Bangalore District Court
The State Of Karnataka vs Mr. M. Devaraj on 21 January, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT 1988, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 21st JANUARY 2017.
Spl. C.C.No. 323/2010
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing,
Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr. M. Devaraj, Major,
S/o Muniswamappa,
Health Inspector,
Health Inspector's Office,
Mahadevapura Zone,
BBMP, Bengaluru
R/a No.37, C/o Vinod,
Veerabhadrappa Road,
Ramaswamypalya, Bengaluru 33
(Rep by V.A.R.S. Associates, Advocates)
******
2 Spl. C.C. No.323/2010
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 30-07-2010.
of offence:
3. Date of First Information 30-07-2010.
Report:
4. Date of Arrest: 30-07-2010.
5. Date of Commencement 25-04-2013.
Of recording of evidence:
6. Date of Closing of evidence: 09-11-2016.
7. Date of Pronouncement of 21-01-2017.
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.
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as a Health Inspector in Mahadevapura Range of BBMP, Bengaluru. One Abdul 3 Spl. C.C. No.323/2010 Wahab Sab has lodged a complaint before the Lokayuktha Police on 30-07-2010, by alleging that when he has approached the accused for issuing the license for running a non-vegetarian hotel under the name 'Turning Point Restaurant' at K.R.Puram, accused demanded the bribe amount of Rs.50,000/- from him and scaled down his demand for Rs.25,000/- and subsequently scaled down for Rs.15,000/-. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.33/2010. The Investigating Officer has secured the witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. On 30-07-2010, at about 8.10 p.m., in front of Turning Point Restaurant building at K.R.Puram, Bengaluru, this accused was trapped by the Lokayuktha Police, when he was demanding and accepting the illegal gratification of Rs.10,000/- from the complainant. The Investigating Officer has conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before this court. The investigating officer continued the further investigation and recorded the statement of witnesses, obtained the chemical analysis report and submitted the final report before the sanctioning authority. After obtaining the sanction to prosecute the accused, Investigating Officer has filed the charge sheet against this accused by alleging that the accused has committed an 4 Spl. C.C. No.323/2010 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 and 13(1) (d) R/w Sec.13(2) of 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-25 documents and MO.1 to 17 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. But, during the course of cross- examination of prosecution witnesses, accused got marked two document as Ex.D.1 and 2.
6. I have heard the arguments of both the parties.
5 Spl. C.C. No.323/2010
7. The points, that arose for my consideration are:
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 Health Inspector at Mahadevapura BBMP Office, for the purpose of issuing the license to run the non-veg restaurant, demanded the illegal gratification Rs.50,000/- from the complainant and scale down his demand for Rs.25,000/- and further scaled down his demand for Rs.15,000/-
and on 30-07-2010, at about 8-10 PM, in front of Turning point Restaurant building, at K.R.Puram Bengaluru, accused demanded and accepted Rs.10,000/- from the complainant as an illegal gratification, other than legal remuneration, 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, as Health Inspector at Mahadevapura BBMP Office, on 30-07-2010, abused his official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.10,000/- 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.323/2010
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 sanction obtained to prosecute the accused and validity of said sanction. As the accused is a public servant working as Health Inspector at Mahadevapura BBMP Office, and the offences alleged against him were relating to Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, obtaining the valid sanction from the competent authority is a mandatory and statutory requirement to prosecute the accused. Before proceedings to consider the question relating to validity of sanction, let me first discuss the evidence let-in by the prosecution before this court.
10. CW.13 Dr. Sumedha R. Desai, who was examined as PW.1, deposed during the course of her evidence that, while she working as Director of Health and Family Welfare, she received a letter dated: 28- 10-2010 from ADGP, Karnataka Lokayuktha Bengaluru, seeking 7 Spl. C.C. No.323/2010 sanction to prosecute the accused. PW.1 further deposed that, along with the said letter, she has also received the copy of the complaint, FIR, mahazar, chemical analysis report, statements of witnesses and other prosecution papers. PW.1 further deposed that, she has perused all these documents and satisfied about the ground to accord sanction and accordingly issued the sanction as per Ex.P.1 to prosecute 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.1 further deposed that she was the competent authority with a power to dismiss the employees in the cadre of the accused.
11. CW.1-Abdul Wahab Sab, who was examined as PW.2, deposed during the course of his evidence that on 06-07-2010 he approached the accused to get the license for running a non- vegetarian hotel and accused asked him to pay Rs.3,000/- in form of D.D. and cash of Rs.50,000/-. PW.2 further deposed that when he said that, it is not possible to pay Rs.50,000/-, accused has scaled down his demand for Rs.25,000/- and reduced further for Rs.15,000/- and asked him to pay Rs.10,000/- and balance amount of Rs.5,000/- later on. PW.2 further deposed that on 29-07-2010, he appeared before the Lokayuktha Police and informed them about the matter and they have 8 Spl. C.C. No.323/2010 given him the voice recorder and button camera for recording the conversation between him and the accused. PW.2 further deposed that, on 30-07-2010 accused called him and demanded the money and accordingly he went to the office of Lokayuktha Police and lodged the complaint as per Ex.P.2. PW.2 further deposed about the Lokayuktha Police securing two witnesses and conducting the pre trap proceedings in thier presence and drawing the pre trap mahazar as per Ex.P.4. PW.2 further deposed that thereafter they went to the office of the accused at K.R.Puram, wherein accused was not found and when they called the accused, he told that he will come near his hotel at about 8.15 p.m. PW.2 further deposed that when they were waiting near his hotel, accused came and when he tried to pay Rs.10,000/-, accused asked him to put it in a cover. PW.2 further deposed that, after putting the amount in the cover, he gave the signal and Lokayuktha Police came to the spot and accused threw away the cover, in which the tainted currency notes were placed. PW.2 further deposed that, Lokayuktha Police have drawn the mahazar and thereafter they went to BBMP office, collected the documents and hand wash proceedings of the accused was made. PW.2 further deposed that amount was also recovered from the accused at the time of drawing the mahazar. 9 Spl. C.C. No.323/2010
12. CW.2 Sanaulla Shariff, who was examined as PW.3, deposed during the course of his evidence that, he is the son-in-law of CW.1 and along with CW.1, he approached the accused for getting the license to run a restaurant. PW.3 further deposed that accused demanded the bribe amount of Rs.50,000/- from them and CW.1 told his inability to pay the same. PW.3 further deposed that on 30-07- 2010 they appeared before the Lokayuktha Police and lodged a complaint and thereafter they went to the office of the accused. PW.3 further deposed that accused told them to come near the proposed hotel building and when they were standing there, accused came in between 7.45 p.m. to 8-00 p.m. PW.3 further deposed that, when CW.1 placed the cash before the accused, he went to nearby shop called Metro Fashion and brought the plastic cover and asked CW.1 to put the same in that cover. PW.3 further deposed that, accused has received the cover and after receiving the signal from CW.1, Lokayuktha Police came and accused thrown the plastic cover. PW.3 further deposed that Lokayuktha Police have drawn the pre trap mahazar and they went to the office of the accused and records were seized in the office.
10 Spl. C.C. No.323/2010
13. CW.6 Eshwra Kattimani, who was examined as PW.4, deposed during the course of his evidence that, he and CW.7 appeared before CW.20 on 30-07-2010 and PW.2 was introduced to them and he produced the currency notes and its numbers were noted down as per Ex.P.3 and phenolphthalein powder was applied on those currency notes. PW.4 further deposed about, Lokayuktha Police conducting the pre trap proceedings and drawing the pre trap mahazar as per Ex.P.4. PW.4 further deposed that, thereafter they went to the office of the accused and accused was not present and accused informed PW.2 that he will be coming to his hotel some times later. PW.4 further deposed that, they went near the hotel of CW.1 and accused came there and talked with PW.2 and thereafter PW.2 gave the signal by removing his spectacle. PW.4 further deposed that, when they reached the spot, they found plastic cover and some currency notes on the foot path adjoining the hotel building and they were seized. PW.4 further deposed that, hand wash of the accused was made and signatures of auto drivers were obtained on some documents. PW.4 further deposed that, thereafter they came to the office of the accused and file pertaining to PW.2 was seized. PW.4 further deposed that, thereafter they came back to the office of CW.20 and trap proceedings were made and trap mahazar was also drawn.
