C. statement, according to the, 3 rd accused, he was unaware of the 1 st accused demanding for a bribe. On the other hand, 2nd accused replies that this amount was received towards painting and repair charges of their house. So, here, these aspects will have to be proved by the prosecution beyond all reasonable doubt. So, even the so called mahazar witness on whom the prosecution very much relied upon, in one voice states that he does not heard anything in respect of the conversion between PW. 3 and the 3rd accused on that day. So, the big vacuum which is created here has to be filled by the IO by producing cogent and cohesive evidence.
34. Lastly, coming to the CDs banked upon by the IO/PW-11 to prove the fact that indeed the 53 Spl.C.C. No.84/2015 1st accused demanded bribe amount of Rs. 50 lakhs, it was scaled down to Rs. 5 lakhs and ultimately, he settled at Rs. 1 lakh. Even this aspect has not been proved. The question before the Court is if the prosecution wants to show that the bribe was paid or promised by passing of a cheque or through RTGS to the bank account of the 2nd accused or Smt.Roopasri, even to which it is an admitted case of the prosecution that the 1st cheque issued by PW. 3 for Rs. 1 lakh could not be encashed, because the Axis bank account of the 2nd accused with R.T. Nagar branch had already become dormant. So, it was returned unpaid. The 2nd cheque handed over to the 3 rd accused at the Adyar Anand Bhavan Hotel, HSR Layout was also not encashed because the KLA police arrested the 3rd accused and seized that cheque. So this chain of events are not properly 54 Spl.C.C. No.84/2015 linked. Now, the prosecution trying to connect all these alleged misdeeds of the 1st accused by claiming that he has demanded a bribe. This Court cannot pre-suppose a fact that there is a pending work of PW. 3 with that person. So, the nexus which is trying to be established by the IO with the help of Ex.P. 20, P.3, P.4,P.5 and CD conversations have not been of any help to it. As I have stated earlier, if a complaint has to be registered for the offences alleged under the provisions of the Prevention of Corruption Act, 1988, the registering authority must not only be careful, but it must apply its mind to the facts and circumstances of the case. When the 1st accused was a police Geep Driver and is not legally vested with any powers to handle any matters either on administration side or in respect of any crimes and other aspects, how did 55 Spl.C.C. No.84/2015 the Karnataka Lokayuktha police Inspector came to the conclusion that Ex.P. 20 has to be registered is a million dollar question?
35. During the course of arguments, the counsel for the 1st accused took this court through the CD conversations which were got it written in respect of date, time and place with regard to conversations between PW. 3 and the accused Nos. 1 and 3 and brought out major discrepancies in them. Indeed I found sufficient force in the argument of the learned counsel for the 1st accused and lastly so long as the certificate under Sec.65B of the Indian Evidence Act are not filed along with CDs or any electronic document, the contents of them cannot be read in evidence. Even when the evidence of expert in this case is looked into basing upon the materials 56 Spl.C.C. No.84/2015 furnished to her, she has given that report which is like any other document available for appreciation to this Court and not a conclusive proof by itself.
36. So, there was no demand for bribe. Now the question would be what happens to the cheque issued in the name of 1st accused through the 3rd accused. When the answers and written explanations of all the 3 accused in respect of Sec.313 Cr.P.C. statements are looked into, they have to be accepted because passing of a cheque to the 3rd accused is not followed by handing over of any document or telephone conversation and that cheque was not allowed to be presented for encashment. Even if it is so, then the so called conversation between the 3rd accused and the PW-3 is not over heard by PW. 2. In the instant 57 Spl.C.C. No.84/2015 case, the evidence of PW. 3 has been considered very carefully not only keeping in mind the antecedents of PW. 3, but also the fact indirectly PW. 3 will also acts as a accomplice in this case. Because, giving bribe to the public servant is also considered as an offence. Under such circumstances, the evidence of both mahazar and shadow witnesses assume all importance. Looking into these aspects, which surround lodging of Ex.P. 20, the facts narrated by PW. 3 in that document has been very badly jumbled up which has shown that there was no any demand for bribe. So, the question of acceptance does not arise. Likewise, when Ex.P. 20 was lodged, there was no any pending work of PW. 3 with the 1st accused and that he is not a competent person. Considering these aspects, I answer this point No.2 in the negative. 58
Spl.C.C. No.84/2015
37. POINT NO.3:- I have taken up the discussion on this point for the fact that the IO has invoked two penal provisions both from the Prevention of Corruption Act, 1988 as well as the Indian Penal Code. So far as the allegations made against all the accused in respect of Indian Penal Code sections, it can be considered by me for discussion later on. Now, the sustainable question is whether the 1st accused's conduct itself is unbecoming of a Government servant which amounts to criminal misconduct. According to me, the very evidence of PW. 3 is more than enough to come to the conclusion that first of all there was no demand for bribe, secondly, the sections invoked by the PW-10 under the prevention of corruption act, 1988, were not at all attracted as the 1 st accused was only a Geep Driver at KSRP on OOD to SCRB, 59 Spl.C.C. No.84/2015 Bengaluru, so the question of he promising PW. 3 that he could settle her pending cases will not sustain for consideration at all. More over, in the cross-examination of PW. 3, there are so much of material contradictions that this Court is unable to understand as to what exactly PW. 3 wanted from the 1st accused. Very interesting aspect is, it is the evidence of PW. 3 that she came in contact with 1st accused through her car driver Rakesh. But, neither the IO has examined this Rakesh or has recorded his statement. According to me, if PW. 3 had a problem with Vijaya Karnataka Reporter that he should not have published an article involving her case, that is nothing to do with the complaint given against her by one Venkata Rao and Srinivas Raju either at Mahadevapura, Wilson garden or Halasoor Police Stations. In the entire evidence of PW. 3, 60 Spl.C.C. No.84/2015 which was given intending to support Ex.P. 20 but both oral and documentary evidence on the contrary are at loggerheads.
