Bangalore District Court
State Of Karnataka Represented By vs Kiran.V. S/O Venkatesha on 10 May, 2017
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 10th day of May, 2017
PRESENT:
Shri GOPAL, B.Com.LL.B.,
XXIII Additional City Civil and Sessions Judge and
Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.130/2014
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Sri D. Ramesh Babu, Public
Prosecutor)
V/s
Accused: Kiran.V. S/o Venkatesha, aged about
28 years, Police Sub-Inspector,
Basavanagudi Police Station,
Bengaluru city. Resident of No.15/2,
behind Nandini Provision Stores, Near
M.P.M. Lay Out, Mallatthahalli Post,
Kengunte, Bengaluru-56.
(By Sri I.S.Pramod Chandra,
Advocate)
2 Spl.C.C.No.130/2014
JUDGMENT
1. Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru urban has submitted charge sheet against the accused for the offences punishable under section 7 read with section 13(2) of the Prevention of Corruption Act, 1988.
2. Case of the prosecution in brief are that the accused being public servant working as Police Sub-Inspector, Basavanagudi police station, Bengaluru and the complainant M.S.Shivalinge Gowda running 'Om Shakthi Cyber Centre' No.5 and 56, GRC Complex, DVG Road, Basavanagudi, Bengaluru. The accused visited the said Cyber Centre of complainant and took the computer systems and registers maintained by the complainant in the cyber centre and the accused has demanded bribe of Rs 10,000/- from the complainant to do official favour. Unwilling to pay the bribe 3 Spl.C.C.No.130/2014 amount, CW 1 M.S.Shivalinge Gowda approached the Lokayuktha police station along with C.D which consists of conversation of accused and complainant with regard to the demand of bribe and lodged complaint at Ex P12 with CW 20 Sri.Poovaiah, Investigating Officer who registered the case in Crime No.32/2013 for the offence punishable under section 7 of The Prevention of Corruption Act, 1988. Immediately, trap was organized and secured CW.2 M.Mahadevappa and CW.3 Basavaraju B.Bhajanthri, government official witnesses to act as trap witnesses. CW 1 M.S.Shivalinge Gowda produced 20 currency notes of denomination of Rs.500/- each amounting to Rs 10,000/- before the Investigating Officer and in the presence of the witnesses. Serial number of the said currency notes were recorded on a sheet of paper and the said currency notes were smeared with 4 Spl.C.C.No.130/2014 phenolphthalein powder and it was kept in the right side pant pocket of CW.1 through CW.2 Mahadevappa. After observing the formalities, CW.20 drew pre trap mahazar on 22.04.2013. Thereafter, the complainant, official witnesses, CW 20 and the raiding staff went to the police station of the accused and found the accused was remained absent in the police station and return to the Lokayuktha police station and drew the mahazar. Again on the next day on 25.04.2013 and 26.04.2013 they went to the police station of the accused, but the accused has not made any demand and accept the bribe amount of Rs 10,000/- from the complainant. Therefore, CW 20 seized the record pertaining to the complainant and ordered to return CPU and computer system to CW 1. On enquiry, the accused has given his explanation on 26.04.2013 to CW 20. The Investigating Officer collected the C.D 5 Spl.C.C.No.130/2014 which consists of conversation of accused and CW 1 with regard to the demand of bribe and the same has been transferred to the C.D through computer and the same has been sent to FSL for examination and after receipt of the report from the Assistant Director of FSL, the Investigating Officer on completion of the investigation and obtaining sanction order to prosecute the accused, laid the charge sheet against the accused before the Court for the alleged offence.
3. The accused was secured and supplied copies of the charge sheet as contemplated under section 207 Cr.P.C. After hearing, on 01.07.2016 charge was framed against the accused for the offences punishable under section 7 of the Prevention of Corruption Act, it was read over and explained to the accused who pleads not guilty and claimed to be tried. 6 Spl.C.C.No.130/2014
4. The prosecution to prove the guilt against the accused examined five witnesses as PWs.1 to 5 and got marked documents at Exs.P.1 to P.26 and MOs.1 to 10 and 10(a). After closure of the prosecution side, the accused was questioned under section 313 Cr.P.C. wherein he has denied the incriminating circumstances appeared against him as false and he has not chosen to adduce evidence in support of his defence.