11 Spl. C.C. No.323/2010
14. CW.3-Thanveerulla Khan, who was examined as PW.5, deposed during the course of his evidence that, his father is running cloth business under the name and style Metro Fashion Point at K.R.Puram. PW.5 further deposed that, PW.2 is running a hotel in the adjacent building and he has not seen the accused. PW.5 further deposed that, he has not seen the Lokayuktha Police conducting any trap proceedings near the hotel of PW.2 and accused has not taken any cover from his shop.
15. CW.10 J.C.Heera Naik, who was examined as PW.6, deposed during the course of his evidence that, on 03-08-2010 he received a letter from the Police Inspector of Karnataka Lokayuktha police seeking certain information about this accused, who was working as Senior Health Inspector in K.R.Puram Sub-Division of BBMP. PW.6 further deposed that, accused was entrusted with the work of solid waste management and issue of trade licenses and other matters relating to health department. PW.6 further deposed that, accused was also holding the additional charge of Health Inspector of K.R.Puram Sub-Division. PW.6 further deposed that, he has given the information as sought by the Lokayuktha Police on 07-08-2010 as per Ex.P.9. PW.6 further deposed that, he has produced the copy of the work 12 Spl. C.C. No.323/2010 allotment order as per Ex.P.10 before the Lokayuktha Police. PW.6 further deposed that, the complainant suppose to file the application seeking the trade license to the Health Officer and not to the Health Inspector. PW.6 further deposed that, Health Inspector is supposed to verify the application seeking trade license, which was forwarded to him by Health Officer.
16. CW.8 Smt. Kalpana, who was examined as PW.7, deposed during the course of her evidence that, the accused was working as a senior health inspector in Mahadevapura, BBMP Zone and on 30-07- 2010, CW.20 called her over phone and told that they have trapped the accused and asked her to come to the Lokayuktha Police office on the next day. PW.7 further deposed that, on 31-07-2010, she went to the office of Lokayuktha office and they have shown the video recordings to her and after witnessing the said recordings, she found the person in the said recordings is similar to this accused. PW.7 further deposed that, Lokayuktha Police have also displayed the audio recordings in her presence and the voice in the audio recordings was similar to the voice of the accused. PW.7 further deposed that, thereafter Lokayuktha Police have asked her to produce the copy of 13 Spl. C.C. No.323/2010 the application and file relating to the complainant and she has produced the same as per Ex.P.11.
17. CW.7-Chandraswamy, who was examined as PW.8, deposed during the course of his evidence that, he and CW.6 were colleagues in PWD department and they appeared before the Lokayuktha Police on 30-07-2010, as per the instruction of their Executive Engineer. PW.8 further deposed that, CW.20 told them that BBMP Health Inspector by name Devaraj has demanded the bribe amount of Rs.25,000/- from the complainant and he has lodged the complaint before them. PW.8 further deposed that, Lokayuktha Police conducted the pre trap proceedings and drawn the pre trap mahazar as per Ex.P.4. PW.8 further deposed that, Lokayuktha Police have handed over button camera and voice recorder to the complainant and thereafter they proceeded towards the office of the accused at K.R.Puram. PW.8 further deposed that, accused was not present in the office and accused told the complainant over the phone to come near his hotel. PW.8 further deposed that, at about 8-00 p.m. when they were standing near the hotel of the complainant, accused came and talked with CW.1 and after receiving the bribe amount, CW.1 has given the signal by removing his spectacle. PW.8 further deposed that, 14 Spl. C.C. No.323/2010 thereafter when they proceeded to the spot, amount and cover was fallen in front of the hotel and same was shown to them. PW.8 further deposed that, Lokayuktha Police conducted the trap proceedings and thereafter they proceeded to the BBMP office at K.R.Puram and verified the documents and came back to the office of CW.20 and trap mahazar was drawn as per Ex.P.5. PW.8 further deposed that, the recordings in the camera and voice recorder was transmitted into CD and same was seized. PW.8 further deposed about the Lokayuktha Police handing over the metal seal to him by obtaining the acknowledgement as per Ex.P.12.
18. CW.20-K.C.Lakshminarayana, who was examined as PW.9, deposed during the course of his evidence that, on 30-07-2010 CW.1 appeared before him and lodged the complaint as per Ex.P.2, on the basis of which, he has registered the FIR as per Ex.P.15. PW.9 further deposed that, he has secured CW.6 and 7 as witnesses by issuing the letter as per Ex.P.16 and conducted the pre trap proceedings in their presence and drawn the mahazar as per Ex.P.4. PW.9 further deposed that, the recordings in the voice recorder was transcripted as per Ex.P.13 and recordings were also transmitted into CD and same was seized during the course of pre trap proceedings. PW.9 further 15 Spl. C.C. No.323/2010 deposed that, he instructed CW.1 to meet the accused and hand over the tainted notes to him when demanded by the accused and to give the signal by removing his spectacle. PW.9 further deposed that, thereafter they proceeded towards the office of the accused at K.R.Puram and accused was not found in the office and he called CW.1 and asked him to wait near his hotel. PW.9 further deposed that, they went near the hotel of the complainant and at about 8.05 p.m. accused came near the hotel and there was conversation between the accused and CW.1 and 2. PW.9 further deposed that, when CW.1 made an attempt to hand over the tainted currency notes to the accused, he brought the plastic cover from nearby cloth shop and asked CW.1 to keep the same in the plastic cover. PW.9 further deposed that, after receiving the signal from CW.1, they went to the spot and accused dropped the plastic cover with currency notes on to the ground. PW.9 further deposed that, those currency notes were taken from the ground and they were verified and its denominations and numbers were tallied with the denominations and numbers, which were entered as per Ex.P.3. PW.9 further deposed about the trap proceedings conducted by them at the spot and thereafter they proceeded towards the office of the accused at K.R.Puram and collected the documents as per Ex.P.17. PW.9 further deposed that, 16 Spl. C.C. No.323/2010 thereafter they came back to his office and continued the trap proceedings and recordings in the voice recorder and button camera were displayed in the presence of witnesses and recordings were transmitted into CD and same was seized. PW.9 further deposed that, recordings were also transcripted as per Ex.P.18. PW.9 further deposed that, he has handed over the metal seal, used to seize the materials objects, to CW.7 by obtaining the acknowledgement from him as per Ex.P.12. PW.9 further deposed that, he has drawn the mahazar as per Ex.P.5. PW.9 further deposed about he continuing the further investigation and recorded the statement of witnesses and also sent the requisition to the 17th ACMM, Bengaluru to record the statement of CW.1 and 2, under Sec. 164 of Cr.P.C. PW.9 further deposed that, he has drawn the sketch as per Ex.P.3 and received the chemical analysis report as per Ex.P.24, call details particulars as per Ex.P.25 and submitted final report before competent authority to get the sanction. PW.9 further deposed that, on 25-10-2010 he filed the charge sheet after receiving the sanction order as per Ex.P.1.
19. The accused has not let in any defence evidence on his behalf. But, accused got marked the copy of the application filed for getting the trade license and copy of the office order dated 28-07- 17 Spl. C.C. No.323/2010 2010 as Ex.D.1 and 2 respectively, by confronting the same to PW.2 and 6, during the course of their cross-examination.
20. There is no dispute that the accused is a public servant, working as Health Inspector in BBMP. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential 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.
21. In order to prove the sanction and validity of sanction, prosecution examined CW.13 Smt. Dr.Sumedha Desai as PW.1, who deposed about they 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.1 further deposed that he has perused all those papers and satisfied about the grounds to accord sanction and accordingly issued the sanction order as per Ex.P.1.
22. The evidence of PW.1 was not seriously challenged by the accused by cross examining him, in disputing the authority of PW.1 to issue sanction and application of his mind by her before issuing the 18 Spl. C.C. No.323/2010 sanction. In-fact, there is no serious 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.1 to prosecute the accused.
23. There is no serious dispute regarding the authority of CW.13 to issue the sanction order to prosecute the accused, being the director of Health and Family Welfare Department. There is also no dispute regarding application of mind by the sanctioning authority 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 the sanctioning authority has not applied its 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. 19 Spl. C.C. No.323/2010
POINT No.2 & 3:
24. 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 Health Inspector in BBMP, has demanded the bribe amount of Rs.50,000/- from the complainant for issuing the trade license to run the non-vegetarian restaurant and scaled down his demand to Rs.25,000/- and to Rs.15,000/- and accused was trapped while he was receiving the bribe amount of Rs.10,000/- from the complainant.