38. If according to PW. 3, this 1st accused demanded for a bribe, then PW. 4 who is the shadow witness who should support the stand of PW. 3 in this regard. But, in his cross- examination, there is a admission that he did not over hear the conversation that took place between PW. 3 and the 1st accused. The said admission of PW. 4 is extracted as under:
It is true that personally I do not know the actual conversation taken place between the said two persons and complainant Kathyayini Shetty. Personally I do not know the number of calls received by the complainant Kathyayini on that day and name of the persons who gave such calls to her. It is true 61 Spl.C.C. No.84/2015 that I did not hear the conversation of Kathyayini in her mobile on that day.
39. So, when the prosecution relies upon the evidence of a shadow witness PW. 4, but he is of no help to them. Even if this admission of PW. 4 is dissected or ignored there are other uprooting admission given by this witness, according to whom, the IO seized mobile handsets of PW. 3, accused Nos.2 and 3. but, for the reasons best known, the IO has returned the seized mobile set of PW. 3 to her. In this regard, the material admission given by PW. 4 is recorded as under:
After our arrival to Lokayuktha office, IO has seized two phones from Omkarappa, one phone from Manjunath and one phone from complainant Kathyayini Shetty. There after they seized the said mobile phones and sealed it in my presence and assigned number to the same. ... Since there was 62 Spl.C.C. No.84/2015 some defect in the conversation recorded in the mobile of Kathyayini Shetty, it was returned to her and other 3 mobile phones were seized.
40. This admission of PW. 4 was attacked by the counsel for the 1st accused on the ground that this pick and chose approach adopted by the IO during the investigation creates doubt in respect of the investigation and the fair investigation under taken by him. According to me, it is not only registering of Ex.P. 20, but also lodging of Ex.P. 26 both should confirm to the norms and standards set in by the procedural law as well as dictum of the Hon'ble Apex Court and Hon'ble Courts. In the instant case, the investigation undertaken by PW. 10 and 11 are not consistent and not according to set norms.
41. Even so far as laying trap to 1 st accused is concerned, when the contents of Ex.P. 4, P.5, 63 Spl.C.C. No.84/2015 P.11, P.12, P.14 and P.16 are gone through, there are sea of changes and variance in their contents found. Another notable discrepancy which this Court came across was that, when according to PW. 3, the 1st accused refused to receive the bribe amount in hard cash, it is the evidence of that lady that she consented to issue cheque for the demanded amount and she did not returned the tainted amounts given by PW. 11 which were smeared with Phenolphthalein powder. Now, when according to PWs.10 and 11, they have got prepared the 100 notes of Rs. 1000/- denominations gave by PW. 3 for the purpose of laying trap which were smeared with the said powder. Why PW. 11 or the other officials have not received that amount from her to which there is no evidence at all. Very casually, PW. 3 in her cross-examination admits that she did not return 64 Spl.C.C. No.84/2015 the tainted money of Rs. 1,00,000/- to the Lokayuktha police. The said admission are extracted as under:
The amount deposited in the bank account of the accused was not the tainted amount. I am not remembering as to whether I have carried any of my personal amount other than the tainted notes and deposited amount or not. ... It is true that, on 19-04-2013 in the morning the said amount of Rs. 1,00,000/- was with Mansoor. They had not collected any acknowledgement from me for having handed over Rs. 1,00,000/- to me. ... I did not deposit bri be amount in the bank account of the accused with that bank as that account was closed."
42. Now, there is no explanation offered by PW. 11 as to what logical conclusion he arrived when that tainted money was retained by the PW-3 which was unused. Now, this forms the core issue. Even in respect of issuing the cheque in 65 Spl.C.C. No.84/2015 favour of the 2nd accused Manjunath to be deposited in his Axix Bank, RT Nagar Branch is concerned, there is variance. Lastly, in respect of depositing cheque amount in favour of Smt.Roopashree which was given to the 3rd accused to be deposited in her ICICI Bank account, Lalbagh Branch, Bengaluru is concerned, again there is contradiction in those ocular evidence. Now, when PW. 3 is unable to make out her stand clear as to what was that demand for bribe, ultimately settled between them and what she paid or issued by way of cheque to which there is no clarity in her evidence at all. In fact, there are good number of admissions found in her evidence given contrary in this regard. But, some of the admissions are extracted above show that neither there was a demand nor there was an acceptance. Now, the 66 Spl.C.C. No.84/2015 question that what arise before the Court is as the accused Nos.3 and 2 found with a cheque issued by Smt.Kathyayini Shetty in a sum of Rs. 3 lakhs can that amount is an acceptance of bribe. Again at the cost of repetition, it is stated that so far as that cheque was concerned, according to PW. 11, they arrested 1st accused at Jakkasandra Bus Stop, he admitted in respect of the same but the same was seized from the 3rd accused where encashment of that cheque amount had not taken place then. In this regard, prosecution has relied upon the written explanations offered by accused No.1 at Ex.P. 8, accused No.3 at Ex.P. 9 and Ex.P. 10 offered by one Murali. But, those explanations are to the contrary allegations made by the prosecution so they by themselves cannot become conclusive proof. Mere possession of the cheque recovered 67 Spl.C.C. No.84/2015 from PW. 3 by PW. 11 cannot show that there was an acceptance of bribe. In this regard, I would like to make a reliance on the decision reported in AIR 1979 SC 1408 in the matter between Suraj Mal Vs. State (Delhi Administration), wherein the Hon'ble Apex Court held as under:
Criminal -Bribe- Section 342 of Criminal Procedure Code, 1973, Section 5 (2) of Prevention of Corruption Act, 1947 and Sections 34 and 161 of Indian Penal Code, 1860 -Appeal against conviction for offence under Section 5(2) of Act of 1947 and Section 161/34 of IPC
- Appellant who was in charge of investigation of case against X and his companions demanded bribe to get them acquitted -
Money paid as bribe was recovered from shirt of appellant
- Appellant denied accepting any money from X and his companions in statement made Section 342 - mere recovery of money from appellant not sufficient to prove the charge of 68 Spl.C.C. No.84/2015 prosecution against appellant in absence of any evidence to prove payment of bribe or to show that appellant had voluntarily accepted money - held, conviction of appellant liable to be set aside -Appeal allowed.