5. Having heard the arguments on both sides and taking into consideration of the evidence on record coupled with the documents, the following points arise for consideration.
a. Whether the prosecution proves that the accused being public servant holding the post of Police Sub-Inspector, Basavanagudi Police Station, Bengaluru city has demanded bribe of Rs 10,000/-
from complainant CW 1 M.S.Shivalinge 7 Spl.C.C.No.130/2014 Gowda who was running 'Om Shakthi cyber centre', No.5 and 56, GRC Complex, DVG Road, Basavanagudi, Bengaluru to do the official favour and thereby the accused has committed the offence punishable under section 7 of the Prevention of Corruption Act, 1988 ?
b) What order ?
8. My findings on the above points are:
Point No.1: In the negative Point No.2: As per final order, for the following:
REASONS
9. Point No.1: Undisputed fact is that the accused is a public servant working as Police Inspector, Basavanagudi Police Station during the relevant period. According to the prosecution, PW 3 M.S.Shivalinge Gowda was running 'Om Shakthi Cyber Centre' No.5 and 56, GRC Complex, DVG Road, Basavanagudi, Bengaluru. It is not in dispute 8 Spl.C.C.No.130/2014 that the accused visited the cyber centre of PW 3 complainant and took the computer system and registers pertaining to the customers maintained by the complainant and it is alleged that the accused has demanded illegal gratification of Rs 10,000/- to do official favour. Defence of the accused is bare denial of the case of the prosecution in toto.
10. Before going to decide the merits of the case, it is necessary to decide the validity of the sanction obtained by PW.5 Poovaiah (CW 20) the Investigating Officer for prosecuting the accused for the alleged offence.
11. Valid sanction is sine qua non in the case under the Prevention of Corruption Act 1988. In view of section 19 of the Act the Court cannot take cognizance of the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988 9 Spl.C.C.No.130/2014 alleged to have been committed by the public servant except with the previous sanction by the competent authority. It is well settled law that the sanction order can be challenged on two grounds; one is the competency of the sanctioning authority and another is the non-application of mind by the sanctioning authority.
12. Ex P11 is the sanction order dated 17.02.2014 issued by PW 2 Raghavendra Owradkar, Commissioner of Police, Bengaluru City, who deposed that he received the requisition from the Lokayuktha police station on 29.01.2014 seeking sanction order for prosecution of the accused along with the prosecution papers, it accompanied with the copy of the Complaint, FIR, pre trap mahazar, trap mahazar, FSL Report, statement of witnesses, explanation of the accused and transcription of the voice recordings. After verifying of the records, he found prima facie involvement of the accused with regard 10 Spl.C.C.No.130/2014 to the demand of bribe to do the official favour from the complainant and therefore, he issued the sanction order Ex P1. In the course of cross examination, it is elicited that the accused has not accepted the illegal gratification from the complainant but he says that the accused has demanded the bribe to do the official favour. From the evidence of PW 2, it proves that the accused has not disputed the competency of issuing of the sanction order to prosecute the accused and application of mind by PW 2 while issuing the sanction order Ex P11. Thus, the prosecution proves that PW 2 is a competent person for issuing the sanction order and also PW 2 applied his mind while issuing the sanction order at Ex P11.
13. Now the question arises for my consideration is whether the accused has demanded bribe from the complainant to do official favour. It is well settled law that the demand and acceptance of amount as illegal 11 Spl.C.C.No.130/2014 gratification is sine qua non for constituting the offence under the Act. I need to note that the prosecution has to establish that there was illegal demand of bribe by the accused from PW 3 M.S.Shivalinge Gowda (complainant). The prosecution in order to prove the demand of bribe, has relied upon the oral evidence of PW 3 and the complaint at Ex P12.
14. On perusal of Ex P12 complaint dated 22.04.2013, it reveals that he was running a cyber centre in the name of 'Om Shakthi Cyber Centre' at No.5 and 56, GRC Complex, DVG Road, Basavanagudi, Bengaluru. The accused being Sub-Inspector of Police of Basavanagudi police station visited the Cyber Centre of the accused and noticed that the complainant has not maintained proper registers and C.C TV in the centre. Therefore, he took out the computer system, CPU to the police station and told him to obtain permission from the concerned 12 Spl.C.C.No.130/2014 authority and then only to run cyber centre in the said locality. Further, Ex P12 reveals that the accused has demanded bribe of Rs 10,000/- to return the computer system and to run cyber centre in the locality. Unwilling to pay the bribe amount, he approached the Lokayuktha Police on 22.04.2013 produced CD which consists of conversation of demand of bribe by the accused with CW 20 and lodged complaint at Ex P12 with PW 5 Poovaiah Investigating Officer. Pursuant to his report at Ex P12, PW 5 registered the case in crime No.32/2013 for the alleged offence punishable under section 7 of The Prevention of Corruption Act, 1988.
