Bangalore District Court
The State Of Karnataka vs Mr. V.Raja Bovi on 28 October, 2016
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 28th OCTOBER 2016.
Spl. C.C.No. 89/2013
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
City Wing, Bengaluru
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr. V.Raja Bovi, Aged 57 years,
S/o Venkatadasappa Bovi,
ASI, Srirampura Police station,
Bengaluru,
R/o No.8/7, 6th Main Road,
8th cross Road, Ganesha Block,
2nd stage, Mahalaxmi Layout,
Bengaluru,
Native of Agasanagrama
Village and Post,
Malavalli Taluk, Mandya District.
(Rep by Sri C.G.Sundar Advocate)
*****
2 Spl. C.C. No.89/2013
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 03-07-2010.
of offence:
3. Date of First Information 03-07-2010.
Report:
4. Date of Arrest: 03-07-2010.
5. Date of Commencement 06-08-2014.
Of recording of evidence:
6. Date of Closing of evidence: 01-09-2016.
7. Date of Pronouncement of 28-10-2016.
Judgment.
8. Result of the case: Accused is acquitted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegations that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The accused, being a public servant, was working as an Assistant Sub-Inspector of Police in Srirampura Police Station, Bengaluru City. One Thyagaraj has lodged a complaint before the 3 Spl. C.C. No.89/2013 Lokayuktha Police on 03-07-2010 alleging that this accused has demanded the bribe amount of Rs.2,00,000/- from him, in order to leave the name of brother of the complainant by name Ambuvelu, in the criminal case registered in Srirampura Police Station in Cr.No.133/2010, in respect of murder of one Palani. The accused has scaled down his demand for Rs.50,000/- and on 29-06-2010, accused has received the part bribe amount of Rs.2,000/- from the complainant. On receiving the said complaint, Lokayuktha Police have registered the FIR in Cr.No.27/2010. The Investigating Officer has secured the shadow witness and panch witness and conducted the pre trap proceedings in their presence. On the same day, trap was laid in between 2.00 p.m. to 2.30 p.m. near M.V.Tailors, Srirampura, while accused was receiving the balance bribe amount of Rs.25,000/-
through one Subramani. Subsequently, accused was caught by the Lokayuktha Police near Muttumariyamma temple circle, Srirampura and accepted bribe amount of Rs.25,000/- was found with this accused. The Lokayuktha Police have conducted the trap proceedings and drawn the trap mahazar in the presence of witnesses and accused was arrested. Thereafter, Investigating Officer has continued further investigation and after completion of investigation, obtained the sanction to prosecute the accused and filed the charge sheet before 4 Spl. C.C. No.89/2013 this court by alleging that the accused has committed the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7, 13(1)(d)R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 9 witnesses as PW.1 to 9 and got marked Ex.P-1 to P-23 documents and MO.1 to 13 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not let in any defence evidence on his behalf.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are: 5 Spl. C.C. No.89/2013
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as ASI in Srirampura Police station, Bengaluru, given false information to the complainant that name of his brother Ambuvelu may be included as accused in Crime No.133/2010 and for the purpose of leaving the name of complainant's brother from the said case, demanded the bribe amount of Rs.2,00,000/- from the complainant and scaled down the demand for Rs.50,000/- and accepted Rs.2,000/- from the complainant on 29-
06-2010 near Shalimar Agarbatti factory and on 03-07-2010 in between 2-30 PM to 2-35 PM, near M.D.Tailers, Srirampura, accused received Rs.25,000/- through CW.2 as an illegal gratification from the complainant, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as a ASI in Srirampura Police station Bengaluru, on 29-06-2010 and on 03-07-2010 abused his official position by illegal means and as a public servant, demanded and accepted the illegal gratification of Rs.27,000/- from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
6 Spl. C.C. No.89/2013
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant, working as an Assistant Sub-Inspector of Police at Srirampura Police Station and he is charged with the offences punishable under Sec.7 and 13 of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority to prosecute him is a statutory and mandatory requirement. Before proceeding to consider the question of validity of sanction, let me state in brief the evidence let in by the prosecution before this court.
10. The prosecution examined the complainant Thyagaraj before this court as PW.1 and he deposed that, during the year 2010, accused was working as an Assistant Sub-Inspector of Police in Sriramapura Police Station and he was also the resident of Sriramapura, Bengaluru. 7 Spl. C.C. No.89/2013 PW.1 further deposed that Ambuvelu is his elder brother and Subramani and B.M. Suresh Babu are his relatives and CW.4 is his elder brother. PW.1 further deposed that, about four years back, four police personnel came to his house and informed that, in connection with the murder case of one Palani, they want to enquire his elder brother Ambuvelu, as deceased Palani and Ambuvelu were friends. PW.1 further deposed that, as he was not present in the house, one of the inmates of his house informed him about the same and accordingly he went to Srirampura Police Station on the next day. PW.1 further deposed that nobody responded in the Police Station and thereafter he spoke to this accused over the phone and he told him that against Ambuvelu no case is pending and accused also told him to pay Rs.25,000/-. PW.1 further deposed that he along with CW.2 borrowed Rs.25,000/- by cash and accused asked Rs.25,000/- and CW.3 informed over the phone that the accused is demanding Rs.25,000/-. PW.1 further deposed that few days later again police came to his house when he was not present. PW.1 further deposed that he lodged the complaint before the Lokayuktha Police and he has not produced any materials along with the complaint. PW.1 further deposed that, as per the directions of the Lokayuktha Police, he produced cash of Rs.25,000/- and some powder were smeared on those currency notes. 8 Spl. C.C. No.89/2013 PW.1 further deposed that three middle aged persons were present in the office of the Police Inspector and one among those persons kept those currency notes in his right pant pocket. PW.1 further deposed that he was asked to contact the accused over the phone by the Lokayuktha Police and when he contacted the accused, he told him to come near K.C. General hospital, Malleswaram Bengaluru. PW.1 further deposed that, he along with the Lokayuktha Police, two Police Constables and three middle aged persons left the Lokayuktha Police office in a Maruthi vehicle and their vehicle was stopped in front of K.C. General hospital. PW.1 further deposed that he got down from the vehicle and contacted the accused over the phone and accused told that he is at nearby hotel. PW.1 further deposed that he met the accused in a hotel and thereafter they boarded an autorikshaw and got down near burial ground at Sriramapura. PW.1 further deposed that CW.2 was secured to that place after talking him over the phone and accused told CW.2 to receive the money from him and accordingly CW.2 has received the money. PW.1 further deposed that thereafter he contacted the Lokayuktha Police, who arrived at the spot within 15- minutes and they went to Sriramapura Police Station, where this accused was not found. PW.1 further deposed that thereafter the accused was found near the petty shop and he was taken to 9 Spl. C.C. No.89/2013 Karumaramma temple and tainted currency notes were seized by the Lokayuktha Police. PW.1 further deposed that when the hand wash of the accused was made in a liquid, it turned into some colour and same was seized in a bottle. PW.1 further deposed that thereafter they returned to the office of Lokayuktha and he was not taken inside the office and he was not allowed to enter the office and nothing was written in his presence. PW.1 further deposed that, after seizure of tainted currency notes, accused immersed one of his hands in a solution and thereafter the accused was brought to the office of CW.19. PW.1 further deposed that button camera fixed to him was seized by Lokayuktha Police and mahazar was not drawn in his presence. PW.1 admitted his signature on Ex.P.7, Ex.P.9 and Ex.P.4.