43. On a similar analogy, another decision reported in 2018(3) Kar.L.J.637 in the matter between N.Raghumurthy Vs. The State, wherein the Hon'ble Court held as under:
Criminal -Corruption -
Conviction - sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (PC Act) - present appeal is filed to challenge judgment of conviction and order of sentence passed against appellant for commission of offence punishable under Sections 7 and 1392) of PC Act - Whether judgment of conviction and order of sentence under challenge deserve interference -
Held, demand of illegal gratification is a sine qua non for constitution of an offence under provisions of PC Act -69
Spl.C.C. No.84/2015 Prosecution is bound to prove by substantive evidence regarding the demand and acceptance of money beyond reasonable doubt
- In present case, prosecution failed to prove that money was received by accused as an illegal gratification - Demand and acceptance of illegal gratification was not proved by prosecution beyond reasonable doubt
-Conviction and sentence is set aside -Appeal allowed.
44. Lastly, ILR 2017 Karnataka 5591 in the matter between N.A.Suryanarayana Vs. State, wherein the Hon'ble High Court of Karnataka held as under:
The Court is expected to look into closely as to whether the accused has the official role to play in order to do an official favour. - In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do official favour in order to 70 Spl.C.C. No.84/2015 demand bribe and that the said bribe amount was received only after demand as contemplated under Sec.7 of the Act. -
Prosecution is expected to prove that the acceptance of bait money by the accused was preceded by demand. Hence, heavy burden is on the prosecution to prove both demand as well as acceptance in a trap case. - Acceptance of bribe amount or possession of tainted money by the public servant must be preceded by demand and evidence has to be appreciated properly giving the benefit to the accused. - The explanation offered by the accused for possession of the alleged amount must be considered. 915), (53) and (61)
45. These aspects when referred in the light of the ratio laid down by the Hon'ble Apex Court and the Hon'ble Courts, it is crystal clear that the prosecution has thoroughly failed to prove that there was a demand and acceptance of bribe. As per PW. 3, it was her admission that there was 71 Spl.C.C. No.84/2015 no pending work with the 1st accused. So the question of this accused committing any criminal misconduct will not sustain at all. Accordingly, I answer this point No. 3 in the negative.46. POINT NO.4:- Initially PW. 3 gave Ex.P. 20
it was alleged by her that there was harassment by the 1st accused like police officials attached to Mahadevapura and Halasur police stations. So, her intention was that this PW. 3 was victimized that as she was demanded to pay Rs. 50 lakhs, it was scaled down to Rs. 5 lakhs and ultimately, when the PW. 10 and 11 after registering Ex.P. 20 and P.26 came to know that the allegations levelled against the 1st accused may not withstand the penal provisions of Sections 7 and 13(1)(d) and 13(2)of the Prevention of Corruption Act, 1988 tried to rope in this accused with other 72 Spl.C.C. No.84/2015 provisions of Indian Penal Code. Now, coming to Sec.419 of Indian Penal Code, according to PW. 3, the 1st accused had an intention of deceiting her. In the instant case, what is that deceitfulness was found on behalf of the 1st accused is not known. When the entire Ex.P. 20 contents are considered, and its pith and substance is taken note of, it can only show that the 1st accused might have taken sides with Srinivas Raju in getting his bounced cheques back from the PW. 3 and nothing else. The second aspect could be as there were both criminal and civil cases pending against PW. 3 and her daughter, the 1st accused might have promised her that he would take a lead role in settling the matter. In the instant case, but for issuing cheque to the 3rd accused at Adyar Anand Bhavan Hotel, HSR Layout, Bengaluru, it is her 73 Spl.C.C. No.84/2015 consistent version that she had not paid any money to the 1st accused. In fact, on the one hand, her personal assistant by name Mansoor Ahmed Sadiq and Panneer Selvam, according to her through whom she supposed to have paid money to the reporter of Vijaya Karnataka asking him not to publish a report involving her. But, for the reasons best known, the IO who filed the charge sheet has not cited either Mansoor Ahmed Sadiq or Panneer Selvam as charge-sheet witnesses. So there is no clarity and the version of these two personal assistants of PW. 3 is not forthcoming. Under such circumstances, when no money is paid to the 1st accused, question of deceiting or cheating PW. 3 does not arise at all.
47. Even the alleged tainted notes of Rs. 1,00,000/- according to PW. 3 is with her. So far 74 Spl.C.C. No.84/2015 as the 1st cheque of Rs. 1 lakh deposited in the name of 2nd accused with Axis Bank, RT Nagar branch could not be realized, because that bank account had become dormant. Even so far as another cheque which was given on 3 rd accused was not presented for encashment, ultimately the KLA officials apprehends accused Nos. 1 and 3. Now, deceiting PW. 3 for money or with other allegations have not been proved by her at all. Even the evidence of PW. 4 when looked into, he only spoke about the trap that was laid and he speaks in volumes as to the 1st accused made them to visit many places and ultimately, he sends 3rd accused with one Murali where this PW. 3 hands over the cheque. But, in the entire evidence of PW. 4, there is nothing which makes this Court to believe that the 1st accused has received the cheque by promising that he would 75 Spl.C.C. No.84/2015 act upon or desist from acting upon.
48. Likewise, when the evidence of PW. 2 who is the co-mahazar witness to trap is looked into, it is almost verbatim to the evidence of PW. 4. Even this, Lokesh who was the Junior Assistant, comes out with an admission that he could not over hear the conversation that took place between PW. 3, 1st accused and the 3rd accused. So, all the mahazars referred to supra and a shadow witness apart from manifesting that Karnataka Lokayuktha Inspector instructing them to assist them in a particular manner in order to lay trap has not been completely proved.