25. In order to bring home the guilt of the accused for the offence 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, one can say that prosecution has discharged its initial burden and to get the benefit of presumption in their favour.
20 Spl. C.C. No.323/2010
26. 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 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 21 Spl. C.C. No.323/2010 Sec.20 of the Prevention of Corruption Act 1988 would not arise.
27. 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 (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.
28. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988 is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of 22 Spl. C.C. No.323/2010 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.
29. The Hon'ble High Court of Karnataka has reiterated the same view in a 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.
30. 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 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, prosecution has to prove before this court that official work is to be done by the accused, relating to the complainant, so as to demand the illegal gratification from him. 23 Spl. C.C. No.323/2010
31. It is the specific case of the accused before this court that no official work relating to the complainant is pending before him or he has got no official work to be done in respect of the complainant in respect of the trade license applied by him. Therefore, according to the accused, when he can not do any act and any favour to the complainant, question of he demanding and accepting the bribe amount from the complainant would not arise. On the other hand, it is the contention of the prosecution that accused, being the health inspector in the K.R.Puram BBMP Ward, has received the application filed by the complainant for issuing the trade license and he has to scrutinize the same and place the same before the medical officer of the ward, so as to issue the trade license. Therefore, some official act relating to issuance of the trade license has to be done by the accused.
32. As per the prosecution case and the complaint allegations, the alleged demand of bribe amount by the accused is for issuance of the trade license to run the non-vegetarian restaurant by the complainant. The application in this regard has been filed as per Ex.D.1. According to the prosecution, in respect of issuance of the trade license, accused, being the Health Inspector, has demanded the bribe amount. As I said earlier, in order to bring home the guilt of the 24 Spl. C.C. No.323/2010 accused for the offences punishable under Sec.7 of the Prevention of Corruption Act, 1988 it is incumbent on the part of the prosecution to prove before this court that accused has got something to be done officially in respect of the application filed by the complainant for issuance of the trade license. If the accused has got nothing to do officially in respect of the application filed by the complainant for issuance of the license, then the theory of prosecution that there was demand of bribe amount by the accused cannot be accepted by this court.
33. In order to prove and establish the same, prosecution mainly relies upon the evidence of CW.10, who was examined as PW.6 and the documents issued by him as per Ex.P.9 and 10 regarding the work allotted to this accused. One Sri J.C. Heera Naik was examined as PW.6 and during the year 2010, when this incident took place, he was the Joint Commissioner of Mahadevapura zone of BBMP. During the course of his evidence, PW.6 deposed that on 03-08-2010, he received a letter from the Lokayuktha Police seeking information about this accused, who was working as Senior Health Inspector in the K.R.Puram Sub-Division, BBMP. PW.6 further deposed that accused was entrusted with the work of solid waste management, issue of trade license and other matters relating to the health department of 25 Spl. C.C. No.323/2010 BBMP. PW.6 further deposed that the accused was holding the additional charge of health inspector of K.R.Puram Sub-Division and as sought by the Lokayuktha Police, he has given the information to them as per Ex.P.9 and work allotment order as per Ex.P.10. PW.6 further deposed that complainant suppose to file the application seeking trade license to health officer and not the health inspector. PW.6 further deposed that health inspector is supposed to verify the application seeking trade license, which was forward to him by the health officer. During the course of his cross-examination, PW.6 deposed that health officer of the BBMP is authorized to issue trade license to commence any hotel business within that limit. It is on the basis of these statements given by PW.6, it was argued before this court on behalf of the accused that it is the health officer of the BBMP, who is authorized to issue trade license to commence the hotel business and accused, being the health inspector, has no authorization to issue the trade license. Therefore, he has no official work to be done in respect of the issuance of license to commence the hotel business.
34. To appreciate this argument for the accused, it is necessary to consider the documents issued by PW.6 as per Ex.P.9 and 10. Ex.P.9 is the information furnished by PW.6 to the Lokayuktha Police regarding service particulars of the accused and work allotment. 26 Spl. C.C. No.323/2010 Ex.P.10 is the office order dated: 16-07-2009 regarding allotment of the work to the officials of BBMP, who were working within the Mahadevapura BBMP zone. As per the answer given for the question No.1 in Ex.P.9, accused being the health inspector is authorized to do the work relating to solid waste management and control and issuance of the trade license and putting the file before the health officer to issue the trade license. So, Ex.P.9 makes it very clear that the accused has got official duty to put the file before health officer to issue the trade license. Even though issuance of the trade license is by the health officer, accused, being the health inspector has got official duty to put up the file before the health officer for issuing the trade license. Regarding application filed by this complainant, answer was given at question No.2 in Ex.P.9. While answering the question No.6, it was specifically stated in Ex.P.9 that this accused has directly received the application from the complainant and kept with him. While answering the question No.4 in Ex.P.9, it was stated that the accused has received the application and collected the fees in respect of other two applicants also.
35. As per Ex.P.10, it is stated that accused was holding the additional charge of K.R.Puram Sub-Division. All these facts would clearly establish that though the accused is not authorized officially to 27 Spl. C.C. No.323/2010 issue the trade license, if any application is filed for issuance of the trade license, accused has to verify the same and put up the same before the health officer to issue the trade license. Even though PW.6 was cross examined by the learned counsel for the accused, his statement that the Health inspector is suppose to verify the application seeking trade license was not at all denied or disputed by the accused. Ex.P.9 and 10 issued by PW.6 was also not disputed or denied by the accused during the course of cross-examination of PW.6. Under such circumstances, there was no reason for this court to doubt Ex.P.9 and 10 and the evidence of PW.6, which clearly establish that accused, being the health inspector was having an official work relating to the issuance of the trade license, by putting the file before the health officer. The evidence of PW.6 and Ex.P.9 and 10 would also establish that accused was holding the additional charge of K.R.Puram Sub- Division, within which the complainant sought the issuance of the trade license to run the non-vegetarian restaurant. Thereby the prosecution has proved first requirement i.e. pendency of the official work relating to the complainant before the accused.
36. Next question, which requires to be considered by this court is regarding the demand of bribe amount, which is also one of the important requirements to constitute the offence under Sec.7 of the 28 Spl. C.C. No.323/2010 Prevention of Corruption Act. 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.
37. The Hon'ble Supreme Court has reiterated the same view in a 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.
38. The Hon'ble Supreme Court has expressed the same view in his Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma) wherein it was held that mere recovery of tainted notes is not enough as there is necessity of showing the demand for illegal gratification. Same view was expressed by the Hon'ble Supreme Court in the subsequent 29 Spl. C.C. No.323/2010 decision reported in 2015 STPL (Web) 354 SC (Gulbar Hussain and others V/s State of Assam and another) and unreported decisions of our High Court in Crl.Appeal.No.86/2013 in between S. Vasanth Kumar V/s State of Karnataka dated:21-08-2014, Crl. Appeal No.1339/2010 in between B.N.Swamy V/s The State of Karnataka, dated:27-03-2015 and Crl. Appeal No.987/1999 in between R. Manthra Murthy V/s The State of Karnataka dated:11-12-2015, which were all relied by the accused in support of his contentions. So the ratio laid down in all those decisions are very clear on this point that the initial burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused No.1.
39. As per the prosecution, in the case on hand, demand of illegal gratification by the accused is on two stages. Firstly, there was demand before lodging the complaint and secondly, there was demand of illegal gratification made by the accused subsequent to the lodging of complaint, when the complainant, along with Lokayuktha Police and witnesses approached the accused to trap him. In order to prove the allegation of demand of illegal gratification before lodging the complaint, prosecution relied upon the recordings made in the voice 30 Spl. C.C. No.323/2010 recorder given to the complainant by the Lokayuktha Police and complaint lodged by CW.1 and evidence of CW.1 and 2.
