Bangalore District Court
The State Of Karnataka vs Dr.M.Naveenkumar on 3 October, 2018
1
Spl.C.303/2014
IN THE COURT OF THE LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU CITY
(CCH77)
Present: Sri Sachin Kaushik R.N.,
B.Sc.,LL.M.,
LXXVI Addl.City Civil & Sessions Judge
& Special Judge, Bengaluru.
Dated this the 3rd day of October 2018
Spl.C.No.303/2014
Complainant The State of Karnataka,
By Police Inspector, Karnataka Lokayukta
Police Wing, City Division, Bengaluru.
(Rep. By Spl.Public Prosecutor)
vs
Accused Dr.M.Naveenkumar, s/o Mutthuraya, 40
years, Health Officer, Mahalakshmipuram
Zone, BBMP, Bangalore, incharge Health
Officer, Govindarajanagara Zone and
Deputy Health Officer(West), BBMP,
Bangalore, r/at No.7, Chennakrishnappa
Street, Palace Guttahalli, Bangalore03.
(Rep. By Sri Ashok B.Patil, Advocate)
1.Nature of Offence Offence punishable under Section 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988.
2. Date of commission 30.9.2013 2 Spl.C.303/2014 of offence
3. Date of First 30.09.2013 Information
4. Date of recording of 24.10.2017 evidence
5. Date of closing of 03.09.2018 evidence
6. Date of pronouncement 03.10.2018 of Judgment
7. Result Acting u/s 235(1) Cr.P.C., the accused is acquitted of the offences punishable u/s 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act,1988.
3Spl.C.303/2014 J U D G M E N T The case of the prosecution is that the accused, being public servant, working as Health Officer in BBMP, Mahalakshmipuram Division, Bengaluru, and also Incharge of Govindarajanagar & Rajajinagar Division, on 30.09.2013, at about 3.55 p.m., demanded and accepted bribe of Rs.30,000/ in his office in BBMP, Rajajinagar, Bengaluru, from complainant, for granting Trade License to Fabrication shop. The Lokayukta Police have filed charge sheet against the accused for the offences u/s 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act.
2. The accused has denied the charges and claimed to be tried.
3. The prosecution has examined in all 9 witnesses and got 17 documents and 14 materials marked.
4. The accused has denied the allegations in his S.313 Cr.P.C. statement.
4Spl.C.303/2014
5. Heard Learned Spl.P.P and Learned Advocate for accused.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 7 of Prevention of Corruption Act?
2. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 13(1)(d) R/w 13(2) of Prevention of Corruption Act?
3. What order?
7. The answers to the above points are:
Point No.1 : In the Negative
Point No.2: In the Negative
Point No.3: As per the final order, for the
following:
R E A S O N S
8. Points No.1 and 2: As the Points No.1 & 2 are
interconnected, they are taken together for consideration.
5Spl.C.303/2014
9. PW1, Sri M.N.Narasimhamurthy, complainant, has deposed that, his mother, Smt.Yellamma, is owning commercial building in Nagarabhavi. There are 3 shops in the said building, out of them, two shops were leased to tenants. In another shop, his brother, Byrappa, is running fabrication business in the name of 'Sri Kamadhenu Engineering Works'. His brother, Byrappa had applied for issue of Trade license in respect of fabrication business. On 20.9.2013, he went to BBMP office, Rajajinagar, Bengaluru, and approached the accused for the license. The accused was working as District Health Officer in BBMP. The accused told that the file is in the Commissioner's office, and demanded Rs.50,000/. After bargain, the amount was reduced to Rs.40,000/. Two days later, he met the accused and requested him to reduce the amount further. The accused agreed to accept Rs.35,000/ to do official favour. He paid Rs.5000/ as advance on the same day. The accused demanded to pay balance amount of Rs.30,000/ on coming Monday. He recorded the conversation in his mobile. He lodged the complaint before Lokayukta Police, and the same is marked as Ex.P1.