15. It is important to note that PW 3 complainant M.S.Shivalinge Gowda, PW 1 Mahadevappa, government official witness, PW 5 C.W.Poovaiah Investigating Officer have deposed about the conduct of the pre trap mahazar on 22.04.2013 at Ex P2 and also failure trap mahazar on 13 Spl.C.C.No.130/2014 22.04.2013 and 25.04.2013 as per Ex P4 and Ex P7 respectively and trap mahazar on 26.04.2013 as per Ex P10. The accused has not disputed the said mahazar at Ex P2, Ex P4 and Ex P7. The said mahazars disclose that the accused has not accepted illegal gratification from the complainant PW 3 M.S.Shivalingegowda.
16. The prosecution to prove the demand of bribe by the accused has relied upon the oral evidence and electronic mode evidence as secondary evidence. On reading of oral testimony of PW 3, who is the complainant, who has deposed that the accused has not demanded bribe to do the official favour to return computer system and CPU. One constable Chandru has demanded bribe from him and to return computer system, CPU and to run Om Shakthi Cyber Centre in the locality. He was cross examined by the learned Public Prosecutor. In the course of cross examination he denied 14 Spl.C.C.No.130/2014 that he has recorded the version of demand of bribe by the accused with him and the CD given to the PW 5 at the time of lodging complaint at Ex P12. In the cross examination, it is elicited that PW 3 alone approached the accused on 26.4.2013 and the accused has refused to receive illegal gratification of Rs 10,000/-. I need to note that the PW 3 has stated that one Chandru, Police Constable of Basavanagudi police station has demanded Rs 10,000/- as illegal gratification to return the computer system and CPU to him. In the cross examination, he depose the fact that Chandu has demanded illegal gratification of Rs 10,000/- on 19.04.2013 to return the computer system to him. He denied that the sample voice of the accused was taken by PW 5 Investigating Officer in his presence by drawing mahazar at Ex P5. As per Ex P12 and evidence of PW 3 proves that the complainant has not demanded illegal gratification from 15 Spl.C.C.No.130/2014 the complainant to do the official favour to return the computer system to him. One Chandru Police constable of Basavanagudi police station has demanded illegal gratification to do the official favour and not by the accused. So, the evidence of PW 3 complainant is not helpful to the case of the prosecution to prove the demand of bribe.
17. The prosecution has relied upon the evidence of eye witness PW 1 Mahadevappa who deposed about conduct of pre trap mahazar in the lokayuktha police station as per Ex P2 on 22.04.2013 and failure trap mahazar as per Ex P4 dated 22.04.2013 and Ex P7 dated 25.04.2013 and trap mahazar at Ex P10 on 26.04.2013. The accused has not accepted the illegal gratification from PW 3 complainant on 26.04.2013. The Investigating Officer has seized the records by drawing mahazar as per Ex P5 and took the sample voice of the accused and 16 Spl.C.C.No.130/2014 transferred the voice to the CD and the said CD has been seized by PW 5. The evidence of PW 1 is not helpful to prove the demand of bribe by the accused from complainant PW 3. CW 3 Basavaraju B.Bhajanthri has not been examined by the prosecution as he has reported to be dead. Thus, the oral evidence of PW 3 complainant, PW 5 Investigating Officer and PW 1 mahazar witness do not prove the demand and acceptance of bribe by the accused from the complainant/PW 3 to do the official favour.