49. Not being satisfied with this, PW. 11 has examined PW. 5 by name Murali. This person said to have accompanied 3rd accused to the 76 Spl.C.C. No.84/2015 Adyar Anand Bhavan Hotel, HSR Layout on the day trap was laid. But, this witness has completely turned hostile. Some of the evidences given by him in his examination-in-chief is extracted as under:
About 3-4 years ago, on one day in the afternoon myself and accused no 3 Puttaiah had been to Adiyar Ananda Bhavana hotel situated at HSR layout. At that time, 3-4 Lokayuktha officials came near us and enquired me as to what we are doing in that hotel. ... I do not know as to whether on that day one Smt. Kathyayini Shetty was present in that hotel or not. On that day I submitted my written statement before the Lokayuktha Police.
50. Having turned hostile, not supported the case of the prosecution. But, in the cross- examination conducted by the 1st accused counsel, this witness gives a new dimension to 77 Spl.C.C. No.84/2015 the case of the prosecution and also throws light as to how fair the investigation was done. One such admission of PW. 5 is as under:
It is true that on that day I was made to sit along these 3 accused in that office. It is true that on that day Lokayuktha Police Inspector informed stated that if I execute my statement as per Ex.P.-10 he will send me home, otherwise he will send me to the jail. It is true that on that day, from 09- 30 AM till 09-30 PM I was in the Lokayuktha custody.
51. So, instead of this witness helping the prosecution as an independent witness to show that 3rd accused was apprehended in the said Adyar Anand Bhavan hotel at HSR Layout, Bengaluru, on the other hand, given evidence that he was threatened to execute Ex.P. 10 in a manner which is beneficial to the prosecution. 78
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52. On the other hand, even when we look into the documents placed by the prosecution, none of the documents which are marked as exhibits sign the fact that the 1st accused had an intention of cheating the PW.3. I should say the penal provisions of Indian Penal Code they are Sec.120B and 419 have been invoked as back up by foreseeing that if by chance on one count, the 1st accused were to be exonerated at least as a stand by in respect of other sections invoked under the Indian Penal Code, the accused persons should not go scot-free. When the definition contained in Sec.419 of Indian Penal Code is looked into, there is no such circumstances pleaded herein which will attract the same.
53. Even on considering the evidence of PW. 11, 79 Spl.C.C. No.84/2015 nothing which makes this Court to appreciate that evidence by holding that there was an act of deceit on the part of 1st accused in so far as PW. 3 is concerned. Coming to the cross-examination of this witness, it was more to speak in respect of laying trap and drawing different mahazars. But, this Court is of the opinion that prior to acting upon Ex.P. 20, the KLA police ought to have enquired as to whether it is a fit case for registering Ex.P. 26. Some of the admissions given by PW. 11 in this regard show that there was no complete application of mind which was extracted hereunder:
" During my investigation, I had not interrogated and recorded the statement of Veerabhadregowda. During my investigation, I had not interrogated and recorded the statement of Srinivasaraju. During my investigation, I have not collected any documents from Hulsoor Police Station with regard 80 Spl.C.C. No.84/2015 to the case registered against complainant Kathyayini Shetty. I have not recorded the statement of IO of that case. ... During my investigation, I have not collected any documents pertains to the case against Kathyayini Shetty from Mahadevapura Police Station".
54. This goes to show that Ex.P. 20 was mechanically registered. In this regard, in good number of cases, the Hon'ble Apex Court and Hon'ble High Courts have held that there must be a preliminary enquiry to register the complaint and that must be followed by the law implementing agencies scrupulously. In this regard, I rely upon the following decisions:
1) 2012(2) AIR KAR 599 in the case of Sri. Ramesh Desai Vs. The State of Karnataka.
2)AIR 2014 SC 187 in the matter between Lalitha Kumari Vs. Government of U.P. & Others.
3)2015 Crl.L.J. 3704 in the matter 81 Spl.C.C. No.84/2015 between Ranganath Vs. State of Karnataka.
4)2010(10) SCC 374 in the matter between Sambhu Das @ Bijoy Das & Others Vs. State of Assam.
55. In the instant case, had the PW. 11 were to have minutely referred these aspects at the time of registering Ex.P. 20, it would have substantially saved him from registering incorrect case against the 1st accused. Likewise, in the further cross-examination of PW. 11, there are such admissions, which goes with the root of the prosecution case.
56. As there are no materials to come to the conclusion that the 1st accused either had intention or involved in cheating PW. 3, question of attracting Sec.419 of Indian Penal Code does not arise at all. There is also allegation against 82 Spl.C.C. No.84/2015 all the accused that all the 3 accused hatched a criminal conspiracy to cheat PW. 3 and to harass her. Initially, the allegation made by PW. 3 was that both Mahadevapura and Halasoor police officials were harassing her and ultimately, she brings in role of her car Driver Rakesh and press reporter of Vijaya Karnataka and gives inconsistent evidence as to some how she paid amount through her personal assistant Mansoor, later on she retracts this admission in her cross- examination. So, this Court is unable to assess as to with what intention that Ex.P. 20 was given before the Karnataka Lokayuktha police Inspector. According to me, the very own witness, whom the prosecution examined have failed to support in this regard. One such witness says i.e. PW. 7 by name Satish, S/o H.E.Kalegowda, according to him, he was also a 83 Spl.C.C. No.84/2015 driver attached to KSRP, Bengaluru, he knew the 1st accused. According to him, on 23-03-2013, around 2.00PM, he went along with the 1st accused to have juice in a hotel Parag, when they went inside that hotel, it was filled with customers, then they had juice and at that time a lady was sitting near a table and accused No.1 Omkarappa talked with her. Even according to this PW. 7, he did not hear the conversation between them as he was watching cricket match through a TV. According to this person, he does not know anything about this case. He turns hostile and in the cross-examination conducted by the defence counsel, he admits that on 8-5- 2013 when he went to Lokayuktha Police Station, neither complainant Kathyayini nor the 1st accused were present there. According to him, he was introduced to PW. 3 by the 1 st accused and 84 Spl.C.C. No.84/2015 he does not know anything in this matter. This assistance of PW. 7 was taken by PW. 11 only to show before this Court that this 1 st accused demanded bribe from PW. 3 and that acquaintance, the prosecution wanted to establish. But, even if the prosecution proves that the 1st accused knew PW. 3, that by itself cannot show before the Court that neither the 1st accused demanded bribe or had an intention to cheat PW. 3. So, even in respect of this aspect, the prosecution has failed to prove it. Accordingly, I answer this point No.4 in the negative.