10. PW1 further states that, he gave Rs.30,000/ to the 6 Spl.C.303/2014 Lokayukta Inspector comprising 60 notes of Rs.500/each. The list of currency notes were prepared by Lokayukta Police, and the Lokayukta Police introduced him to witnesses, and also narrated the gist of complaint to the witnesses. The notes were smeared with Phenolphthalein powder and CW2, Manjunath who has been examined as PW2, was asked to place the currency notes in the right side pant pocket, and he was asked not to touch the same. Button Camera was installed to his shirt. Both hands of PW2 turned to pink colour. PreTrap Mahazar at Ex.P2 was drawn after being videographed. PW1 further states that all of them went to the BBMP Office in Rajajinagar, in the office vehicle, and stopped near BBMP Office at about 3.30 p.m. The Lokayukta Inspector had instructed him to give signal by wiping hair with his right hand in case accused received the money. PW2 was also instructed to follow him and observe the happenings. He and PW2 went inside the BBMP Office and met the accused. He asked the accused whether the license was ready. The accused told him that the license is ready and it has to be brought from the Commissioner's office. He asked accused when will it be handed over to him. The accused told him that he will hand over the license the next day. The accused gave 7 Spl.C.303/2014 signal by moving his neck towards down. PW1 gave the tainted currency notes of Rs.30,000/ to the accused. The accused received the said amount and placed the same in his right side pant pocket. The accused told him to come next day afternoon and take the license.
11. PW1 further states that, he came out and gave signal by wiping his hair with right hand. The Lokayukta Inspector with Trap Team members came inside the chamber of accused. The accused asked him why he came back. PW2 told the accused that he has been trapped. The right and left hand fingers were dipped in sodium carbonate solution which turned to pink colour and the same was seized. The Lokayukta Inspector asked the accused about the amount and the accused said that he has kept in his right side pant pocket. PW2, Manjunath removed the currency notes from the right side pant pocket of the accused and placed it on the table. The said currency notes were tallied with the notes sheet and found to be correct and seized. All the procedure was videographed. The file relating to issue of license was seized. The pant of accused was also seized by making alternate arrangement. All of them came to the Lokayukta Police 8 Spl.C.303/2014 station and he returned the Button Camera to the Lokayukta Inspector. Trap Mahazar was drawn. He also gave Digital Voice Recorder and it was played in the presence of witnesses, burnt to CD and transcribed. The contents of Button Camera were also burnt to CD.
12. In the crossexamination of PW1, in paragraph No.22 of deposition, PW1 has said that CW2/PW2, shadow witness, did not accompany him to chamber of accused, and PW2 was standing outside the chamber. PW1 has denied the suggestion that, he forcibly thrust the bribe amount in the hands of accused, and that accused had told him that his document is ready.
13. PW2, Sri Manjunatha N., working as Assistant in Primary & Secondary Education Department then, Pancha/shadow witness, has deposed that, on 30.9.2013, he and CW3/PW4, H.M.Gangadhar were called by Lokayukta Police to act as witness in trap. They went to Lokayukta Police station at about 1.00 p.m. and met CW15, Lokayukta Inspector. PW1 was present and they were introduced to him. The contents of the complaint were made known to them, and copy of the complaint was also given 9 Spl.C.303/2014 to them. It was alleged in the complaint that, the accused was demanding bribe of Rs.50,000/ and he later on reduced to Rs.35,000/. The accused has already received Rs.5000/and insisted for paying balance amount of Rs.30,000/. PW1 gave 60 currency notes of Rs.500/each i.e. Rs.30,000/. The list of the notes was prepared and the same is marked as Ex.P3. The said notes were smeared with Phenolphthalein powder and PW4 placed the same in the right side pant pocket of PW1. Both the hand fingers of PW4, Gangadhar were made to dip in sodium carbonate solution and it turned to pink colour. The entire proceedings were videographed and the articles were seized with Metal seal having letter 'P'. PW1 was instructed not to touch the amount till it was paid to accused and to pay only on demand. PW1 was also instructed to give signal by wiping his hair if the accused received the amount and PW2 was instructed to follow the complainant. PreTrap proceedings is marked as Ex.P2. The voice recorder produced by the complainant was played in their presence, converted it to CD and transcribed. The transcription is marked as Ex.P4.