11. The prosecution has examined CW.2 Subramani as PW.2 and he deposed that PW.1 is his relative and accused was working as Assistant Sub-Inspector in Sriramapura Police Station. PW.2 further deposed that he do not know about PW.1 lodging the complaint before the Lokayuktha Police against the accused. PW.2 further deposed that he along with PW.1 and CW.3 borrowed Rs.25,000/- about three years back and there was demand by the accused to repay the same. PW.2 further deposed that PW.1 gave him Rs.25,000/- in front of tailoring 10 Spl. C.C. No.89/2013 shop of M.D. Bhaskar and he paid that amount to the accused. PW.2 further deposed that since the accused has not received that amount, he kept the same in the left side pocket of the accused and thereafter he left that place and he has not given any statement before the police.
12. CW-5 J. Gopinath was examined as PW.3 and he deposed that he and PW.1 were residing in the very same area. PW.3 further deposed that PW.1 has not borrowed any amount from him and he has not given any statement before the police.
13. The prosecution has examined CW.6 S. Gangadhara as PW.4 and he deposed that he and CW.7 were working in the office of Zilla Panchayath, Bengaluru and on the instruction of their Chief Executive Officer, they appeared before CW.19 on 03-07-2010. PW.4 further deposed that PW.1 Thyagaraj was also present in the office of CW.19 and they were told that their presence is required to assist as witness in the matter of complaint lodged by PW.1. PW.4 further deposed that PW.1 placed 50-currency notes of Rs.500/- each before CW.19 and numbers of those currency notes were entered as per Ex.P.3. PW.4 further deposed that some powder was applied on those currency notes and placed them in the left side pant pocket of PW.1. PW.4 11 Spl. C.C. No.89/2013 further deposed that CW.7 washed his hands in the solution, which turned into pink colour and same was seized. PW.4 further deposed that one compact disc was produced by PW.1 and pre trap mahazar was drawn as per Ex.P.4. PW.4 further deposed that thereafter they left the office of CW.19 in a car and went near K.C.General hospital. PW.4 further deposed that PW.1 went near the hotel called as Moonlight hotel, which is adjacent to K.C.General hospital and thereafter he saw PW.1 talking to the accused. PW.4 further deposed that he was standing about 100-feet away from the accused and PW.1 and thereafter, they boarded an autorikshw and proceeded towards Navarang talkies road. PW.4 further deposed that they boarded another autorikshaw and could not trace out the autoriksha in which accused and PW.1 were gone, because of heavy traffic. PW.4 further deposed that thereafter they received a phone call about PW.1 and accused moving towards tailoring shop at Sriramapura Police Station and they reached there. PW.4 further deposed that PW.1 was present there and informed them that after receiving the money, accused has left for Sriramapura Police Station. PW.4 further deposed that thereafter they went near Sriramapura Police Station and accused was not found there and they stood near a provision store. PW.4 further deposed that at about 2.30 p.m. they saw accused coming out of petty 12 Spl. C.C. No.89/2013 shop, which is about 300-feet away from Sriramapura Police Station and CW.19 and his staff caught hold the accused. PW.4 further deposed that accused took them to the nearby temple and when CW.19 questioned about the tainted currency notes, accused took out the same notes from his right side pant pocket and placed it before CW.19. PW.4 further deposed that CW.7 has taken the tainted currency notes from the right side pant pocket of the accused. PW.4 further deposed that a solution was prepared in two bowls and accused immersed his right hand finger in that solution and accused has immersed his left hand finger in another solution which turned into pink colour. PW.4 further deposed that thereafter they proceeded to the office of CW.19 wherein the pant of the accused was removed and seized. PW.4 further deposed that voice recorder and button camera produced by PW.1 and its contents were transmitted as per Ex.P.5 and 6 and thereafter trap mahazar was drawn as per Ex.P.7. PW.4 further deposed that on 05-07-2010 a mahazar was drawn in the office of CW.19 as per Ex.P.8 and his statement was recorded by the Lokayuktha Police.
14. The prosecution examined CW.7 Dakshinamurthy as PW.5 and he deposed that during July 2010, he was working as First Division 13 Spl. C.C. No.89/2013 Assistant in the office of Chief Executive Officer, Zilla Panchayath, Bengaluru Urban. PW.5 further deposed that, on 03-07-2010 on the instruction of their Chief Executive Officer, he along with PW.4 appeared before CW.19. PW.5 further deposed that PW.1 was present in the office of CW.19 and they were informed that their presence was required as a witness in the matter of complaint filed by PW.1. PW.5 further deposed that PW.1 placed 50-currency notes of 500/- each and their numbers were entered as per Ex.P.3. PW.5 further deposed that phenolphthalein powders were applied on those currency notes and he placed the same in the left side pant pocket of PW.1, after counting the same. PW.5 further deposed that solution was prepared and sample was obtained in a bottle and in the remaining solution, when his hands were washed, solution turned into pink colour and same was seized in a bottle. PW.5 further deposed that CW.19 instructed PW.1 to give the tainted notes to the accused only in case of demand and instructed PW.4 to accompany PW.1 and watch the proceedings between the accused and PW.1. PW.5 further deposed that, a pre trap mahazar was drawn as per Ex.P.4 in the office of CW.19. PW.5 further deposed that thereafter they went in a Maruthi van towards K.C.General hospital, Bengaluru and their vehicle was stopped about 50-meters away from the hospital. PW.5 further deposed that PW.1 14 Spl. C.C. No.89/2013 proceeded towards nearby hotel called Moonlight hotel and PW.4 followed him and they remained in Maruthi car. PW.5 further deposed that PW.1 and accused proceeded in autorikshaw and it was informed by CW.19 that they went near Srirampura temple and when they reached there, they found CW.1, 4 and accused near the temple. PW.5 further deposed that PW.4 took the tainted notes from the right side pant pocket of the accused and those notes were the same notes, which were placed during the pre trap mahazar. PW.5 further deposed that solution was prepared by the Lokayuktha Police near the temple and right hand fingers of the accused were immersed in the solution and finger wash was seized in the bottle. PW.5 further deposed that accused immersed his left hand fingers in another solution, same turned into dirt colour, which was also seized. PW.5 further deposed that they were returned back to the office of CW.19, where pant of the accused was removed and seized. PW.5 further deposed that accused has given the statement before Lokayuktha Police and trap mahazar was drawn as per Ex.P.7. PW.5 further deposed that the contents of the video recordings and button camera were transmitted into sheets as per Ex.P.5 and 6. PW.5 further deposed that a metal seal, which was used during seizure of materials objects, were handed over to him and he has produced the same as M.O.1. PW.5 further 15 Spl. C.C. No.89/2013 deposed that on 05-07-2010, mahazar was drawn near a tailoring shop at Sriramapura as per Ex.P.8.