57. POINTS NO.5 to 7:- I have taken up joint discussion on these three points, because, the allegations made against accused Nos. 2 and 3 will fall for consideration only when the 85 Spl.C.C. No.84/2015 prosecution is successful in fixing accountability on the 1st accused that he involved in committing offence of abetting conspiracy and cheating. At the out set, this Court has come to the conclusion that no any element of deceit or an intention to deceive PW. 3 was found at all. During the course of arguments, the Learned Public Prosecutor relied upon the respective written statements/explanations given by accused Nos. 1 to 3 to Sec.313 Cr.p.c. statements to bring home the fact that as per Ex.P. 8, 1 st accused himself has admitted that through the Car Driver of PW. 3 by name Rakesh, he came in contact with that lady and offered to extend his assistance to see that, that lady is saved from the clutches of Halasoor and Mahadevapura Police Stations police personnel. The Learned Public Prosecutor took us through the contents of Ex.P. 86 Spl.C.C. No.84/2015 8 to highlight before the Court that the contents of this document acts as admission, so it will not lie in the mouth of the 1st accused to contend that he did not put forth any demand for illegal gratification. According to me, to some extent I concur with this submission of the Learned Public Prosecutor, but Ex.P. 8 itself cannot be a document which can be independently relied upon by this Court. Now, this Ex.P. 8 will have to be very carefully considered by PW. 11. But, the initial investigation under taken by this witness show that he did not bestow his attention in collecting documents in respect of cases filed by PW. 3 and against her which were pending before Mahadevapura and Halasoor Police Stations. In fact, in the cross-examination of PW. 11, he admits that he did not under take investigation in that direction. It is so much so 87 Spl.C.C. No.84/2015 that he did not even collect the case papers in respect of police files which are pending against Kathyayini at those stations. Some of the admissions given by this witness is extracted as under:
" During my investigation, I have not collected any documents pertains to the case against Kathyayini shetty from Mahadevapura Police Station. It is true that there is a request in the complaint to take action against the police officials with regard to their harassment to her."
58. So, this admission gives a clue that the PW. 11 who ought to have conducted investigation comprising these aspects. Coming to the role of 2nd accused in this case is concerned, the allegations which he faces was that he was a party to the criminal conspiracy hatched by the 1st accused to deceive PW. 3. This 2nd accused is 88 Spl.C.C. No.84/2015 none other than the son of the 3 rd accused and they are not public servants. When we minutely examine the role of this accused that he had given his bank account number of Axis bank, RT Nagar Branch, wherein the 1st accused said to have told PW. 3 to deposit Ex.P. 6. But, when Ex.P. 6 got deposited by PW. 3 through her personal assistant Panneer Selvam which was not honoured, because by then, that bank account of 2nd accused had already become dormant. So the prosecution should convince this Court that how merely furnishing his bank account number and his email address tantamounts to commission of a criminal conspiracy. It was found in the evidence of PW. 3 and 11 that they were not directly knowing them, only when the 1st accused insisted that he will not receive the alleged bribe by way of cash, then 89 Spl.C.C. No.84/2015 only he furnished the bank account number. So, under such circumstances, according to him, the role played by the 2nd accused in furnishing information tantamounts to commission of offence of criminal conspiracy.
59. When the counsel for the 2nd and 3rd accused posed questions to PW. 11 as to when did he detect that the 2nd and 3rd accused involved in this alleged offences, to which this IO was non committal in his answers. Some of his answers found in the cross-examination are extracted as under:
It is true that, on the last date of trap, we arrested accused No.1 and detained him in our custody and let off accused No.3 and one Mr.Murali. It is true that, accused No2 and 3 are not the public servants. It is true that the bank account of accused No.2 Manjunath 90 Spl.C.C. No.84/2015 was closed on 23-07-2012. ... It is true that in the bank letter marked at Ex.P. 34, it is mentioned that the customer has closed that account."
60. So, this was made as the basis for both PWs. 10 and 11 to implicate the 2 nd accused in this case. But, I failed to understand that prior to presentation of Ex.P. 6 in the bank account of 2 nd accused, that account was got it closed by the 2 nd accused himself. So, if at all any wrong information is provided by any person, it must be the PW-3. So, how the penal section is attracted to the 2nd accused. This ought to have been explained by PW. 11, but he completely failed to do so. Like wise, when the KLA officials arrested the 1st accused at the Jakkasandra bus stop then why they freed 3rd accused and PW-5 not answered by the said I-O. On the same footing why no action of reprimand was taken against 91 Spl.C.C. No.84/2015 the 2nd accused not explained. Coming to the core question of not interrogating Smt.Roopasri, claimed as wife by the 1st accused, daughter of the 3rd accused to which there is no material placed by the P.W.-10 in this case. Hence accused Nos. 2 and 3 committing offenses under either Sec.120(b), 203 of the IPC or under Sec.12 of the P.C. Act 1988 does not arise at all.
61. Likewise, coming to the charge sheet filed by PW. 10 by name Srinivas, according to him, he took charge of the case and undertaken further investigation as per the directions of higher authorities and he makes it clear that he undertook further investigation from CW.25 H.P.Puttaswamy, verified the earlier investigation done by him. Then having collected Ex.P. 18, FSL report and sanction order in respect of the 92 Spl.C.C. No.84/2015 1st accused at Ex.P. 1, he submitted the charge sheet. But, in the cross-examination conducted by the counsel for the accused Nos.2 and 3, he could not answer in respect of the role played by accused Nos.2 and 3 in this case. Some of the admissions given by PW. 10 are extracted as under:
" Right now, I am not remembering the official transaction between the accused and the complainant but I can say about the same, after going through the charge sheet. ... Before taking charge of this case, I was not knowing accused No.1 Onkarappa".