40. Let me first consider the evidence relied upon by the prosecution in the form of recordings made in the voice recorder, to prove the demand of bribe by the accused before lodging the complaint. According to the prosecution, when there was demand of bribe by the accused, complainant has approached the Lokayuktha Police and they have handed over the voice recorder to him to record the conversation between him and the accused, so as to confirm the allegations. Accordingly, complainant again met the accused, recorded the conversation between him and the accused and in the said conversation, there was demand of bribe amount and thereafter, along with the recordings in the voice recorder, complainant again approached the Lokayuktha Police and lodged the complaint as per Ex.P.2, on the basis of which, FIR was registered and trap was laid.
41. Before proceeding to consider the admissibility of the evidence produced by the prosecution in the form of CD and transcription of the recordings in the voice recorder, let me consider the evidence of the prosecution witnesses as to when the said voice recorder was handed over to the complainant and where the 31 Spl. C.C. No.323/2010 recordings of the conversation was made. If this court draw its attention to the complaint, which is marked as per Ex.P.2, in page 2 of the complaint, complainant has specifically stated that on the date of lodging the complaint i.e. on 30-07-2010, at about 9-00 a.m., he called the accused and enquired him about the hotel license applied by him and accused demanded the bribe amount. Therefore, on the same day, he appeared before the Lokayuktha Police and Lokayuktha Police Inspector has handed over the voice recorder to him and asked him to record the conversation between him and the accused. So, as per the above statement made in Ex.P.2 complaint, on the date of lodging the complaint i.e., on 30-07-2010, complainant has appeared before the Lokayuktha Police and Lokayuktha Police Inspector has handed over the voice recorder to the complainant. The complaint as per Ex.P.2 was lodged on 30-07-2010.
42. If I draw my attention to the evidence of complainant, who was examined as PW.2, in page 2 of his examination in chief, PW.2 has specifically deposed that on 29-07-2010, he went to Lokayuktha office and told about the matter and he was given with a voice recorder and button camera for recordings the talk and events. So, there is contradiction in between the complaint allegations and the 32 Spl. C.C. No.323/2010 evidence of complainant regarding the actual date, when the voice recorder was given to the complainant to record the conversation between him and the accused. As I said earlier, complaint allegations show that it was on the date of lodging the complaint i.e. 30-07-2010, whereas complainant/PW.2, in his evidence says that it is on 29-07- 2010.
43. The Investigating Officer would have clarified this contradiction during the course of his evidence. But, the Investigating Officer, who was examined as PW.9, in his examination in chief, has not deposed anything regarding CW.1 meeting him on 30-07-2010 and orally complaining about the demand of bribe made by the accused and thereafter, he handing over voice recorder to him. Rather than saying about all those, Investigating Officer, in his examination in chief, straight away said that on 30-07-2010, CW.1 appeared before him and lodged the complaint as per Ex.P.2, on the basis of which he registered the FIR. The Investigating Officer has not deposed anything before this court regarding the incident, which took place before lodging the complaint, in the form of he handing over voice recorder to CW.1, either on 30-07-2010 or on 29-07-2010.
33 Spl. C.C. No.323/2010
44. The Investigating Officer was cross examined by the learned counsel for the accused in this regard. In page 8 of his cross- examination, PW.9 said that on 29-07-2010, CW.1 has not met him and he has not handed over any voice recorder to CW.1. But complainant/PW.2 says that on 29-07-2010, Lokayuktha Police Inspector has handed over voice recorder to him. Now it is relevant to refer page 61 of the charge sheet, which is the copy of the station house dairy of the Lokayuktha Police. As per the entries made in the station house dairy, on 30-07-2010 at about 10-00 a.m. CW.1 has appeared before CW.20 alleging that there was demand of bribe amount by this accused and in order to confirm the allegations, the voice recorder was handed over to CW.1 to record the conversation between him and the accused. So, there is entry in the station house dairy that a voice recorder was handed over to the complainant on 30- 07-2010 at 10-00 a.m. The Investigating Officer, who was examined as PW.9, himself has made those recordings in the station house dairy and put his signature. But, during the course of his examination in chief, PW.9 has not said anything about the same, though complainant/PW.2 said about the same. According to complainant, it was on 29-07-2010, where as the Investigating Officer said that on 29-07-2010 Complainant has not met him and not discussed about his 34 Spl. C.C. No.323/2010 case and he has not handed over any voice recorder to CW.1. All these contradictions in between the evidence of CW.1 and the Investigating Officer would create some doubt in the mind of this court regarding the incident of handing over voice recorder to CW.1, before lodging the complaint, in order to record the conversation of demand of bribe amount.
45. The complaint allegations and evidence of the complainant is totally silent as to where the complainant met the accused with voice recorder so as to record the conversation between them regarding the demand of bribe amount. If the complainant has obtained the voice recorder from the Lokayuktha police on 30-07-2010, at 10-00 AM, as entered in the station house dairy, he would have met the accused on the same day and recorded the conversation in the voice recorder on the same day. Because, according the prosecution on 30-07-2010 at about 2-45 PM, complainant appeared before CW.20 and lodged the complaint, along with recorded conversation in the voice recorder. If all these version of the prosecution and its witnesses are considered and accepted, recordings in the voice recorder would have been made in between 10-00 AM to 2-45 PM, on 30-07-2010.
35 Spl. C.C. No.323/2010
46. According to the accused, he was on leave on 30-07-2010 and not gone to the office on that day. Therefore, complainant would not have met him in his office on that day, to record the conversation. The attendance register of the office of the accused, which is at page No.62 of the charge sheet shows that accused has not attended the office on 30-07-2010 and he is shown as absent. Even as per the prosecution, after the pre-trap proceedings, when the trap team went near the office of the accused at K.R.Puram, at about 5-15 PM on 30- 07-2010 he was not found in the office. All these goes to show that on 30-07-2010 accused not attended for the duty in his office at K.R.Puram. Under such circumstances, it is not made known to this court, as to where and in between what time, complainant met the accused to record the conversation between them in the voice recorder given to him by the Lokayuktha police. It is not the case of the complainant that he met the accused at some other place, other than his office. Neither the complaint allegations, nor the evidence of complainant and investigating officer reveal the place and time of recording of the conversation in the voice recorder. This would create huge doubt in the mind of this court about the recordings of conversation and voice of the accused in the said recordings. 36 Spl. C.C. No.323/2010
47. Let me proceed with my discussion by accepting that voice recorder was given to CW.1 and accordingly CW.1 met the accused along with voice recorder and recorded the conversation between him and the accused and thereafter handed over the voice recorder to the Lokayuktha Police while lodging the complaint. According to the prosecution, recordings in the voice recorder produced by CW.1 was displayed in the presence of the witnesses and its recordings were transmitted into CD and said CD was also displayed before senior official of the accused, who identified the accused and his voice and those recordings were also transcripted in the presence of CW.2 and 3. The evidence produced by the prosecution in this regard is CD containing the recordings in the voice recorder as MO.6 and the transcription of the recordings as per Ex.P.13.
48. All these evidence produced by the prosecution before this court are all the secondary evidence of the recordings in the voice recorder. The primary evidence is the voice recorder in which the recording was actually made. Said voice recorder has not been produced before this court. So, it is the case of prosecution producing only the secondary evidence of the recordings in the voice recorder and not the primary evidence. The secondary evidence produced 37 Spl. C.C. No.323/2010 before this court in the form of CD is not accompanied by the certificate, which is required under Sec.65-B of the Indian Evidence Act. When the prosecution has not produced the primary evidence of electronic evidence and produced only the secondary evidence, which is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act, such evidence cannot be considered and accepted by this court. This view of mine is based upon the three Judges Bench Decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of the electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65-B of the Indian Evidence Act, said secondary evidence is not admissible in evidence.
49. So, now it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under Sec. 65-B of the Indian Evidence Act in respect of genuineness of the said 38 Spl. C.C. No.323/2010 secondary evidence. In the case on hand, though the prosecution has produced only the secondary evidence in respect of the recordings in the voice recorder, it is not supported by the certificate under Sec. 65- B of the Indian Evidence Act. It is very unfortunate that, in spite of the mandatory provisions and decision of the Hon'ble Supreme Court on this point, investigating agency are still continuing to do the mistake of producing the secondary evidence, without the certificate under Sec. 65-B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of recordings in the voice recorder in order to prove the demand of bribe before lodging the complaint. Hence, both the CD produced as per M.O.6 and the transcription of the recordings as per Ex.P.13 deserves no consideration by this court.