15. One G.T.Ajjappa, who was examined as PW.6, deposed that from 07-07-2009 to 27-07-2011 he was working as Assistant Commissioner of Police at Malleshwaram, Bengaluru and Sriramapura Police Station was within their jurisdiction. PW.6 further deposed that accused was working as Assistant Sub-Inspector of Police at Sriramapura Police Station and he came to know through the Deputy Commissioner of Police, Bengaluru North, that this accused was trapped on 03-07-2010. PW.6 further deposed that he was instructed by Deputy Commissioner of Police to assist the investigation and accordingly on 05-07-2010 he had been to the chamber of CW.19 and identified the voice of the accused, which was recorded in CD and also identified the visuals, which were recorded in the computer. PW.6 further deposed that, at the time of trap, accused was attached to the crime section of Sriramapura Police Station and he was specifically deputed for detection of theft matters. PW.6 further deposed that duty assigned to the accused had nothing to do with the murder case of Palani.
16 Spl. C.C. No.89/2013
16. CW.19 Krishnappa, who was examined as PW.7, deposed that he was working as Police Inspector in Karnataka Lokayuktha, Police Wing, City Division, Bengaluru, from January 2010 to June 2011. PW.7 further deposed that on 03-07-2010, at about 10.15 a.m. PW.1 has lodged a complaint as per Ex.P.1, on the basis of which he has registered the FIR in Cr.No.27/2010. PW.7 further deposed that he secured CW.4 and 5 and PW.1 placed 50-currency notes of 500/- each. PW.7 further deposed that numbers of those currency notes were entered as per Ex.P.3 and phenolphthalein powder were applied on those currency notes and PW.5 placed the currency notes in the left side pant pocket of PW.1. PW.7 further deposed that Sodium Carbonate solution was prepared and sample was taken from the said solution and in the remaining solution, hand wash of PW.5 was made and said solution turned into pink colour, which was seized separately. PW.7 further deposed that PW.1 has placed a CD along with the complaint and contents of the same was transmitted as per Ex.P.5. PW.7 further deposed that he instructed PW.1 to hand over the tainted notes to the accused in case of demand by the accused and thereafter give the signal by scratching his head. PW.7 further deposed that he handed over button camera to PW.1 and instructed PW.4 to accompany PW.1 and observe the proceedings between the accused 17 Spl. C.C. No.89/2013 and PW.1. PW.7 further deposed that he has drawn pre trap mahazar as per Ex.P.4 and thereafter they left their Police Station in a Maruthi Omni van. PW.7 further deposed that driver of the car stopped the same in-front of K.C.General hospital and thereafter PW.1 contacted the accused over the cell phone and conversation was recorded in the voice recorder. PW.7 further deposed that conversation between PW.1 and accused revealed that accused instructed PW.1 to come near Hopcoms stall, which is near K.C. General hospital and accordingly PW.1 and 4 proceeded towards the Hopcoms stall. PW.7 further deposed that there is a hotel called Moonlight hotel near K.C.General hospital and accused was talking with PW.1 outside the hotel and handed over the cell phone to that person. PW.7 further deposed that thereafter accused and PW.1 proceeded towards the BTS bus stop and moved in autorikshaw and they followed them in another autorikshaw. PW.7 further deposed that they could not follow the autorikshaw and when PW.1 was contacted, he informed that they were near M.D. Bhaskar tailoring shop. PW.7 further deposed that, when they were proceedings towards the M.D.Bhasker tailoring shop, PW.1 informed CW.16 that accused has received the tainted money from father-in-law of PW.1 and proceeded towards Sriramapura Police Station. PW.7 further deposed that they rushed to Sriramapura Police Station and 18 Spl. C.C. No.89/2013 accused was not found in Sriramapura Police Station. PW.7 further deposed that thereafter they noticed that the accused coming towards Sriramapura Police Station along with PW.1 and they apprehended the accused and PW.1 told that the accused has received the money from him. PW.7 further deposed that he disclosed his identity to the accused and accused took them to Muthumariyamma temple circle, which is about one kilometer from Sriramapura Police Station. PW.7 further deposed that accused told that he has kept the tainted notes in the right side front pant pocket and on the instruction, PW.4 taken out the tainted notes from the pant pocket of the accused and numbers of those above notes were corresponding with the numbers mentioned in Ex.P.3. PW.7 further deposed that he prepared the solution with water and sodium carbonate solution in two bowls and obtained sample from the same. PW.7 further deposed that on his instruction accused immersed his fingers of his right hand in the solution, which turned into pink colour and same was seized in two bottles. PW.7 further deposed that, as per his instruction, accused immersed his left hand fingers in the solution kept in another bowl, which turned into dirt colour and same was also seized in two bottles. PW.7 further deposed that there after they left the Police Station and by providing alternate pant to the accused, his pant was removed and same was seized. 19 Spl. C.C. No.89/2013 PW.7 further deposed that accused has given the statement before him as per Ex.P.17 and thereafter he secured PW.2 and accused told him that PW.2 is his younger brother of husband of his younger sister. PW.7 further deposed that PW.1 placed the button camera and its recordings were transmitted into CD and same was seized. PW.7 further deposed that he secured CW.9, who identified the voice of the accused recorded in CD. PW.7 further deposed that he seized the copies of the records in respect of Cr.No.133/2010 as per Ex.P.18 and arrested the accused and produced him before the court. PW.7 further deposed that on 05-07-2010, PW.2 stated that he want to give statement U/s 164 of Cr.P.C. and accordingly he was sent to the court of 17th Additional Chief Metropolitan Magistrate, Bengaluru. PW.7 further deposed that on 05-07-2010 he recorded the statements of PW.1, 4 to 6 and drawn mahazar as per Ex.P.8 near M.D.Bhaskar tailoring shop. PW.7 further deposed that on 06-07-2010 he recorded the statements of CW.3, PW.6, CW.16 and 17. PW.7 further deposed that on 03-07-2010 he recorded the statement of PW.2. On 07-07- 2010 PW.1 and CW.3 come forward to give their statements and they were sent before 17th Additional Chief Metropolitan Magistrate, Bengaluru, for recording the statement U/s 164 Cr.P.C. PW.7 further deposed that he recorded the statement of CW.18 on the same day. 20 Spl. C.C. No.89/2013
17. CW.20 Raghavendra Auradkar was examined as PW.8 and he deposed that during May 2013 he was working as Commissioner of Police, Bengaluru and vide letter dt:26-04-2013 ADGP, Lokayuktha Police has sought the sanction to prosecute this accused. PW.8 further deposed that, along with the said letter, copy of the complaint, FIR, pre trap mahazar, trap mahazar, chemical examination report, sketch, statements of witnesses and copies of the report touching the allotment of the work of the accused, transmission of the conversation, call details and explanation of the accused were sent to him. PW.8 further deposed that he has gone through the records and also secured the Investigating Officer and had the discussion with him touching the credibility of the above documents. PW.8 further deposed that after going through the above papers and discussion with the Investigating Officer, he found prima facie case against the accused for the offences punishable under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. PW.8 further deposed that at the time of commission of offences, accused was working as Assistant Sub-Inspector of Police at Sriramapura Police Station and Police Commissioner, Bengaluru is the authority empowered to appoint and dismiss the public servant in the cadre of ASI. PW.8 further deposed 21 Spl. C.C. No.89/2013 that he was then conferred upon with the powers to accord the sanction in the capacity of disciplinary authority and accordingly he has accorded the sanction to prosecute the accused as per Ex.P.19.