14. PW2 further states that at about 2.30 p.m., on 30.9.2013, 10 Spl.C.303/2014 all of them proceeded towards BBMP Office, Rajajinagar, and reached there at about 3.40 p.m. He was standing outside the BBMP Office near the door. He did not go inside the office, as the accused will become suspicious. 510 minutes later, PW1 gave preinstructed signal. The Trap Team came inside and PW1 pointed to the accused. The Lokayukta Inspector disclosed his identity, and informed the purpose of visit. Lokayukta Inspector arrested the accused. PW1 told the Lokayukta Inspector that the accused received the amount and kept the same in right side pant pocket. As per the instructions of Lokayukta Inspector, PW2 removed the tainted currency notes from the right side pant pocket of accused. The said notes were verified, tallied and found to be correct and an endorsement was made to that effect. Both the hand fingers were made to dip in the sodium carbonate solution and the said solution turned to pink colour. The file relating to the complainant was seized from the table of the accused . The voice of the accused was got identified by his officer and after making alternate arrangement, the pant of the accused was also seized. PW2's statement was recorded and the explanation of accused was taken. The transcription is marked as Ex.P5 and Trap Mahazar as Ex.P6. PW2 further states that, the 11 Spl.C.303/2014 Trap Team entered the BBMP Office, the hand fingers of accused were first washed in sodium carbonate solution and thereafter currency notes were recovered.
15. In the crossexamination, PW2 has stated in paragraph No.20, 6th line, that he has not overheard the conversation between PW1 and accused, and he has not seen, what transpired between PW1 and accused in the chamber. Hence, the evidence of PW2 is of not much use to the prosecution.
16. PW3, Sri M.Lakshminarayana, working as Commissioner, BBMP then, has deposed that he received the entire records of the case along with letter dated 28.11.2013, from ADGP, Karnataka Lokayukta, for according Sanction to prosecute the accused. On going through the records and finding prima facie case, he has accorded Sanction and the same is marked as Ex.P7.
17. PW3, in crossexamination has denied that he has accorded Sanction, without application of mind. This court finds the Sanction order, Ex.P7, running into 4 pages, passed after due application of mind, and hence, legal and valid.
12Spl.C.303/2014
18. PW4, Sri H.M.Gangadhara, another Pancha, working as Junior Assistant in Primary & Secondary Education Department then, has deposed that, on 30.9.2013, he was summoned to Lokayukta Police station along with PW2, and he deposed the same as PW2 relating to PreTrap procedure and the trap procedure. He has identified the Trap Mahazar, Ex.P6 and he has produced the Metal Seal which is marked as MO1.
19. PW4, has denied the suggestion of Learned Advocate for accused that, tainted currency notes were on the table of accused. At paragraph No.18, 3rd line, he states that, Trap Mahazar/Ex.P6 was prepared in Lokayukta Office.
20. PW5, Smt.Shilpa M, working as D.C(Administration) in BBMP then, has deposed that, on 7.12.2013 she has received requisition from Lokayukta to furnish service particulars of accused. She has furnished the service particulars along with covering letter which is marked as Ex.P8.
21. Learned Advocate for accused has submitted that, he has no 13 Spl.C.303/2014 crossexamination of PW5.
22. PW6, Smt.Yashoda S., working as Junior Engineer in PWD then, has stated that, she has prepared the sketch pertaining to this case. On 23.11.2013, she went to the spot along with Police Inspector and prepared the rough sketch and thereafter in her office, she prepared the sketch of the spot which is marked as Ex.P9.
23. PW6, has denied the suggestion that she has not visited the spot.
24. PW7, Dr.Ravishankar Katkar, working as Chemical Examiner in Primary Health Institute, K.R.circle, Bengaluru, then, has deposed that, on 7.10.2013, he received 7 articles from Lokayukta Office containing currency notes and the solutions and pant for chemical examination. He examined all the articles on the same day, and 60 notes of Rs.500/each is marked as MO4. He has given the Report that the articles contained traces of Phenolphthalein powder in them. The pretrap solutions are marked as MO5 & 6 and the right hand and left hand finger wash 14 Spl.C.303/2014 of accused are marked as MO7 to 11. The black colour pant is marked as MO12.