50. The prosecution examined CW.8 as PW.7 to prove that the recording in the voice recorder was shown to her and she identified the voice of the accused in those recordings. PW.7, in her examination in chief said that, after hearing audio recordings, she found voice in the audio recordings was also similar voice of this accused. PW.7 has not stated that voice in the recordings was that of this accused. Rather PW.7 said that they are similar to the voice of the accused. During the 39 Spl. C.C. No.323/2010 course of her cross-examination, PW.7 said that she cannot accurately identify the voice of the accused since the accused was working at K.R.Puram office and she was not familiar with his voice. In view of these statements given by PW.7, her evidence cannot be considered by this court in proof of accused making conversation in the voice recorder.
51. The Investigating Officer has not made any attempt to obtain the specimen voice of the accused and sent the same to the forensic examination, by comparing his voice in the recordings made in the voice recorder. Though the prosecution had the opportunity to prove the voice of the accused in the voice recorder by getting the opinion of the expert, after comparing the same with the specimen voice of the accused, investigating agency has not made that effort and not utilized that option available to them. No explanation is forth coming from the Investigating Officer, either for not obtaining the expert opinion regarding the voice of the accused or for getting the certificate under Sec.65-B of the Indian Evidence Act, regarding secondary evidence produced before this court. Therefore, all these evidence produced by the prosecution cannot be accepted by this court.
40 Spl. C.C. No.323/2010
52. Other evidence available for the prosecution to prove the demand of bribe amount, before lodging the complaint is the complaint allegations and the evidence of complainant, who was examined as PW.2 and his son-in-law, who was examined as PW.3. Of-course, in the complaint, there is allegations about PW.2 and 3 approaching the accused for getting the license to run the non-vegetarian restaurant at K.R.Puram, on old Madras road and accused initially demanding the bribe amount of Rs.50,000/- from them. It was also alleged in the complaint that accused used to call PW.3 frequently demanding the bribe amount and subsequently when they approached the accused, he scaled down his demand for Rs.25,000/- and subsequently for Rs.15,000/-. The complainant/PW.2 has deposed in support of the complaint allegations by deposing before this court about the demand of bribe amount made by the accused and subsequently he scaling down his demand. The son-in-law of the complainant, who was examined as PW.3, also deposed about the demand of bribe amount made by the accused. However, there are some contradictions in between the evidence of PW.2 and 3. PW.2 deposed that, when they approached the accused on 16-07-2010 he demanded the bribe amount, whereas PW.3 deposed that the demand of bribe amount made by the accused was on 15-07-2010. As per the evidence of 41 Spl. C.C. No.323/2010 PW.2, accused has scaled down his demand for Rs.25,000/- and thereafter to Rs.15,000/-. Where as, as per the evidence of PW.3 accused demanded the bribe amount of Rs.50,000/- and ultimately scaled down his demand for Rs.25,000/-. So, there are some contradictions in between the evidence of PW.2 and 3.
53. This court cannot accept the evidence of PW.2 and 3 to hold that the prosecution has proved the demand of bribe amount made by the accused before lodging the complaint, because absolutely there is no corroboration for their evidence. Since PW.3 is the son-in-law of the complainant and they jointly approached the accused to get the license and thereafter jointly approached the Lokayuktha Police to lodge the complaint, there should be independent corroboration for their evidence, regarding the demand of bribe amount. Both PW.2 and 3 are the partisan and interested witnesses. As held by the Hon'ble Supreme Court and the Hon'ble High Court of Karnataka, in catena of decisions, in the cases like this, there should be independent corroboration for the evidence of complainant. The evidence of PW.3 can not be said as independent corroborative evidence for the evidence of complainant, because he is the son-in-law of the complainant and he is also an interested witness in success of trap and convicting the accused. 42 Spl. C.C. No.323/2010
54. Even though the recordings in the voice recorder would have corroborated the evidence of PW.2 and 3, prosecution failed to produce the primary evidence and secondary evidence of the recordings in the voice recorder was not accompanied by the certificate under Sec.65-B of the Indian Evidence Act. There is absolutely no other evidence in support of the prosecution to prove the allegations of demand made by the accused before lodging the complaint. The oral testimony of PW.2 and 3 in this regard do not inspire confidence. Therefore, I hold that the prosecution has failed to prove the alleged demand of bribe amount made by the accused before lodging the complaint.
55. Now let me consider the second stage when the demand of bribe was made by the accused. According to the prosecution, after lodging the complaint and registration of FIR, pre trap proceedings were conducted in the presence of the witnesses and thereafter they proceeded to trap the accused with tainted currency notes. According to the prosecution, when PW.2 and 3 met the accused in front of their hotel building, again there was demand of bribe amount by the accused, in pursuance of which, tainted currency notes were handed over to the accused. In order to prove the demand of bribe amount at 43 Spl. C.C. No.323/2010 the time of trap, prosecution relied upon the evidence of PW.2 and 3 and also the evidence of shadow witness, who was examined as PW.4. The prosecution also relied upon the recordings made in the button camera and voice recorder, which was given to CW.1 at the time of pre trap proceedings, to record the conversation between him and the accused. It is on the basis of all these evidence, prosecution tried to prove that there was demand of bribe by the accused at the time of trap.
56. So far as the recordings in the button camera and voice recorder, again the primary evidence was not produced before this court, as neither the button camera nor the voice recorder, in which the conversation recorded, were produced before this court. The prosecution has produced only the CD as M.O.8 and transcription of the recordings made in the said voice recorder and button camera, as Ex.P.18. Whatever the discussion made by me and the reasons given by me in respect of the recordings in the voice recorder produced by the complainant at the time of lodging the complaint, would apply to this also. Again the button camera and voice recorder was not produced before the court and CD and transcription of the recordings were not accompanied by the certificate under Sec. 65-B of the Indian 44 Spl. C.C. No.323/2010 Evidence Act. Though the prosecution examined CW.8 as PW.7, before whom those video recordings were displayed, she was not definite that the accused and his voice was in those recordings, because she said that the person in the video recordings was similar to the accused and not said it was the accused. PW.7 also said that she cannot say how many people involved in the conversation recorded in the CD. PW.7 further said that she cannot accurately identify the voice of the accused, since accused was working at K.R.Puram and she was not familiar with his voice. Therefore, this court cannot accept the CD, transcription of the recordings and evidence of PW.7 to hold that the accused was found in those recordings and that he has demanded the bribe amount from the complainant at the time of trap.
57. Of-course, CW.1, who was examined as PW.2, deposed in his examination in chief that initially they went to the office of the accused at K.R.Puram and accused was not found there and when he contacted the accused over the phone, he asked him to come near his hotel and accordingly when he, along with the trap team, were waiting near the hotel building, at about 8.15 p.m. accused came and asked him to give the money. The son-in-law of the complainant, who was examined as PW.3, deposed during the course of his evidence that when they met 45 Spl. C.C. No.323/2010 the accused near his hotel building, accused asked as to whether money is brought or not. These are all the statements given by PW.2 and 3 regarding the demand of bribe amount made by the accused at the time of trap.
58. As I said earlier, oral testimony of PW.2 and 3 cannot be the sole basis for proving the demand of bribe, because there should be independent corroboration for their oral testimony. Therefore, the evidence of shadow witness would play an important role in this case. During the pre trap proceedings, CW.6 was designated as shadow witness and he was asked to accompany the complainant, while he approaches the accused and observe as to what transpires between them. CW.6 was examined as PW.4 before this court. Of-course PW.4 deposed about the pre trap procedures conducted in their presence and thereafter they proceeding near the office of the accused at K.R.Puram and subsequently going near the hotel of CW.1. PW.4 further said that at about 8-00 p.m. accused came to their hotel and PW.2 spoke to the accused and he was little distance away from them and five minutes thereafter, PW.2 removed the spectacle and wiped his face with right hand. Thereafter, he, along with Lokayuktha Police staff went to the hotel. So, in his examination in chief, PW.4 never said 46 Spl. C.C. No.323/2010 that the accused has demanded the bribe amount from the complainant.