18. CW.14 Smt. S. Nagashree, who was examined as PW.9, deposed that during July 2010 she was working as 17th Additional Chief Metropolitan Magistrate, Bengaluru and on 07-07-2010 she received a requisition from PW.7 for recording the statement of PW.2 Subramani U/s 164 Cr.P.C. PW.9 further deposed that on 07-07-2010 she received a requisition for recording the statement of one Thyagaraj and one B.M. Suresh Babu, under Sec.164 of Cr.P.C. PW.9 further deposed that on 05-07-2010 CW.18 brought before PW.2 and she has recorded his statement as per Ex.P.20. PW.9 further deposed that on 07-07-2010 CW.18 brought before her one Tyagaraj and CW.3-Suresh Babu and she has recorded their statements as per Ex.P.21 and Ex.P.22.
19. There is no dispute that the accused is a public servant working as an Assistant Sub-Inspector of Police in Sriramapura Police Station at the time of trap and also at the time of filing the charge sheet. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential 22 Spl. C.C. No.89/2013 requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
20. In order to prove the sanction and validity of sanction, prosecution examined CW.20 Raghavendra Auradkar as PW.8, who deposed about he receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.8 further deposed that he has gone through the records and also had discussion with the Investigating Officer regarding the credibility of those documents. PW.8 further said that, by going through the documents he prima facie satisfied about the commission of offences by the accused under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 and accordingly issued the sanction as per Ex.P.19. PW.8 further deposed that, he being the Police Commissioner is the authority to appoint and dismiss the officials in the cadre of Assistant Sub-Inspector of Police. Therefore, he is the competent authority to accord the sanction to prosecute the accused.
21. The evidence of PW.8 was not at all challenged by the accused by cross examining him, in disputing the authority of PW.8 to 23 Spl. C.C. No.89/2013 issue sanction and application of his mind by him before issuing the sanction. In-fact, at present there is no dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.8 to prosecute the accused No.2.
22. In-fact initially the Lokayuktha Police have filed the charge sheet before this court by obtaining the sanction from the Deputy Commissioner of Police, Bengaluru City and said charge sheet was registered in Spl.C.C.No.296/2010. During the pendency of that case, accused filed the application under Sec.227 of Cr.P.C. for his discharge on the ground that Deputy Commissioner of Police is not the competent authority to accord the sanction to prosecute this accused. My Learned Predecessor in Office, vide Order dated:28-03-2013, has allowed that application and the accused was discharged for the present, with a liberty for the Investigating Officer to file a fresh charge sheet by obtaining the sanction from the competent authority. In view of the said order, after obtaining the sanction from the Commissioner of Police, Bengaluru, this fresh charge sheet was filed before this court. There is no dispute regarding the authority of CW.20 24 Spl. C.C. No.89/2013 to accord the sanction to prosecute the accused, being a Commissioner of Police, Bengaluru. There is also no dispute regarding application of mind by CW.20 before according the sanction to prosecute the accused. In-fact there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charges against the accused. Under such circumstances, one cannot say that CW.20 has not applied his mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 & 3:
23. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as an Assistant Commissioner of Police in Srirampura Police Station, gave a false information to the complainant that his brother Ambuvelu would be added as an accused in Cr.No.133/2010, which was registered in respect of murder of one Palani and thereafter, accused demanded the 25 Spl. C.C. No.89/2013 bribe amount of Rs.2,00,000/- and scaled down his demand for Rs.50,000/-, so as to delete the name of the brother of the complainant as accused in that case and received the bribe amount of Rs.2,000/- on 29-06-2010 and Rs.25,000/- on 03-07-2010 when he was trapped by the Lokayuktha Police.
24. In order to bring home the guilt of the accused under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, accused can be held as guilty of committing the offences punishable under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
25. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon 26 Spl. C.C. No.89/2013 the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
26. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC 27 Spl. C.C. No.89/2013 (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
27. It is the arguments for the accused before this court that in respect of the complainant, no official act is pending before the accused or to be done by the accused. Therefore, according to the accused, question of demand and acceptance of illegal gratification for the purpose of doing any official act, would not arise. According to the accused, allegations made against him is that, he has demanded the bribe amount for deleting the name of brother of the complainant as an accused in Cr.No.133/2010, which was registered in respect of murder of one Palani. This accused is not the Investigating Officer of 28 Spl. C.C. No.89/2013 Cr.No.133/2010 and brother of the complainant Ambuvelu was not the accused in that case. Under such circumstances, accused deleting the name of said Ambuvelu from that case do not arise. Hence, it was argued by the learned counsel for the accused that, no official act relating to the complainant is to be done or pending before the accused, so as to demand and accept the bribe from the complainant.
28. The learned Public Prosecutor, Sri. S.P.Hubballi fairly conceded during the course of his arguments before this court that, no official act relating to the complainant is to be done by the accused or pending before the accused. Therefore, Sec.7 of the Prevention of Corruption Act is not at all attracted. However, it was submitted by the learned Public Prosecutor that, though no official act has to be performed by the accused, still there is admission and evidence regarding the acceptance of the bribe amount by the accused from the complainant. Therefore, accused has to be convicted for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
29. By making the above submission, learned Public Prosecutor has admitted that the accused has got no official act to be done in respect of the complainant. Apart from the above submission made by 29 Spl. C.C. No.89/2013 the learned public prosecutor, evidence on record also discloses that the accused got no official act or duty to be performed in favour of the complainant. As per the complaint allegations and prosecution, demand of bribe amount by the accused is to delete the name of the brother of accused Ambuvelu from Cr.No.133/2010. If any person, who can delete the name of complainant's brother from the said case is the Investigating Officer of that case. Moreover, if the brother of complainant Ambuvelu is suspected as the accused in that case, question of including him or thereafter deleting him would arise.