62. It was further contended by those accused persons that a person who has mechanically filed the charge-sheet can only give such admissions. Even considering the fact that PW. 11 initially completed the investigation in this case, at least PW. 10 having claimed that he has 93 Spl.C.C. No.84/2015 verified the earlier investigation done by CW.25, this court found that he was not in a position to explain the exact role played by accused Nos. 2 and 3. But, in the documents, no such signal can be found in respect of this accused No.2 having an ill-intention of cheating PW. 2. There is no an iota of material in the form of both oral and documentary evidence to show that prior to laying trap, this 2nd accused was in continuous touch with the 1st accused. Even when we consider the contents of Ex.P. 8, there is no mention of the assistance of the 2 nd accused to the 1st accused even prior to laying of the trap. Under such circumstances, an isolated incident of furnishing bank account and email address of the 2nd accused cannot be considered as an act on the part of the 2nd accused to cheat PW. 3. It is admitted by both PW. 3 and 11 that Ex.P. 6 94 Spl.C.C. No.84/2015 was collected by them from that bank as it was not encashed. Under such circumstances, the allegations made against this accused either for abating crime or for criminal conspiracy will not survive at all.
63. Coming to the role played by the 3rd accused who is the father of the 2 nd accused, according to me, when the evidence of PW. 5 is gone through, it is self-explanatory to show that even the 3 rd accused who had collected the cheque from Kathyayini at the Adyar Anand Bhavan, HSR Layout, Bengaluru and the Karnataka Lokayuktha police surrounding him, he has not done anything else. In this regard, PW. 5 by name Murali who was with this 3 rd accused when that 2nd trap was laid. In his evidence, this witness speaks that he does not know the 1st 95 Spl.C.C. No.84/2015 accused and he knew the 3rd accused for the last 3 years through his father. According to PW. 5, his father was also a police constable, on one day in the afternoon he and 3rd accused had been to Adiyar Ananda Bhavana hotel at HSR Layout, at that time, 3-4 Lokayuktha officials came near them and enquired him as to what they were doing in that hotel. This PW.5 said to have replied them that he is consuming Tea. But, then PW.5 makes it clear that he does not know whether PW. 3 was present in that hotel on that day or not. This PW. 5 is treated as a hostile witness by the prosecution. But, in the cross- examination conducted by the learned Public Prosecutor, all the suggestions including his statement at Ex.P. 10 came to be denied by him. But, in the cross-examination conducted by the counsel for the 1st accused, he deposes that Ex.P. 96 Spl.C.C. No.84/2015 10 got executed by him not out of his free will or volition, which evidence is already extracted by me in the preceding paras.
64. Under such circumstances, this PW. 5 who was with 3rd accused for the reasons best known has not been arrayed as an accused. In fact, the limited role which the 3rd accused played according to the prosecution was when the 1 st accused calls PW. 3, demands a bribe of Rs. 5 lakhs and insisted that, that cheque has to be handed over to the 3rd accused, then he would help her to come out of the difficult situation. According to PW. 3, the 1st accused sends 3rd accused with PW. 5 to Adyar Anand Bhavan, HSR Layout to collect the said cheque.
65. It is an admitted fact that said cheque given 97 Spl.C.C. No.84/2015 by PW. 3 was in the name of daughter of 3 rd accused by name Smt.Roopashree. So what this Court is unable to understand the fact is, what made PWs.10 and 11 to distinguish or differentiate as to that when PW. 5 can only be a charge sheet witness and Puttaiah can be 3rd accused. The role played by PW. 5 and 3rd accused are one and the same. But, why this differentiation and what were the parameters applied by IOs are not explained. So, this Court is drawing an adverse inference against the said police for the fact that no proper investigation as expected under law has taken place.
66. In the cross-examination of PW. 11, that it was suggested to this witness that PW. 3 is an accused in a murder case, to which, the answer of PW. 11 is that he does not know. Likewise, 98 Spl.C.C. No.84/2015 when it was suggested to PW. 11 in respect of a cheque bounce case, in which this PW. 3 was an accused, even that witness disowns by saying that he does not know. Lastly, according to the 1st accused, one Srinivasa Raju had given a complaint three months before Ex.P. 20 was lodged, again that PW. 11 says that he does not know. So the very fact that all the police case papers relating to PW. 3 were not secured by PW. 11, show that no expected fair enquiry had been undertaken. So, the role of 3 rd accused either in commission of criminal conspiracy or abatement or by cheating by joining hands with the 1 st accused are not found at all.
67. During the course of arguments, the counsel for the accused Nos. 1 to 3 in particular the 1 st accused by relying upon the decisions submitted 99 Spl.C.C. No.84/2015 that all the transcripted conversations between the 1st accused with PW. 3, likewise accused No.3 with PW. 3 cannot be looked into as they are without the certificate as required under Sec.65B of the Indian Evidence Act. As I have stated earlier, the counsel for the 1st accused also found fault with the evidence of PW. 6, who is an expert who has furnished her report and admitted in her cross examination that she has not checked the original device. This PW. 6 admits the same in her cross-examination, which is extracted as under:
" I did not insist the IO to produce the original device before me for my examination.
... I cannot say that there are possibilities of edition, manipulations, deletions while copying from original device."
68. So, under such circumstances, the report of 100 Spl.C.C. No.84/2015 this expert at Ex.P. 18 in respect of MOs. 6to 10 casts aspersions in respect of their genuineness and credibility. So, in this regard, the learned counsel for the 1st accused relied on the decision reported in (2020)7 SCC in the matter between Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantya & others, wherein the Hon'ble Apex Court has held as under:
A. Evidence Act, 1872 -
S.65B(4) r/w Ss.65-B(1) & 65-A and S.22-A - (1) Production of certificate under S.65.B(4) -
mandatory, but only in case of secondary evidence i.e. where primary evidence is not lead/original not produced- Oral admission e.g. by stepping into the witness box qua such document/electronic record-
Non-consideration of, as
compliance with such
mandatory requirement of
production of Sec.65-B(4)
certificate.