59. When the prosecution realized that shadow witness has not supported their case regarding the demand of bribe amount, it treated PW.4 as hostile witness and cross examined him. During the course of his cross-examination by the learned Public Prosecutor, when it was suggested to PW.4 that after the demand was made by the accused, PW.2 came forward to give the tainted currency notes to the accused, PW.4 has specifically denied that suggestion. PW.4 has also denied the suggestion of he giving the statement as per Ex.P.7 before the Investigating Officer regarding handing over the tainted currency notes to the accused, after it was demanded by the accused. So, though PW.4 was cross examined by the learned Public Prosecutor regarding demand of bribe amount made by the accused, no materials aspects were brought out from the cross-examination of PW.4. Therefore, I have to say that the prosecution has no benefit of the evidence of shadow witness to prove the demand of bribe amount.
60. Though PW.2 and 3, being the complainant and his son-in- law, have deposed that the accused has demanded the bribe amount, their oral testimony is not convincing and it do not inspire the 47 Spl. C.C. No.323/2010 confidence, because it is not corroborated with any independent evidence. Even though the complainant/PW.2 deposed in support of the prosecution case, he failed to say about the material procedures, which was conducted in his presence. Since the complainant/PW.2 has not deposed in respect of those materials procedures during the course of his examination in chief, learned Public Prosecutor treated him as hostile witness and cross examined him. It is only during the course of his cross-examination, complainant/PW.2 has admitted the suggestions put to him regarding he producing the voice recorder before the Lokayuktha Police and displaying of its recordings and transmission of those recordings in the CD. PW.2 also admitted the suggestion regarding the presence of his son-in-law with him, when he went to the office of accused. PW.2 also admitted the suggestion that as per the advice of Lokayuktha Police, he contacted the accused over the phone and accused told him to wait near the hotel. PW.2 also admitted the suggestion about the Lokayuktha Police dipping the cover in the sodium carbonate solution and same turning into pink colour. PW.2 also admitted the suggestion about taking of sample solution and seizing the same. PW.2 has also admitted the suggestion about the cover used by the accused to ask him to keep the currency notes. PW.2 also admitted about the swiping of floor with cotton, where the 48 Spl. C.C. No.323/2010 tainted currency notes were thrown. PW.2 also admitted about they coming to the office of the accused at K.R.Puram and seizing the records. More importantly PW.2 admitted the suggestion that their statement was recorded during the trap mahazar and so also explanation given by the accused. So complainant/PW.2 has not spoken anything about all these incident and procedures during the course of his examination in chief and he admitted the same only during the course of his cross-examination, when suggestions were put to him. Of-course admission given for the suggestion is also evidence. But, same weight cannot be given to the said evidence, when it was elicited by putting the suggestion to the witness. Therefore, because of this reason also, oral testimony of PW.2 does not inspire confidence.
61. It is the specific case made out by the accused that this is a false case registered against him with an vengeance, since he has got registered a case against some other persons of the same locality and belong to the same community of the complainant. In this regard, the accused, during the course of recording his statement under Sec.313 of Cr.P.C. has produced the FIR registered against one Mohiddin Sab and others on the complaint filed by him and also copy of the charge sheet filed by the K.R.Puram police against the said Mohiddin Sab and 49 Spl. C.C. No.323/2010 others. As per the FIR and charge sheet this accused has lodged the complaint against the Mohiddin Sab and others alleging that, by blocking the public road, accused persons have put the fire wood and when this accused has questioned about the same, they have assaulted him and obstructed from discharging his official duty. This incident occurred on 23-02-2010 whereas the complaint against this accused for the registration of the FIR was made on 30-07-2010, which is about five months after the above incident. The accused in the above case, this complainant and his son-in-law in the present case belong to the same community. During the course of cross- examination of complainant, counsel for the accused has asked few questions about registration of that case and because of vengeance complainant lodging the false complaint against this accused. Of- course, complainant has denied those allegations. But possibility of planting a false case against this accused, because of the vengeance of he registering the case against the accused persons in that case, cannot be denied or ruled out. Therefore, careful appreciation of evidence of complainant and his son-in-law is required in the present case. Absolutely there is no corroboration for the oral testimony of PW.2 and 3 regarding the demand of bribe made before lodging the complaint or after lodging the complaint and at the time of trap. 50 Spl. C.C. No.323/2010
62. Even as per the decision of Hon'ble Supreme Court and Hon'ble High Court of Karnataka, sole testimony of the complainant cannot be accepted in proof of demand and acceptance of the bribe amount, when it is not corroborated with any other evidence, because the complainant is in the nature of accomplice in the cases like this and he is also a interested witness. In this regard, it is necessary to refer a decision of Hon'ble Supreme Court reported in (2011) 2 Supreme Court Cases (Cri) 1010 ((2011) 6 Supreme Court Cases 450) (State of Kerala and another V/s C.P.Rao). While discussing the question of standard of proof and corroboration in trap cases registered for taking bribe against a public servant for the offences punishable under Sec.7, 13(2) and 13(1)(d) of the Prevention of Corruption Act 1988, it was held by the Hon'ble Supreme Court that, "when there is no corroboration for the testimony of the complainant regarding demand of bribe by the accused, it has to be accepted that complainant version is not corroborated and therefore, evidence of the complainant cannot be relied upon".
63. Another decision, which can be relied upon on this point is the decision of Hon'ble Supreme Court reported in 1981 Supreme Court Cases (Crl) 586 (Gulam Mahmood A. Malek V/s State of 51 Spl. C.C. No.323/2010 Gujarat) wherein it was held that "in a trap cases, complainant himself is in the nature of accomplice and his story is prima facie suspect, for which, corroboration in materials particulars is necessary".
64. Another decision, which can be referred on this point is the decision of Hon'ble High Court of Karnataka reported in 2006 (3) KCCR 1445 (State of Karntaka V/s K.T.Hanumanthaiah) wherein it was held that "there should be independent corroboration for proving the case of demand and acceptance of bribe for the offences under Sec. 7 and 13(1)(d) R/w 13(2) of the Prevention of Corruption Act".
65. One more decision which can be relied on this point is the recent decision of Hon'ble High Court of Karnataka reported in 2016(1) KCCR 815 (R. Srinivasan and Another V/s State by Police Inspector, Lokayuktha, Bengaluru). It was held in the above decision that "in a trap cases the complainant will normally be an interested person in the sense he would be interested in getting the accused trapped since the accused is stated to have not acted legally, according to him. Hence the evidence of the complainant needs corroboration in material particulars and 52 Spl. C.C. No.323/2010 this is where corroboration by the shadow witness assumes importance.
66. One more decision, which can be referred on this point is the decision of Hon'ble Supreme Court reported in 1974 Supreme Court Cases Crl. 73 (Darshan Lal V/s The Delhi Administration). By relying upon its earlier Judgment in Ram Prakash Arora V/s The State of Punjab reported in 1972 SCC Crl. 8696, it was held in the said decisions that Courts should have required independent and trustworthy corroboration for the evidence of the complainant, as he is the interested and partisan witness, as they are concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case, Court may look into the independent corroboration before convicting the accused. Same view was expressed by the Hon'ble High Court of Karnataka in a decision reported in 2015 (1) KCCR 898 (N.A. Suryanarayana V/s State of Inspector of Police).
67. In this particular case, regarding demand of bribe amount on both the stages, there is only the evidence of complainant and his son- in law and absolutely there is no corroboration for their evidence, as the shadow witness has not supported the prosecution case regarding 53 Spl. C.C. No.323/2010 the demand of bribe amount by the accused. I have already discussed the several factors, which come in the way of this court in accepting the testimony of the complainant and his son in law, without there being any corroboration for the same. Under such circumstances, I hold that the evidence of the complainant is unreliable regarding demand of bribe amount, because it remained uncorroborated and surrounded with some suspicious circumstances. Therefore, I am unable to accept the same. Accordingly, I hold that the prosecution has failed to prove the demand of bribe amount made by the accused.
68. Now the next question which requires to be considered by this court is regarding the acceptance of the tainted currency notes by the accused as an illegal gratification. It is well established principle of law held through catena of decisions of Hon'ble Supreme Court and Hon'ble High Court of Karnataka that mere acceptance of the tainted currency notes or accused possessing the same and positive phenolphthalein test report are can not be the basis to hold that the accused has accepted the same as an illegal gratification, when the prosecution unable to prove the demand made by the accused. In this particular case, in view of my above discussion and reasoning, prosecution has failed to prove the demand of illegal gratification made 54 Spl. C.C. No.323/2010 by the accused. Under such circumstances, even if the prosecution proves the acceptance of the tainted currency notes or accused possessing the same, this court cannot hold him as the guilty of accepting the illegal gratification or committing the criminal misconduct being a public servant.