30. Now it is relevant to consider the evidence of PW.6 one G.T. Ajjappa, who was then Assistant Commissioner of Police at Bengaluru, within whose jurisdiction Sriramapura Police Station is located. PW.6 was examined by the prosecution to prove that, recordings in the button camera and voice recorder was shown to him and he identified the accused in those recordings and his voice. Apart from deposing about the recordings shown to him, PW.6 deposed that, at the time of trap, accused was attached to the crime section of Sriramapura Police Station and deputed for detection of theft matters. PW.6 also deposed that duty assigned to the accused has nothing to do with the murder case of Palani. So, senior official of the accused said that this accused 30 Spl. C.C. No.89/2013 has nothing to do with the criminal case registered in respect of murder of Palani. During the course of his cross-examination, PW.6 deposed that Ambuvelu was not the accused in the murder case of Palani. All the above statement of PW.6 proves that complainant's brother Ambuvelu was not the accused in the murder case of Palani and accused has nothing to do with the investigation of criminal case registered regarding murder of Palani, as the accused was attached to the crime section and detection of theft matters. When the accused has no official role to play in respect of Cr.No.133/2010, question of he deleting the name of complainant's brother and demanding the bribe amount for that purpose appears to be improbable and unacceptable.
31. Now it is relevant to refer the cross-examination of Investigating Officer, who was examined as PW.7. In page 8 of his cross-examination, PW.7 specifically deposed that, as per the documents collected by him, this accused has not investigated the case in Cr.No.133/2010. When this accused is not the Investigating Officer of Cr.No.133/2010, question of he deleting the name of complainant's brother and demanding the bribe for doing the same, would not arise. Considering all these aspects, I have to say that the prosecution has failed to prove one of the important requirements to 31 Spl. C.C. No.89/2013 attract Sec.7 of the Prevention of Corruption Act 1988, i.e. demand and acceptance of the bribe amount from the complainant for doing any official act in favour of the complainant.
32. Regarding official act pending before the accused as one of the essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise. The Hon'ble High Court of Karnataka has reiterated the same view in recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the 32 Spl. C.C. No.89/2013 above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, theory of the prosecution in the case on hand cannot be accepted, since no official work is pending before the accused, relating to the complainant. According to me, on this score alone, prosecution case must fail. Even if the prosecution proves the demand and acceptance of the bribe amount, when the official act is not pending before the accused, said demand and acceptance of bribe amount cannot be considered as an illegal gratification.
33. Now let me proceed with my discussion by assuming that an official act is pending before the accused, as on the date of filing the complaint. The next important factor which has to be considered by this court is the alleged demand of bribe amount. Regarding demand of bribe amount, prosecution mainly relies upon the complaint allegations, evidence of the complainant and the recordings made by the complainant in a voice recorded regarding the conversation between him and the accused, when the accused demanded the bribe amount from him.
33 Spl. C.C. No.89/2013
34. So far as the complaint allegations and evidence of the complainant is concerned, they are totally contradictory to each other regarding the demand of bribe amount and the manner in which the demand is made. During the course of his evidence, complainant/ PW.1 deposed that some four police personnel's from Sriramapura Police Station came to his house and enquired about his brother Ambuvelu and he was not present at the time of visit of those police personnel's to his house. PW.1 further deposed that, thereafter he went to the Sriramapura Police Station wherein nobody responded to him and thereafter he spoke to the accused over the phone and accused said that no case is pending against Ambuvelu. PW.1 further said that accused told him to pay Rs.25,000/- to him. PW.1 never deposed in his evidence that the accused demanded the bribe amount from him so as to delete his brothers name from a criminal case.
35. But, in the complaint, which is marked as per Ex.P.1, it was alleged that one Sureshbabu/CW.3 has informed to one Subramani/CW.2 that accused has demanded Rs.2,00,000/- for deleting the name of Ambuvelu and said Subramani told complainant about the same and complainant shown his inability to pay Rs.2,00,0000/- and agreed to pay Rs.50,000/- and thereafter he 34 Spl. C.C. No.89/2013 contacted Suresh Babu, who has not received his call and thereafter complainant called accused, who has told him to meet him along with Suresh Babu and thereafter complainant met Suresh Babu, who took him before the accused and on that day, complainant paid Rs.2,000/- to Suresh Babu, who in turn handed over the same to the accused. So the oral testimony of PW.1 is totally inconsistent and contradictory to the complaint allegations regarding the alleged demand of bribe amount by the accused and manner in which it was demanded. Complainant has not deposed about what he has alleged in the complaint. What was alleged in the complaint was not deposed on oath by the complainant.
36. Now it is relevant to refer some of the statement given by the complainant/PW.1 during the course of his cross-examination. In page 7 of the cross-examination, PW.1 has admitted the suggestion put to him that the accused asked money from his brother, which was earlier given to his brother as remuneration and he mistook the said demand made by the accused as bribe amount and therefore he approached the Lokayuktha Police.
37. In page 8 of his cross-examination, again PW.1 admitted the suggestion put to him that earlier to the trap and also on the date of 35 Spl. C.C. No.89/2013 trap, accused has not demanded the bribe amount from him. So during the course of his cross-examination, complainant/PW.1 has deposed quite against his complaint allegations and also against his examination in chief, by saying that no demand was made by the accused before the trap and at the time of trap. PW.1 also said that, since the accused has asked them to repay the money, which was paid to his brother, he misunderstood the said demand as the bribe. Though all these statements were given by PW.1 during the course of his cross-examination, no suggestions were put to PW.1 to say that he is deposing falsely and that he has been won over the accused to say so. There is no oral evidence in support of the allegations made in the complaint, as complainant himself has not deposed as per complaint allegations. Rather, he deposed quite against to the complaint allegations. So, prosecution miserably failed to prove the demand of bribe amount by the accused, either through the complainant allegations or through the evidence of complainant.