18. The prosecution to prove the demand of bribe has relied upon the transcription of the conversation between the accused and the complainant as secondary evidence. According to the prosecution, PW 3 complainant lodged report at Ex P12 along with CD which consists of demand of bribe by the accused with PW 3 complainant. The said fact 17 Spl.C.C.No.130/2014 has been denied by the complainant/PW 3 in the course of cross examination made by the prosecution. He deposed that PW 5 took Ex P3 containing the transcription of conversation between the accused and the complainant with regard to the demand of bribe made by the accused on 19th and 20th April 2013, Ex P6 the transcription of conversation between the accused and the complainant on 24.04.2013, Ex P8 the transcription of conversation between the complainant and the accused held on 24.04.2013. The prosecution has also relied upon the report of PW 4 Kumari Neeru, Assistant Director of Cyber and Audio Video Forensic Truth Lab, Bengaluru who deposed that she has received CD containing the recordings along with the sample voice of the accused. After examination she found the sample voice of the accused and disputed voice in the CD are tallied. She admits that the 18 Spl.C.C.No.130/2014 Investigating Officer has not sent the electronic mode in which the complainant recorded the conversation and same has been transferred to CD and also certification held to the conversation of transcription and conversation transferred to CD. PW 5 has not produced the certification on the recording the transcription at Exs P3, P6 and P8. Even on perusal of the said transcription Exs P3 and P6 does not disclose the demand of bribe by the accused to return the computer system and CPU to PW 3 complainant. There is conversation between the accused and PW 3 with regard to the return of computer system and CPU in which it is clear that the accused instructed the complainant to obtain permission from the competent authority to run cyber centre in the locality and to install CC TV in the cyber centre and also to maintain necessary list in the cyber centre, then only he will 19 Spl.C.C.No.130/2014 return the computer system and CPU taken from cyber centre of PW 3. The said fact has been clearly stated by the accused in his explanation at Ex P9 wherein he clearly stated that he has not demanded any kind of illegal gratification from the complainant PW 3 to return the CPU and to run the cyber centre in the locality. The evidence of PW 3 proves that he was running the cyber centre without obtaining valid licence from the competent authority and he was not maintained proper register in the cyber centre, which proves that the complainant was illegally running the cyber centre in the locality of the Basavanagudi, Bengaluru.
19. To prove the demand of bribe, the prosecution has relied upon the electronic records such as MOs 3 to 7 CDs, MO 8 phone call register MO 9 and MO 10 CDs as secondary evidence without certification 20 Spl.C.C.No.130/2014 as contemplated under section 65B of the Indian Evidence Act. PW 5 Investigating Officer who has not obtained the certificate from the concerned for having converted the conversation into the CD and the conversation has been transcripted in the Lokayuktha police station. I need to note that the Investigating Officer has relied upon the electronic record and report to prove the demand of bribe from CW.1. PW.5 Investigating Officer has not obtained the certificate from the concerned for having converted the conversation into CD. The CDs at MOs.3, 4, 5, 6 and 7 and the transcriptions at Exs.P.4, 7 and 9 are the secondary evidence of electronic records. It depends upon the satisfaction of mandatory conditions imposed in section 65-B of the Evidence Act. In the absence of compliance of the conditions in section 65-B of the Act the Court cannot rely upon the said documents to hold 21 Spl.C.C.No.130/2014 that the accused has demanded bribe from the complainant in view of the decision reported in (2014) 10 Supreme Court Cases page 473 in the case of Anvar P.V. V/s P.K. Basheer and others.
20. Thus, the prosecution has failed to prove the demand of bribe by the accused from PW 3 by placing satisfactory oral evidence and also the electronic evidence by the complainant and not complied the mandatory provisions of section 65B of the Indian Evidence Act. The oral testimony coupled with electronic evidence does not prove the demand of illegal gratification by the accused from PW 3. He has instructed PW 3 to obtain licence from the concerned authority and to maintain proper registers in the cyber centre. Except the said instructions he has not demanded any illegal gratification. The said fact has been reflected in the oral evidence coupled with the 22 Spl.C.C.No.130/2014 transcription. In spite of it, the Investigating Officer has submitted the charge sheet against the accused for the offence punishable under section 7 of The Prevention of Corruption Act, 1988 for the reason best known to him. Thus, the prosecution has failed to bring home the guilt of the accused by placing cogent, consistent and corroborative evidence. Accordingly, I answer point No.1 in the negative.
21. Point No 2: In the result, I proceed to pass the following:
ORDER Acting under section 248(1) Cr.P.C, the accused Kiran.V is acquitted of the offences punishable under Section 7 of Prevention of Corruption Act, 1988. He is set at liberty.
His bail bond stands cancelled.