69. In the case on hand, again there is no evidence regarding the actual acceptance of the tainted currency notes by the accused. Even as per the prosecution case, accused has not accepted the same from his hands and there is also no positive phenolphthalein test report of the hand wash of this accused. It is the case of the prosecution that, when the complainant offered to hand over the tainted currency notes to the accused, instead of receiving the same from his hands, accused brought the plastic cover from the nearby cloth shop and asked the complainant to keep the tainted currency notes on the plastic cover. According to the prosecution case, complainant gave the signal to the Lokayuktha Police, who arrived to the spot immediately and after seeing the Lokayuktha Police, accused has thrown away the tainted currency notes along with the plastic cover on the ground. According to the prosecution, phenolphthalein test of plastic cover and the cotton, which was rubbed ground on 55 Spl. C.C. No.323/2010 which the tainted currency notes were thrown, were taken, which turned into pink color and hand wash of the accused was not made in the sodium carbonate solution, as he has not actually received the tainted currency notes from his hand by touching the same.
70. Now two questions would arise for the consideration of this court. Firstly, whether the accused has voluntarily and actually received the tainted currency notes by bringing the plastic cover and by asking the complainant to keep the tainted currency notes on the plastic cover. If the prosecution able to prove the same, then the second question would be as to whether it would amounts to acceptance or receipt of the illegal gratification, when the tainted currency notes were thrown and found on the ground at the time when the Lokayuktha Police and the trap team arrived to the spot.
71. Again to prove the acceptance of the illegal gratification the prosecution relied upon the evidence of complainant and his son-in- law, who were examined before this court as PW.2 and 3 respectively. The prosecution has also relied upon the pre-trap proceedings conducted by the Investigating officer in the presence of the complainant and witnesses and drawing of pre-trap mahazar. The prosecution has placed the reliance upon the evidence of shadow 56 Spl. C.C. No.323/2010 witness, who was examined as PW.4, to prove that the accused has received the illegal gratification by asking the complainant to keep the tainted currency notes on the plastic cover. Apart from that, the prosecution relied upon the evidence of another independent witness, who was examined as PW.8 and also the positive phenolphthalein test report of the plastic cover and the cotton, which was rubbed on the ground where the tainted currency notes were found. It is on the basis of all these evidence, prosecution has made an attempt to prove before the court that the accused has accepted the illegal gratification by receiving the tainted currency notes, by asking the complainant to keep the same in the cover.
72. Before the Lokayuktha Police proceed to lay the trap, pre trap proceedings were conducted and pre trap mahazar was drawn in the office of Lokayuktha Police, in the presence of complainant, shadow witness and panch witness. The accused has not at all disputed the same, as no cross-examination was made to any of the prosecution witnesses and no arguments were canvassed in denying or disputing the pre-trap proceedings and drawing of pre-trap mahazar. The prosecution has independently proved the pre trap proceedings and drawing of pre trap mahazar by examining the CW.1, 6 and 7 and also 57 Spl. C.C. No.323/2010 the Investigating Officer. So, prosecution has proved the conducting of pre trap proceedings and pre trap mahazar, before proceeding to lay the trap.
73. Regarding the acceptance of the tainted currency notes by the accused, complainant, who was examined as PW.2, deposed during the course of his examination in chief that, at about 8.15 p.m. when he went inside the hotel, accused asked him to give the money and when he proceeded to hand over the money of Rs.10,000/- accused asked him to put in a cover and there was no cover with him and accused brought a cover from near by Metro Footwear and held the cover in front of him and stretched it and he put the currency in the cover and folded the cover and put it in the bag. PW.2 further said that he flashed the signal by wiping his eyes after removing the spectacle and Lokayuktha Police came and held the accused and accused thrown away the bag. PW.2 again said that cover was not opened and accused stretched the cover in its original form and then folded it after he kept the money in that cover and it was thrown by the accused on the floor.
74. The son-in-law of the complainant, who was examined as PW.3, deposed during the course of his examination in chief that when 58 Spl. C.C. No.323/2010 the complainant met the accused he asked him as to whether the money is brought or not. When the complainant placed the cash of Rs.10,000/- before the accused he went to nearby a shop called Metro Fashion and brought the plastic cover and asked the complainant to keep the amount in that cover. PW.3 further said that complainant has kept the money in that cover and accused received that cover with money from his right hand and complainant removed his spectacle and wiped his face with his left hand and immediately Lokayuktha Police came there and held the upper arm of the accused and at the time, accused, who was holding the plastic cover, has thrown the plastic cover and told that he has not received the money. So, these are the statement of PW.2 and 3 regarding accused receiving the tainted currency notes by asking complainant to keep the same on the cover and thereafter throwing away the plastic cover with the tainted currency notes after the Lokayuktha Police arrived to the spot. As I have already said, evidence of complainant and his son-in-law can not be the sole basis for accepting the prosecution version regarding acceptance of the tainted currency notes, because they are interested and partisan witness. As held in the above referred decisions, there should be independent corroboration for their oral testimony, so as to accept the same and to convict the accused.
59 Spl. C.C. No.323/2010
75. In this regard, evidence of CW.3 would play an important role, because he is the owner of the Metro Fashion shop, from which the accused said to have brought the plastic cover to keep the tainted currency notes. CW.3, who was examined as PW.5, deposed during the course of his evidence that they were running the Metro Fashion at K.R.Puram and complainant is running a hotel in the building attached to their shop and he is to look after the business of his father. PW.5 further said that he has not seen the accused and not seen the Lokayuktha Police staff conducting any proceedings in the hotel of PW.2. PW.5 further said that the accused has not taken any cover from his shop. When PW.5 has not supported their case, learned Public Prosecutor, by treating him as hostile witness, has cross examined him. Even during the course of his cross-examination, PW.5 specifically denied about the accused coming to their shop and taking the plastic cover. PW.5 also went on to deny about he giving the statement before the Investigating Officer as per Ex.P.8 in respect of the entire incident. In-fact the evidence of PW.5 is also important and material from the point of view of the prosecution, because inside the shop of PW.5 and in his presence, further proceedings were conducted by the Lokayuktha Police by immersing the plastic cover and the cotton in the solution. According to the prosecution, PW.5 has 60 Spl. C.C. No.323/2010 witnessed all those procedures conducted by the Lokayuktha Police in his shop. But, PW.5, even during the course of his cross-examination denied about the Lokayuktha Police conducting all these procedures in his presence by immersing the plastic cover and cotton in the sodium carbonate solution and solution turning into pink colour. According to me, PW.5 failing to support the prosecution case and failing to say about accused taking plastic cover from his shop and failing to say about the subsequent procedures conducted in his shop and in his presence, is a huge set back to the prosecution. Thereby the prosecution has failed to provide the corroboration for the statement of PW.2 and 3 that the accused has brought the plastic cover and asked the complainant to keep the tainted currency notes in that plastic cover.
76. Now it is relevant to consider the evidence of shadow witness, who was examined as PW.4. In his examination in chief, PW.4 has not said anything regarding the accused bringing the plastic cover from the near by shop and receiving the tainted currency notes, by asking the complainant to keep the same on the plastic cover. In the trap cases, designating one of the official and independent witnesses as a shadow witness is with an intention to get an independent corroboration to prove the acceptance of the illegal gratification by the 61 Spl. C.C. No.323/2010 accused. It is because of this reason, shadow witness would be asked to accompany the complainant when the complainant met the accused and hand over the tainted currency notes to him. In this particular case, CW.6-Eshwar Kattimani, who was examined as PW.4, was designated as a shadow witness. But, his evidence goes to show that he was not with the complainant, when this incident of handing over the tainted currency notes has taken place. As deposed by PW.4 himself, he was little distance from them. Even the rough sketch of the spot, which was prepared by the Investigating Officer as per Ex.P.23 and sketch prepared by the Engineer of PWD Department as per Ex.P.22 goes to show that shadow witness was not at all with the complainant or nearby them, at the time of this incident. Only CW.2/PW.3 was with complainant. In-fact it is the Investigating Officer and other members of the trap team, who were quite nearer to the complainant than the shadow witness, as shown in those sketch. It may be because of this reason, shadow witness has not heard the conversation between the accused and the complainant and not seen the actual incident, which occurred there.