38. One more evidence on which the prosecution relied upon to prove the demand is the recordings in the voice recorder, which was handed over by the complainant to the Lokayuktha Police at the time of lodging the complaint. The transcription in the recordings was 36 Spl. C.C. No.89/2013 entered as per Ex.P.5 and said recording was transmitted into CD and same was seized. The electronic evidence produced by the prosecution regarding the recordings in the voice recorder or the subsequent recordings at the time of trap, made in the button camera and the voice recorder cannot be admitted in evidence in this case since there is no certificate annexed to those electronic evidence as required under Sec.65(B) of the Indian Evidence Act 1872. When no such certificate is produced along with electronic evidence produced before the court, such electronic evidence can not be admitted in evidence, in view of the decision of Hon'ble Supreme Court reported in 2015 (1) Supreme Court Cases (Cri) 24 (Anwar PB Vs P.K. Basheer and others). As per the ratio laid down in the above decision, when the secondary evidence of the electronic recordings are produced before the court, they cannot be admitted in evidence unless the secondary evidence is accompanied by the certificate u/Sec. 65 (b) of the Indian Evidence Act. In this particular case, prosecution has not produced the primary evidence relating to the electronic documents, as the voice recorder and button camera were not produced before this court. The prosecution has produced only secondary evidence of the electronic records and they are not accompanied by the certificate as required u/Sec. 65(B) of the Indian Evidence Act. Hence, this court cannot 37 Spl. C.C. No.89/2013 accept all these electronic evidence produced by the prosecution before this court. This reasoning would apply not only to the voice recorder produced by the complainant at the time of complainant, but also applies to the subsequent recording made in the button camera and voice recorder at the time of trap, as in respect of those electronic evidence also, no primary evidence is produced and secondary evidence is not accompanied by the certificate under Sec.65(B) of the Indian evidence Act. Considering all these aspects I have to say that the prosecution has miserably failed to prove the demand of bribe amount made by the accused, which is also one of the essential requirements to attract the commission of offence under Sec. 7 of the Prevention of Corruption Act 1988.
39. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. The Hon'ble Supreme Court has reiterated the same view in a 38 Spl. C.C. No.89/2013 subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. As the prosecution failed to prove the alleged demand of illegal gratification made by the accused, by leading cogent and convincing evidence, on this score also, accused has to be acquitted.
40. Now let me consider the next question regarding the acceptance of the bribe amount. In order to prove the acceptance of the bribe amount, prosecution relied upon the pre trap proceedings conducted by them in the presence of complainant and CW.5 and 6, drawing the pre trap mahazar and they are also relying upon the evidence of shadow witnesses and panch witnesses, who are examined before this court as PW.4 and 5. The prosecution also relied upon the positive phenolphthalein test of the hand wash of the accused, as it proves the accused receiving the tainted currency notes. It is on the basis of all these, it was contended by the prosecution that it has proved the acceptance of the tainted currency notes by the accused.
41. Of-course the prosecution has proved the pre trap proceedings conducted by them and drawing of the pre trap mahazar 39 Spl. C.C. No.89/2013 immediately after receipt of the complaint and registration of the FIR. Regarding the pre trap proceedings conducted by the Investigating Officer, there is evidence of complainant, who was examined as PW.1 and there is also the evidence of PW.4 and 5 and also the evidence of Investigating Officer, who was examined as PW.7. In respect of pre trap proceedings and drawing of pre trap mahazar, there is no such cross-examination to all these witnesses. Therefore, I have to accept their oral testimony regarding conducting the pre trap proceedings and drawing of pre trap mahazar.
42. Apart from conducting of pre trap mahazar and drawing pre trap proceedings, prosecution has to prove that the accused has received the tainted currency notes and it was received as the bribe amount. In-fact, there is no dispute as such about the accused receiving the tainted currency notes and he possessing the same at the time of trap. There is also no dispute about conducting of the phenolphthalein powder and sodium carbonate solution test by washing the fingers of the accused and finger wash turning into pink colour. However, the defence of the accused is that, tainted currency were not received by him as the bribe amount. Rather, it was the 40 Spl. C.C. No.89/2013 repayment of the loan amount by the complainant and his relative CW.2 Subramani.
43. In view of this defence taken by the accused, much discussion regarding accused receiving the tainted currency notes and recovery of the same from him and regarding positive phenolphthalein test is not necessary. Rather, prosecution has to prove that it was received by the accused as illegal gratification. But, mere receipt of the tainted currency notes and accused possessing the same at the time of trap in itself would not prove that he has received the same as an illegal gratification or bribe. As I said earlier, there should be evidence to show that the bribe amount was demanded by the accused and that the demand was made so as to do or not to do any official act by the accused. In view of my earlier discussion, prosecution has failed to prove the demand of bribe amount made by the accused and official act relating to the complainant being pending before the accused. When these two important factors were not proved by the prosecution, mere accused accepting the tainted currency notes or he is in possession of the tainted currency notes at the time of trap, cannot be a ground to hold that he has received the same as an illegal 41 Spl. C.C. No.89/2013 gratification and to draw the presumption in favour of the prosecution and to shift the burden and onus on the accused.
44. In this regard it is necessary to refer the decision of Hon'ble Supreme Court reported in 2015 SCC Online SC 814 (2015 AIR SCW 526) (P. Sathyanarayana Murthy V/s District Inspector of Police and another). It was held in the above decision that, mere possession and recovery of currency notes from accused without proof of demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
45. Same view expressed by the Hon'ble High Court of Karnataka in the above referred decision in 2012(1) KCCR 414 (R. Malini V.s State of Karnataka), wherein it was held that, mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused, in the absence of any demand and acceptance of the amount as an illegal 42 Spl. C.C. No.89/2013 gratification. Mere acceptance of money by the accused will not be sufficient to fasten the guilt. It was further held in the above decision that, it is not the passing of money alone which establishes a Corruption charge, because the grave-men of the offence lies in the fact that much was paid for a corrupt purpose and it is that aspect which is paramount.
46. The Hon'ble Supreme Court again in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka) held that mere possession and recovery of currency notes from the accused without proof of demand would not attract the offences u/Sec.13 of the Prevention of Corruption Act 1988.
47. The learned Public Prosecutor has argued before this court that even though Sec. 7 of the Prevention of Corruption Act 1988 is not attracted to this case, because of there being no official act pending before the accused, since he has received the bribe amount, he can be convicted for the offences punishable under sections 13 of the Prevention of Corruption Act 1988. For this submission, answer was given in the above referred decision, wherein it was held that mere possession and recovery of the currency notes, without proof of demand would not attract the offences u/Sec. 13(1)(d) of the 43 Spl. C.C. No.89/2013 Prevention of Corruption Act 1988. So even to convict the accused for the offences punishable under Sec.13 of the Prevention of Corruption Act 1988, there must be evidence to show that the accused has demanded the bribe amount and accepted the same, which is not proved by the prosecution in the case on hand.
48. In view of the ratio laid down in all these decisions, it is not just and proper to convict the accused on mere proof of receipt of the tainted currency notes or accused possessing the tainted currency notes at the time of trap. The prosecution has to prove that as per the demand made by the accused, tainted currency notes were handed over to the accused as illegal gratification. So far as the demand is concerned, the prosecution has failed to prove the same.
49. Now I have to consider as to whether the prosecution has proved that the acceptance of the bribe or the tainted currency notes by the accused is an illegal gratification. Again the evidence available before this court in this regard is only the evidence of the complainant, who was examined as PW.1. During the course of his evidence complainant/PW.1 said that after they met near a hotel in front of K.C.General hospital, accused took him in an autorikshaw and they got down near a burial ground at Sriramapura and CW.2 was secured to 44 Spl. C.C. No.89/2013 that place, after contacting him over phone and accused told CW.2 to receive the money from him and accordingly he gave the money to CW.2. PW.1/complainant further deposed that he do not know as to whether the accused has received those tainted currency notes from CW.2 or not. PW.1 never said that the accused has demanded that money as bribe and he paid the same as illegal gratification or bribe amount to the accused. The evidence of complainant is also not clear as to whether accused has actually received those currency notes.