-(2) Primary and secondary
evidence qua electronic
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records/documents
-Distinguished between -
original electronic document - How can be produced in Court and proved.
69. Another decision relied upon by him to support the fact that as there was no admission for illegal gratification of the 1st accused. The entire prosecution case in respect of Sec.7 and 13 of the Prevention of Corruption Act, 1988 allegations made against the 1st accused stumbles down. In this regard the decision reported in (2015)11 Supreme Court Cases 314 in the case of C.Sukumaran Vs. State of Kerala held as under:
A. Prevention of Corruption Act, 1988 - Ss.7 and 13(1)(d) r/w Sec.13(2) - illegal gratification - Burden of proof -Demand of illegal gratification by accused is the sine qua non for constituting an offence under Ss.7 and 13(1)
(d) of the PC Act - The burden to prove the accusation for the 102 Spl.C.C. No.84/2015 offence punishable under S.13(1)
(d) with regard to the acceptance of illegal gratification from the complainant lies on the prosecution.
70. One more decision highlighted by the 1 st accused counsel on same analogy reported in the decision reported in 2017(8) SCC 136 Mukhtiar Singh Since (Decd.) vs. The State of Punjab, wherein the Hon'ble Apex Court held as under:
Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - Ss.7 and 13(2) - illegal gratification
- demand and acceptance of - Indispensability of proof of - Bald allegation of complainant regarding demand and acceptance of illegal gratification by accused, remains uncorroborated - Prosecution failed to prove charge leveled against accused beyond all reasonable doubt - Conviction reversed.
71. And lastly, as cited supra, decision reported in (2000)5 Supreme Court Cases 21 in the 103 Spl.C.C. No.84/2015 matter between Meena Vs. State of Maharashtra, wherein the Hon'ble Apex Court held as under:
A.Preventon of Corruption Act, 1947 - Ss.5(1)(d) r/w S.5(2) - Penal Code, 1860 - S.161 -Trap -
Evidence - Charge against appellant Revenue Record Keeper in Collectorate of demanding and accepting Rs.20 as illegal gratification for doing an official act of sending the relevant records to copying section -
Currency note of Rs.20 denomination found to be lying on the pad of the table
-Phenolphthalein test showing positive result - Defence version was that the currency note when attempted to be thrust into appellants hands by PW. 1, appellant pushed it away and in the process the note fell on the pad of the table - one shadow witness in the trap party not examined and another shadow witness treated as hostile by prosecution - other material witness not examined by prosecution- corroboration of trap evidence wanting - Held, mere recovery of the currency note and 104 Spl.C.C. No.84/2015 positive result of the phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence
- charge must be proved beyond reasonable doubt - criminal trial
-prosecution- failure to examine or produce.
72. To support their contention, when looked from these angles that is prosecution failing to prove all beyond reasonable doubt, non- furnishing of certificate under Sec.65B of the Indian Evidence Act, in the absence of demand for illegal gratification by the 1 st accused and lastly mere possession of cheque issued by PW. 3 in favour of Smt.Roopashree by themselves cannot show that accused Nos. 1 to 3 have committed the above said offences. This Court having gone through the above said decisions is of the firm view that they have helped all the 105 Spl.C.C. No.84/2015 accused persons to canvas that when the penal provisions of the Prevention of Corruption Act, 1988 could not have been attracted to the present facts and circumstances of the case, which was wrongly applied and secondly that, as PW. 10 and PW. 11 have over looked important aspects of seizure of mobile phones of accused Nos.1 and 3, but non-seizing the mobile of PW. 3 and her personal assistant Mansoor Ahmed Sadiq which creates strong doubt. In fact, in the evidence of PW. 8, there are materials which shows that at the time of collecting and retracting the data and transferring them to CDs from the mobiles, some improper procedures have been followed. More over, custody of some of the mobiles and non-seizing of mobiles are the doubt raising factors. Under these circumstances, some where in the investigation 106 Spl.C.C. No.84/2015 process, it looks as though concerned officials of the KLA have not applied their mind to the allegations and factual matrix of the case. Under such circumstances, the explanation offered by the 1st accused and Murali at Ex.P. 8 and P.10 cannot be taken on their face value because the legacy of PW. 3 so far as her litigations surrounding her, cheque bounce cases, business and family feud is much older than Ex.P. 20. What was that deciding factor which made PW. 11 to register Ex.P. 20 and lodge Ex.P. 26 is not known. Looked from these angles, the prosecution has failed to prove that the accused Nos. 2 and 3 have committed the offences under Secs.120B, and 203 of the Indian Penal Code. Accordingly, I answer these points No.5 to 7 in the negative.
73. POINT NO.8:- Having gone through the 107 Spl.C.C. No.84/2015 entire material, the prosecution failed to place befitting materials to draw the conviction of the accused persons for the alleged offences. In fact some of the available materials have shown that important elements which are expected that are to be followed by the IO have not been done and the investigation seems to have been undertaken rather in a casual manner and it looked more mechanical in nature. Again it is made very clear that this court has considered Sections.7,12,13(1)(d),13(2) of the P.C. Act,19888 and Secs.120(b), 203 and 419 of the IPC only. So considering other Sections invoked by the P.W.-10 in the charge sheet will not sustain for consideration at all. Hence, having found demerit in this case, I proceed to pass the following:
108
Spl.C.C. No.84/2015 O R DE R The accused Nos.1 to 3 are found not guilty of the offences alleged against them.
Acting under Sec.235 (1) of Cr.P.C., the accused No.1 is hereby acquitted of the offences punishable under Secs.7, 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988 and Secs.419 and 120B of the Indian Penal Code.
The accused No.2 is hereby acquitted of the offences punishable under Sec.12 of the Prevention of Corruption Act, 1988, and under Sec. 120B of the Indian Penal Code.
The accused No.3 is hereby acquitted of the offences punishable under Secs.12 of the Prevention of Corruption Act,1988 and Secs.203 and 120B of the Indian Penal Code.109
Spl.C.C. No.84/2015 The bail and surety bonds of the accused Nos.1 to 3 shall stand hereby discharged.