MOs.3, 4, 5, 6, 7, 9 and 10 be returned to Karnataka Lokayuktha, Bengaluru and 23 Spl.C.C.No.130/2014 MOs.1, 2, 3(a), 4(a), 5(a), 6(a), 7(a), MO 8, MO 8(a), MO 9(a) and MO 10(a) be destroyed after the appeal period is over.
(Dictated to the Judgment Writer, transcribed by him, printout taken, corrected, signed and then pronounced by me in open Court on this the 10th day of May, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: M.Mahadevappa PW.2: Raghavendra Howradkar PW.3: M.S.Shivalinge Gowda PW.4: Smt.S.Neeru PW.5: C.W. Poovaiah
List of documents marked on behalf of prosecution:
Ex.P.1: Sheet containing details of currency notes Ex.P.1(a) : Signatures of PW.1 Ex.P.1(b) : Signatures of PW.3 Ex.P.1(c) : Signatures of PW.5 24 Spl.C.C.No.130/2014 Ex.P.2: pre trap mahazar Ex.P.2(a) : Signatures of PW.1 Ex.P.2(b) : Signatures of PW.3 Ex.P.2(c) : Signatures of PW.5 Ex P3: Sheet containing transcription of recording in the Mobile Ex P3(a) : Signature of PW 1 Ex.P.3(b) : Signatures of PW.3 Ex.P.3(c) : Signatures of PW.5 Ex P4 : Failure trap mahazar Ex.P.4(a) : Signatures of PW.1 Ex.P.4(b) : Signatures of PW.5 Ex P 5 : Compact Disc : Seizure Mahazar Ex.P.5(a) : Signatures of PW.1 Ex.P.5(b) : Signatures of PW.5 Ex P6 : Sheet containing the transcription of voice Recordings Ex P6(a) : Signature of PW 1 Ex.P.6(b) : Signatures of PW.3 Ex.P.6(c) : Signatures of PW.5 Ex P7 : Further failure trap mahazar Ex.P.7(a) : Signatures of PW.1 Ex.P.7(b) : Signatures of PW.5 25 Spl.C.C.No.130/2014 Ex P8 : Sheet containing the transcription version sample of Voice Ex P8(a) & 8(b) Ex P9 : Explanation Ex.P.9(a) : Signatures of PW.1 Ex.P.9(b) : Signatures of PW.5 Ex P 10 : Trap mahazar Ex.P.10(a) : Signature of PW.1 Ex P10(b) : Signature of PW 3 Ex.P.10(c) : Signature of PW.5 Ex P11 : Sanction order Ex P11(a) : Signature of PW 2 Ex P 12 : Complaint Ex P12(a) : Signature of PW 3 Ex P12(b) : Signature of PW 5 Ex P 13: FSL report Audio/Video Ex P13(a) : Signature of PW 4 Ex P 14: Sheet containing the transcription of C.D Ex P 15: Transcription sheet dated 20.04.2013 Ex P15(a) : Signature of PW 3 Ex P16 : Sheet containing the mobile call Ex P16(a) : Signature of PW 3 Ex P16(b) : Signature of PW 5 26 Spl.C.C.No.130/2014 Ex P 17 : 161 statement of PW 3 Ex P 18 : 161 statement of PW 3 Ex P 19 : Requisition letter Ex P 20 : Attested copies of documents Ex P 21 : Specimen seal letter Ex P 22: Acknowledgment letter Ex P 23 : Report of Smt.Gangamma Ex P 24: Service particulars of accused Ex P 25: Copy of Assets and liabilities Ex P 26 : Mobile call details List of material objects marked on behalf of the prosecution:
MO 1: Bottle containing sample solution MO.2: Bottle containing hand wash of witness M.Mahadevappa MO 3 : Compact disc MO 3 (a) : Cover MO 4 : Compact disc pre trap video recording MO 4 (a) : Cover MO 5 : Compact disc failure trap video MO 5 (a) : Cover MO 6 : Compact disc mobile call recordings MO 6 (a) : Cover 27 Spl.C.C.No.130/2014 MO 7 : Compact disc voice recorder of AGO MO 7 (a) : Cover MO 8 : Phone call recordings MO 8 (a) : Cover MO 9 : Compact disc button camera and voice recording MO 9 (a) : Cover MO 10 : Compact disc : trap video recording MO 10 (a) : Cover List of witnesses examined on behalf of accused:
Nil List of documents marked on behalf of accused:
[GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.