50. If the accused has demanded the said amount as a bribe or an illegal gratification, he would have directly received the same from the complainant when they met near hotel in front of K.C.General hospital. There was no reason for the accused to take him to Sriramapura and secure CW.2 and ask the complainant to pay the said amount to CW.2. All these incidents and developments, coupled with evidence of PW.2 would supports the defence of the accused that amount was received towards repayment of the hand loan and it is not as bribe or an illegal gratification. The prosecution examined CW.2 as PW.2 and during the course of his evidence, he deposed that he along with PW.1 and CW.3 borrowed the loan of Rs.25,000/- from the accused and accused demanded them to repay the same and 45 Spl. C.C. No.89/2013 accordingly in front of tailoring shop of M.D.Bhaskar near Srirampura, PW.1 gave Rs.25,000/-to him and accused has not received the same and subsequently he kept the said amount in the left pocket of the accused. So the evidence of PW.2 would also support the case of the accused that amount received by the accused or tainted currency notes found in his possession was relating to the payment of the loan and not as the bribe amount or an illegal gratification. There being no official work pending before the accused and there being no cogent and convincing evidence regarding demand of bribe amount by the accused, would also makes this court to believe the version of the accused that the receipt of the amount by him is towards the repayment of loan amount.
51. Immediately after the trap, accused was called open to give his explanation regarding the amount found with him. The accused has given his explanation, which is marked as per Ex.P.17. Even in that explanation the accused said that he has not demanded the bribe amount from complainant and the amount which was found with him at the time of trap was relating to the repayment loan amount advanced by him and not bribe amount. So the defense of the accused that amount received by him is towards the loan amount is not a 46 Spl. C.C. No.89/2013 defence which was taken during the course of trial and it is not an afterthought. Even at the time of trap or immediately after the trap accused has stated in his defence statement that he has not demanded or accepted the bribe amount and amount found with him is the loan amount advanced by him. This defence of the accused is proved with the oral testimony of PW.1 and 2.
52. This court can accept that defence, in the absence of evidence to prove the demand and acceptance of the bribe amount or an illegal gratification by the accused and there being no official act pending before the accused. If there is some official act pending before the accused relating to the complainant, question of he demanding the bribe amount would arise. If there is demand of bribe amount by the accused then he possessing the tainted currency notes would have been presumed that it was received as a bribe or as an illegal gratification. In the absence of any evidence to show the demand of bribe amount by the accused or official act being pending before the accused, mere acceptance of the amount or accused possessing the tainted notes cannot be said as bribe amount or an illegal gratification.
53. In this particular case, there is no evidence of shadow witnesses to prove the acceptance of the amount as an illegal 47 Spl. C.C. No.89/2013 gratification by the accused. In-fact CW.6 was directed to act as a shadow witness by the Lokayuktha Police. Accordingly, he accompanied the complainant, when he proceeded to meet the accused near K.C. General hospital. When the complainant met the accused, they proceeded in an autorikshaw towards Sriramapura, because of which shadow witness unable to follow them and unable to accompany the complainant, at the time of payment of the tainted currency notes. Shadow witness was subsequently taken to the spot by the Investigating Officer. Shadow witness was not with the accused or the complainant at the time of handing over of the tainted currency notes. Hence, he is unable to say as to whether the payment of tainted currency notes was as an illegal gratification or it was paid as demanded by the accused. So, it is a case wherein the prosecution had no benefit of evidence of shadow witness to prove the handing over of tainted currency notes as an illegal gratification.
54. The complainant and shadow witnesses have not fully supported the prosecution case. Therefore, they were treated as hostile witnesses by the learned Public Prosecutor and all these witnesses were cross-examined by the learned Public Prosecutor. Since all these witnesses have not supported the case of prosecution, it has 48 Spl. C.C. No.89/2013 summoned CW.14, who was then 17th Additional Chief Metropolitan Magistrate, Bengaluru and she recorded the statement of complainant, CW.2 and CW.3 under Sec. 164 of Cr.P.C. Of-course CW.14, who was examined as PW.9, deposed that CW.1 to 3 have voluntarily have given their statement U/s 164 of Cr.P.C. But, on the basis of the evidence of PW.9, prosecution cannot prove the guilt of the accused. It was held by the Hon'ble High Court of Karnataka in a decision reported in 2006 Crl.L.J. 4813 (P. Diwakara V/s State of Karnataka) that, statement of witnesses recorded by the Magistrate under Sec. 164 of Cr.P.C. is not a substantive piece of evidence. Rather it can be used to either to corroborate or to contradict and no conviction can be placed on the basis of the statement of witnesses recorded by the Magistrate under Sec. 164 of Cr.P.C. Therefore the evidence of PW.9 would not help the prosecution in any way, when PW.1 and 2 have not supported the prosecution case to prove the alleged demand and acceptance of the bribe amount by the accused.
55. The careful scrutiny of the evidence of PW.1, 4 and 5 goes to show that they are not consistent with each other. There is no corroboration for the evidence of these witnesses. When there is no 49 Spl. C.C. No.89/2013 corroboration for the evidence of complainant or the shadow witnesses' conviction cannot be based in the cases like. This view of mine is based upon the decision of Hon'ble Supreme Court reported in 2011 (2) Supreme Court Cases (Cri)1010 (State of Kerala and another V/s C.P.Rao), 1974 Supreme Court Cases (Cri) 73 (Darshan Lal V/s The Delhi Administration), 1981 Supreme Court Cases (Cri) 586 (Gulam Mahmood A. Malek V/s State of Gujarat), 2010 (2) Supreme Court Cases (Cri) 864 (Banarsi Dass V/s State of Hariyana), 2006 (3) KCCR 1422 (Manjunath Basappa Basavamurthy V/s The State of Karnataka), 2006 (3) KCCR 1445 (State of Karnataka V/s K.T.Hanumanthaiah) and AIR 2016 Supreme Court 298 (Krishnan Chander V/s State of Delhi).
56. Apart from that, even while drawing the trap mahazar there are some irregularities committed by the Investigating Officer by recording the statement of witnesses in the mahazar. The statement of witnesses cannot be incorporated in the mahazar or panchanama as held by the Hon'ble Supreme Court in a decision reported in 1983 (1) Crimes 214 (Naginlal Nandlal V/s State). The Hon'ble High Court of Karnataka has also expressed the same view in a recent decision 50 Spl. C.C. No.89/2013 reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru).