25. Nothing useful to accused has come up in cross examination of PW7, and the solution turning to pink colour is not seriously disputed, as accused admits his contact with currency notes.
26. PW8, Dr.Manoranjan Hegde, working as Health Officer, BBMP West Zone then, has deposed that, he has identified the voice of the accused on 30.9.2013, and has identified the CD containing the conversation between the complainant & accused before trap and at the time of trap. His Report is marked as Ex.P10. The documents pertaining to the accused are marked as Ex.P11.
27. PW8 in the crossexamination, paragraph No.6, has said that accused has no authority to grant Trade License. But this aspect is not useful to accused, because, the accused in cross examination of PW1, has admitted that the document of accused is ready.
15Spl.C.303/2014
28. PW9, Shivashankar N.G., working as Police Inspector, Karnataka Lokayukta then, has deposed that, on 30.9.2013, at 11.45 a.m. PW1 has given written information that the accused has demanded bribe of Rs.30,000/. He registered the complaint and drew FIR. FIR is marked as Ex.P13. He deposed that he has followed pretrap procedure and the PreTrap Mahazar is identified by him which is already marked as Ex.P2. He has identified all the documents and all the material objects, and the PreTrap proceedings videographed is marked as MO13. He further states that at 2.30 p.m. all of them left to the office of the accused, reached there at 3.40 p.m. at about 3.55 p.m., PW1 gave perinstructed signal by wiping his head. All of them went to the chamber of the accused, PW1 told him that accused is the person who has demanded Rs.30,000/ from him and kept in his right side pant pocket. There was another person along with accused by name, Nagabhushan, Senior Health Inspector, working in Chamarajpet. He notes the name and address of the accused and sodium carbonate solution prepared in two bottles. He got right and left fingers dipped in the same and the same turned to pink colour. Witness has identified MO7 to 11. He got 16 Spl.C.303/2014 the notes MO4 removed from the right side pant pocket of accused through PW2. He also found Rs.6390/ in the same pocket removed by PW2. On finding that it belonged to accused, it was returned to accused. He prepared rough sketch of the spot and the same is marked as Ex.P14. He got the documents pertaining to PW1 from Senior Health Officer, Dr.Manoranjan Hegde/PW8.
29. PW9 further states that they returned to Lokayukta Police station and there the pant was seized after making alternate arrangement. He got the voice of accused identified through PW8 and obtained Report at Ex.P10. The entire trap proceedings were videographed, burnt to CD and CD is marked as MO14. All the articles were seized and sealed with Metal Seal containing letter 'P' and the Metal seal was given to PW4. The acknowledgment of the Metal Seal is marked as Ex.P15, and explanation of accused is marked as Ex.P16. He identifies the Trap Panchanama, Ex.P6. He received the work details of accused through Joint Commissioner, BBMP. The same is marked as Ex.P17. He also received service details, got sketch of the spot prepared, received FSL Report after sending the articles 17 Spl.C.303/2014 to FSL, obtained Sanction and then filed charge sheet.
30. PW9, Investigating Officer, in paragraph No.7, last 5th line, in chiefexamination, has said that, there was another person with accused, by name, Sri Nagabhushan, Senior Health Inspector, working in Chamarajpet. In crossexamination, paragraph No.19, 4th line, PW9 states that, he has not recorded statement of Nagabhusan. When Nagabhushan, was an eye witness, as per the Investigating Officer, nonexamination of said witness is fatal to prosecution, and makes the prosecution case doubtful, when PW2, shadow witness, has also told that, he did not go inside the chamber, did not see or overhear. The evidence of PW1 does not get corroborated at all by any evidence. Even statement of accused, Ex.P16, says that MO4 was kept on table.
31. PW9 in the crossexamination, paragraph No.16, has also stated that, he has not taken sample voice of complainant/PW1, and not sent the CD i.e., MO2 to Forensic Science Laboratory, for examination, and not seized the mobile that contained the conversation, nor examined the mobile about date of conversation.