77. When the shadow witness has not supported its case regarding the handing over the tainted currency notes by the 62 Spl. C.C. No.323/2010 complainant to accused, he was cross examined by the learned Public Prosecutor by treating him as a hostile witness. Even during the course of his cross-examination PW.4 has specifically denied the suggestion that after the demand was made by the accused complainant came forward to give the currency notes to him, accused brought the plastic cover. PW.4 has specifically denied the suggestion about he giving the statement before the Investigating Officer as per Ex.P.7. Of-course during the course of his cross-examination, PW.4 has admitted about the other procedures conducted by the Lokayuktha Police by dipping the plastic bag and cotton in the solution and same turning into pink colour and Lokayuktha Police seizing the same. But, regarding the material aspect of handing over the tainted currency notes to the accused and accused receiving the same, shadow witness failed to support the prosecution case. So the prosecution had no benefit of the evidence of shadow witness to prove the acceptance of the tainted currency notes by the accused by asking the complainant to keep the same on the plastic cover.
78. CW.7 is the another independent official witness, who was the witness for the pre trap mahazar and also accompanied the Lokayuktha Police at the time of trap and he was with the Lokayuktha Police and in the trap team. CW.7 was examined as PW.8 and during 63 Spl. C.C. No.323/2010 the course of his evidence, PW.8 has not supported the prosecution case regarding acceptance of the tainted currency notes, as he simply said that after receiving the signal from the complainant, they arrived to the spot and CW.20 shown the amount to him and CW.6 and he took the amount and the cover, which was fallen on the ground. As per the case of Investigating Officer, after the arrival of lokayuktha police along with the trap team, accused has thrown away the plastic cover on the ground along with the tainted currency notes. PW.2 has not said about the same in his examination in chief. Again PW.8 was cross examined by the learned Public Prosecutor by treating him as a hostile witness and during the course of his cross-examination, PW.8 has specifically denied the suggestion about the complainant keeping the currency notes in the plastic cover and after seeing them and Lokayuktha Police, accused throwing the plastic cover in which the currency notes were kept. PW.8 also denied about he giving the statement as per Ex.P.14 in respect of this incident. So, not only the shadow witness, even another official independent witness, has failed to support the prosecution case regarding accused accepting the tainted currency notes by asking the complainant to keep it on the cover and on seeing them throwing the plastic cover and tainted currency notes. Both the shadow witness and panch witness not 64 Spl. C.C. No.323/2010 supporting the prosecution case, in respect of material point relating to acceptance of tainted currency notes by the accused, is also a huge set back to the prosecution. When all these independent witnesses have not supported the prosecution case, theory of the prosecution that the accused has accepted the tainted currency notes from the complainant, as an illegal gratification, cannot be accepted by this court only on the basis of the evidence of complainant, his son-in-law and the Investigating Officer. As I said earlier, there is no physical and actual receipt of the tainted currency notes by the accused and there is no positive phenolphthalein test of the hand wash of the accused, to prove the acceptance of the tainted currency notes. Therefore, I hold that the prosecution has failed to prove, even the actual and physical acceptance of the tainted currency notes by the accused, as an illegal gratification.
79. Even if this court accept the theory of the prosecution that there is acceptance of tainted currency notes by the accused, still this accused can not be convicted for the alleged offence, as the prosecution failed to prove the demand of bribe by this accused. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena 65 Spl. C.C. No.323/2010 W/o Balwant Hemke V/s State of Maharastra). It was held by the Hon'ble Supreme Court in the above decision that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the accused, in the absence of evidence to prove that same was demanded by the accused and it was voluntarily accepted.
80. One more decision, which can be considered on this point the decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5740 (M.R.Purushotham V/s State of Karnataka). It was held in the said decision that mere possession and recovery of the tainted currency notes from the accused, without the proof of demand, would not attract offences under Sec. 13(1)(d) of the Prevention of Corruption Act 1988.
81. It is also 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 66 Spl. C.C. No.323/2010 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.
82. Same view expressed by the Hon'ble High Court of Karnataka in a decision reported 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 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.
83. To sum-up my discussion, though the prosecution has proved that the official act is pending before the accused in respect of the complainant, prosecution has failed to prove the demand of bribe amount by the accused, which is an essential requirement to 67 Spl. C.C. No.323/2010 constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. The prosecution has also failed to prove the physical and actual acceptance of the tainted currency notes by the accused, as they were found on the ground, when the trap team arrived to the spot and hand wash procedures of the accused was not made and there is no positive phenpthelene test report of the hand wash of the accused. Even if this court accepts the acceptance of the tainted currency notes by the accused, still the prosecution has failed to discharge the initial burden to prove that it was the bribe amount or an illegal gratification. The prosecution has failed to discharge the initial burden placed on them, so as to get the benefit of presumption provided under Sec.20 of the Prevention of Corruption Act and to shift the onus on the accused to rebut and displace the presumption. Considering all these aspects, I hold that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) 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.
68 Spl. C.C. No.323/2010
POINT No.4:
84. In view of my findings on the above points, accused deserves the order of acquittal. 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, 2 and 4 to 19 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.
MO.3 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 21st day of January 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() 69 Spl. C.C. No.323/2010 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Dr. Sumedha R. Desai PW.2: Abdul Wahabsab PW.3: Sanaulla Shariff PW.4: Eshwar Kattimani PW.5: Thanveerulla Khan PW.6: J.C.Heera Naik PW.7: Smt. Kalpana PW.8: Chandra Swamy PW.9: K.C.Lakshminarayana LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Complaint Ex.P.2(a)&(b): Signatures of PW.2 and 9. Ex.P.3: Currency details sheet Ex.P.3(a & b): Signatures of PW.4 and 8. Ex.P.4: Pre trap mahazar Ex.P.4(a): Signature of PW.2. Ex.P.4(b)to (e,f,g): Signatures of PW.4,8 and 9. Ex.P.5: Trap mahazar Ex.P.5(a to k): Signatures of PW.4 Ex.P.5(l): Signature of PW.8. Ex.P.6: Explanation of the accused. Ex.P.6(a): Signature of PW.4 Ex.P.7: Portion of the statement of CW.6 Ex.P.8: Portion of statement of PW.4 Ex.P.9: Letter issued by CW.10.70 Spl. C.C. No.323/2010
Ex.P.9(a): Signature of PW.6 Ex.P.10: Work allotment order. Ex.P.11: Page No. 52 to 62 of charge sheet. (Ex.D.1) Ex.P.12: Acknowledgement. Ex.P.12(a): Signature of PW.8 Ex.P.13: Voice recorder transciption Ex.P.13(a,b & c): Signatures of PW.8,9 & CW.6. Ex.P.14: Statement of PW.8. Ex.P.15: FIR Ex.P.15(a): Signature of PW.9. Ex.P.16: Letter to PWD Department. Ex.P.16(a): Signature of PW.9 Ex.P.17: Sign of mahazar witnesses documents and etc. Ex.P.18: Recordings transcripted into writing. Ex.P.18(a): Signature of PW.9 Ex.P.19: Sample seal. Ex.P.19(a): Signature of PW.9. Ex.P.20: Report.
Ex.P.21: Letter from BBMP. Ex.P.22: Sketch Ex.P.23: Rough sketch. Ex.P.23(a): Signature of PW.9 Ex.P.24: Chemical analysis report. Ex.P.25: Mobile phone details.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Sample solution bottle MO.2: Hand wash of PW.4-Eshwar Kattimani MO.3: Cash of Rs.10,000-00 MO.4: Cover MO.5: Cotton swiping the floor solution 71 Spl. C.C. No.323/2010 MO.6: CD MO.7: Cover MO.8: CD MO.9: Cover MO.10: CD MO.11: Cover MO.12: Plastic cover swiping solution MO.13: Sample solution MO.14: Plastic cover MO.15: Envelop MO.16: Cotton MO.17: Cover LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Application for license. Ex.D.1(a): Signature of PW.2. Ex.D.2: Copy of the Office Order dated 28-07-2010.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 72 Spl. C.C. No.323/2010 (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, 2 and 4 to 19 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.3 is ordered to be confiscated to the State Government after expiry of appeal period. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)