57. The learned Public Prosecutor has argued before me that the plea of the accused that the tainted currency notes received by him is relating to the loan amount was not proved by the accused and the accused has taken inconsistent plea in this regard, which cannot be accepted by this court. It is true that the plea of the accused regarding he receiving the tainted currency notes as a loan amount is some what inconsistent. But, on that score, this court cannot hold that the amount received by him is the bribe amount or an illegal gratification, when the prosecution has not discharged the initial burden of proving the demand of bribe by the accused and the official act relating to the complainant being pending before the accused. As I said earlier, even while giving his explanation in writing as per Ex.P17 accused has said that the amount received by him is the loan amount and not the bribe amount. The Investigating Officer/PW.7, during the course of his cross-examination at page 10 specifically admitted that he has not conducted any independent investigation regarding defence taken by the accused. The rule of fairness on the part of Investigating officer wants that he has to conduct the investigation not only in respect of 51 Spl. C.C. No.89/2013 the complaint lodged by the complainant but also in respect of the defence taken by the accused. Having not conducted the investigation regarding the defence of the accused, now the prosecution cannot contend that the defence of the accused is totally a false one. Though the accused has not let-in convincing evidence regarding the defence taken up by him about the receipt of tainted currency notes as loan amount, still there is no reason to disbelieve his defence since the prosecution failed to prove the demand of bribe amount by the accused and no official act was pending before the accused so has to demand the bribe amount. Under such circumstances, one can easily accept the version of the accused that the receipt of tainted currency notes by him is towards the repayment of the loan amount and not the bribe amount.
58. As per the decision of Hon'ble Supreme Court reported in 2015 Supreme Court Cases online 814 (Sathyanarayana Murthy V/s District Inspector of Police) and recent decision of Hon'ble High Court of Karnataka reported in 2016(1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police), when two views are possible in criminal case, one in favour of the prosecution and other in favour of the accused, later would normally 52 Spl. C.C. No.89/2013 prevail. In this particular case, regarding the accused possessing tainted currency notes with him at the time of trap, though two views are possible, the court has to prevail upon the view in favour of the accused and not in favour of the prosecution.
59. To sum-up my discussion, prosecution has failed to show that the official act is pending before the accused in respect of the complainant so as to demand and accept the bribe amount. The prosecution has failed to prove the demand of bribe amount by the accused, which is an essential requirement to prove the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. Though the acceptance of the tainted currency notes by the accused was admitted and proved by the prosecution, it has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. On the other hand, there are circumstances before this court which clearly indicate that that amount was received towards the repayment of the loan. There is no corroboration for the evidence of the complainant, as shadow witness unable to accompany the complainant while handing over the tainted currency notes to the accused. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under 53 Spl. C.C. No.89/2013 Sec.7 and 13 of the Prevention of Corruption Act 1988, by leading cogent, concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative.
POINT No.4:
60. In view of my findings on the above points, accused deserves to be acquitted. Accordingly, I proceed to pass the following order:
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and that of his surety stands cancelled.
MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period.
MO.2 to 12 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.54 Spl. C.C. No.89/2013
MO.13 is ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 28th day of October 2016) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Thyagaraj PW.2: Subramani PW.3: J. Gopinath PW.4: S. Gangadhara PW.5: Dakshinamurthy A.M.B. PW.6: G.T.Ajjappa PW.7: Krishnappa PW.8: Raghavendra Auradkar PW.9: Smt. S. Nagashree.
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Portion of the statement of CW.2 Ex.P.2: Portion of the statement of CW.5 Ex.P.3: Currency details sheet 55 Spl. C.C. No.89/2013 Ex.P.3(a & b): Signature of PW.4 and 5 Ex.P.4: Pre trap mahazar Ex.P.4(a) to (e): Signatures of PW.4 Ex.P.4(f) to (k): Signatures of PW.5 Ex.P.4(l): Signature of PW.1 Ex.P.4(m): Signature of PW.7 Ex.P.5: Voice recorder transcription sheets (3) Ex.P.5(a) to (c): Signatures of PW.4. Ex.P.5(d) to (f): Signatures of PW.5. Ex.P.5(g) to (i): Signatures of PW.7. Ex.P.6: Button camera transcription sheets(3) Ex.P.6(a) to (c): Signatures of PW.4 Ex.P.6(d) to (f): Signatures of PW.5 Ex.P.6(g) to (i): Signatures of PW.7 Ex.P.7: Trap mahazar Ex.P.7(a) to (k): Signatures of PW.4 Ex.P.7(l) to (v): Signatures of PW.5 Ex.P.7(w): Signature of PW.1. Ex.P.7(x): Signature of PW.7. Ex.P.8: Mahazar Ex.P.8(a): Signature of PW.4. Ex.P.8(b): Signature of PW.5. Ex.P.8(c): Signature of PW.1. Ex.P.8(d): Signature of PW.7. Ex.9: Complaint.
Ex.P.9(a): Signature of PW.1. Ex.P.10: Portion of the statement of PW.1 Ex.P.11: Portion of statement of PW.1 56 Spl. C.C. No.89/2013 Ex.P.12: Portion of the statement of PW.1 Ex.P.13: Portion of the statement of PW.1 Ex.P.14: Portion of the statement of PW.1 Ex.P.15: Portion of the statement of PW.1 Ex.P.16: FIR in Cr.No.27/10 Ex.P.16(a)&(b): Signatures of PW.7 Ex.P.17 : Statement of the accused Ex.P.18: Copies of records in Cr.No.133/2010 of Srirampura Police Station. Ex.P.19: Sanction order Ex.P.19(a): Signature of PW.8 Ex.P.20: Statement U/s 164 Cr.P.C. of PW.2 Ex.P.20(a&b): Signatures of PW.9 Ex.P.20(c) & (d): Signature of PW.2 Ex.P.21: Statement U/s 164 Cr.P.C. of PW.1 Ex.P.21(a) to (e): Signatures of PW.9 Ex.P.21(f) to (i): Signatures of PW.1 Ex.P.22: Statement U/s 164 Cr.P.C. of PW.3 Ex.P.22(a) to (c): Signatures of PW.9 Ex.P.22 (d) to (f): Signature of CW.3. Ex.P.23: Chemical examination report.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: 'P' metal seal MO.2: Sample solution bottle (Pre trap) MO.3: Hand washes of witness/Dakshinamurthy MO.4: Sample solution bottle (Trap) 57 Spl. C.C. No.89/2013 MO.5: Right hand wash of accused solution MO.6: One more solution of right hand wash of accused MO.7: Left hand wash of accused solution MO.8: One more solution of left hand wash of accused MO.9: Cover MO.10: Pant MO.11: Cover MO.12: CD -button camera data MO.13: Cash LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 58 Spl. C.C. No.89/2013 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The bail bond executed by the accused and that of his surety stands cancelled. MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period. MO.2 to 12 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.13 is ordered to be confiscated to the State Government after expiry of appeal period. 59 Spl. C.C. No.89/2013 (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)