M.Os. No.1, 4 and 5 are ordered to be returned back to Karnataka Lokayuktha, Bengaluru after completion of the appeal period. M.Os. 6 to 11 & 14 shall be preserved along with this file. M.Os.2 and 3 shall be confiscated to the State after completion of the appeal period. M.O's No. 12 and 13 shall be destroyed after completion of the appeal period.
(Dictated to the judgment-writer, transcripted by her, then corrected, signed and pronounced by me in the open Court on this the 10 th DAY OF DECEMBER 2021).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
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A NN E X U R E
LIST OF WITNESSES EXAMINED FOR
PROSECUTION:
PW.1: F.B.Revannanavar.
PW.2: Lokesh.
PW.3: Kathyayini Shetty.
PW.4: Vijay Kumar.
PW.5: Murali.
PW.6: Shree Vidhya.
PW.7:Satish H.K.
PW.8: M.D.Sharath.
PW.9: V.S.Anil.
PW.10: M.S.Srinivas.
PW.11: Narasimha Murthy.P.
LIST OF DOCUMENTS MARKED FOR
PROSECUTION:
Ex.P.1: Sanction Order.
Ex.P.1(a): Signature of PW.1.
Ex.P.2: Note Sheet of currency number. Ex.P.2(a): Signature of PW.2 Ex.P.2(b): Signature of PW.4.
111
Spl.C.C. No.84/2015 Ex.P.3: Bank challan.
Ex.P.3(a): Signature of PW. 11.
Ex.P.4: Pre-trap mahazar Ex.P.4(a to e): Signatures of Pws.2, CW2, PW.3,CW4 & PW. 11.
Ex.P.5:Mahazar dtd.20-04-2013. Ex.P.5(a to e): Signatures of Pws.2, CW2, PW.3, PW. 11 & CW4.
Ex.P.6: Cheque.
Ex.P.6(a to d): Signatures of Pws.2, PW. 4, PW. 3 and PW. 11.
Ex.P.7: Seized document.
Ex.P.8 : Explanation of accused No.1. Ex.P.8(a to d): Signatures of accused, PW. 2, CW.2 & PW. 11.
Ex.P.9 : Explanation of accused No.3. Ex.P.9(a to d): Signatures of accused, PW. 2, CW.2 & PW. 11.
Ex.P.10 : Explanation of Murali.
Ex.P.10(a to d): Signatures of CW2, PW. 2, CW.5 & PW. 11.
Ex.P.11: Trap Mahazar dtd.22-04-2013. Ex.P.11(a to h): Signatures of PWs.2, CW2, PW. 3, A1, A3, Murali, PW.11 & Munsoor Ahmed. Ex.P.12 : Panchanama dtd.26-04-2013. Ex.P.12(a to c): Signatures of PW.2, CW.2 & PW. 11. 112
Spl.C.C. No.84/2015 Ex.P.13: Script given to A1 for reading. Ex.P.13(a to c): Signatures of PW.2, CW.2 & PW. 11. Ex.P.14: Mahazar dtd.29-04-2013. Ex.P.14(a to d): Signatures of PW.2, CW.2, A1 & PW. 11.
Ex.P.15: Script given to A2 for reading. Ex.P.15(a to c): Signatures of PW2, CW2 & PW. 11. Ex.P.16: Mahazar dtd.10-06-2013. Ex.P.16(a to d): Signatures of PW.2, CW2, A2 & PW. 11. Ex.P.17: CD transcription.
Ex.P.17(a to c): Signatures of PW.2, CW.2 & PW. 11. Ex.P.18: FSL Report.
Ex.P.18(a & b): Signatures of PW. 6 & PW. 10. Ex.P.19: Sample Seal of FSL Lab.
Ex.P.20: Complaint.
Ex.P.20(a): Signature of PW. 3.
Ex.P.21: Portion of 161 statement of PW. 7/CW13. Ex.P.22: Nokia Mobile extraction report. Ex.P.23 : Samsung Note Mobile Extraction report. Ex.P.24: Memo of DSP.
Ex.P.24(a): Signature of PW. 9.
Ex.P.25: Call details.
Ex.P.26: FIR.
113
Spl.C.C. No.84/2015 Ex.P.26(a): Signature of PW11.
Ex.P.27: Requisition to depute officials. Ex.P.27(a): Signature of PW. 11.
Ex.P.28: Office letter of KPTCL to depute officials. Ex.P.29: Acknowledgement by PW. 11. Ex.P.29(a & b): Signatures of PWs. 4 & 11. Ex.P.30: Acknowledgement given by PW. 4. Ex.P.30(a):Signature of PW. 4.
Ex.P.31: Acknowledgement given by PW. 2. Ex.P.31(a & b): Signatures of PWs.2 & 11 Ex.P.32: Covering letter of SP.SCRB, Bengaluru. Ex.P.32(a): Signature of PW. 11.
Ex.P.33: Work allocation details. Ex.P.34: Axis bank SB account details of A2 Ex.P.35: Service particulars of A1. Ex.P.35(a): Signature of PW. 11.
Ex.P.36: ICICI Bank SB account details of Roopashree. Ex.P.36(a): Signature of PW.11.
Ex.P.37: Acknowledgement given by PW. 4 for obtaining seal.
Ex.P.37(a & b): Signature of PWs. 4 & 11. Ex.P.38: Attested copy of complaint. Ex.P.39: Attested copy of FIR.
Ex.P.40 & 41: Certificate under Sec.65B of I.E.Act. 114
Spl.C.C. No.84/2015 Ex.P.40(a): Signature of PW. 8.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Metal Seal.
MO.2 & 3: Mobiles.
MO.4 & 5: Metal Seal.
MO.6 to 11: CDs.
MO. 12: Sample solution. MO.13: Handwash solution of PW. 4. MO.14: CD regarding Pretrap proceedings.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL.
LIST OF DOCUMENTS MARKED FOR ACCUSED:
NIL.
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.