18Spl.C.303/2014
32. The decision reported in 2016(1) KCCR 815, that complainant's evidence needs corroboration, as he is interested witness, is applicable to the facts and circumstances of this case. So also the decisions submitted by Learned Advocate for accused reported in 2016 Crl.L.J. 3066, 2014Cr.L.J. 2433, AIR 2014 SC 3798 & Laws (KAR) 2004 393, on nonexamination of material witness and noncorroboration, are also applicable to the facts and circumstances of this case
33. All this shows that, in absence of corroboration to evidence of PW1, nonexamination of eye witness, Nagabhushan by Investigating Officer, not sending the CD and source of recording i.e. mobile to Forensic Science Laboratory, not conducting Trap Mahazar, Ex.P6 at the spot, the prosecution has failed to prove guilt of accused beyond reasonable doubt. The benefit of doubt is given to accused, and Points No.1 & 2 are answered in the Negative.
34. Point No.3: For the aforesaid reasons, this court proceeds to pass the following:
19Spl.C.303/2014 O R D E R Acting u/s 235(1) Cr.P.C., the accused is acquitted of the offences punishable u/s 7, 13(1)
(d) R/w 13(2) of Prevention of Corruption Act, 1988.
Bail bonds of accused stand cancelled.
MO1 to 14 shall be disposed as per law after appeal period.
(Dictated to the Judgment writer, on computer, and then pronounced by me in the open court on this the 3rd day of October 2018) (Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City 20 Spl.C.303/2014 A N N E X U R E List of witnesses examined on behalf of the prosecution :
PW1 M.N.Narasimhamurthy PW2 Manjunatha N. PW3 M.Lakshminarayana PW4 H.M.Gangadhara PW5 Shilpa M PW6 Yashodha S PW7 Dr.Ravishankar Katkar PW8 Dr.Manoranjan Hegde PW9 Shivashankar N.G
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint Ex.P.1(a) Signature of PW1 Ex.P.1(b) Signature of PW9 Ex.P.2 Pretrap Mahazar Ex.P.2 (a) Signature of PW1 Ex.P.2(b) Signature of PW2 Ex.P.2(c) Signature of PW4 Ex.P.2(d) Signature of PW9 Ex.P.3 Currency notes Ex.P.3(a) Signature of PW2 Ex.P.3(b) Signature of PW4 Ex.P.3(c) Signature of PW9 21 Spl.C.303/2014 Ex.P.4 transcription Ex.P.4(a) Signature of PW2 Ex.P.4(b) Signature of PW4 Ex.P.4(c) Signature of PW9 Ex.P.5 Transcription Ex.P.5(a) Signature of PW2 Ex.P.5(b) Signature of PW4 Ex.P.5(c) Signature of PW9 Ex.P.6 Trap Mahazar Ex.P.6(a) Signature of PW2 Ex.P.6(b) Signature of PW4 Ex.P.6(c) Signature of PW9 Ex.P.7 Sanction order Ex.P.7(a) Signature of PW3 Ex.P.8 Covering letter Ex.P.8(a) Signature of PW5 Ex.P9 sketch Ex.P.9(a) Signature of PW4 Ex.P.10 Report Ex.P.10(a) Signature of PW8 Ex.P.10(b) Signature of PW9 Ex.P.11 Certified copies of documents pertaining to this case Ex.P.11(a) Signature of PW5 Ex.P.12 Report Ex.P.12(a) Signature of PW8 Ex.P.13 FIR Ex.P.13(a) Signature of PW9 Ex.P.14 Rough sketch Ex.P.14(a) Signature of PW9 Ex.P.15 Acknowledgment 22 Spl.C.303/2014 Ex.P.15(a) Signature of PW9 Ex.P.16 Explanation of accused Ex.P.16(a) Signature of PW9 Ex.P.17 Work details of accused
List of materials marked on behalf of the prosecution:
MO1 Metal Seal MO2 CD MO3 CD MO4 currency notes (Rs.500/ x 6= 30,000) MO5 sample solution MO6 solution turned to pink colour MO7 to 11 left & right fingers solutions MO12 black pant MO13 CD MO14 CD
List of witnesses examined on behalf of the accused:
Nil List of documents marked on behalf of the accused:
Nil (Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & 23 Spl.C.303/2014 Special Judge, Bengaluru City