Bangalore District Court
State Of Karnataka Represented By vs Syed Ibrahim S/O Syed Hussain on 10 July, 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 July, 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.49/2013
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Public Prosecutor)
V/s
Accused: 1. Syed Ibrahim S/o Syed Hussain
Peer, Aged about 50 years, Assistant
Engineer, B.B.M.P., Pulakeshinagar
Ward No.78, Bengaluru. Residing at
No.368, 5th Cross, Arakere, Lakshmi
Layout, Bannerghatta Road,
Bengaluru.
2. Siddappa @ Siddartha S/o
Jakkappa, Aged about 30 years, C/o
Ananda Reddy Building, Bhavani
Road, Hebbagodi, Bengaluru.
2 Spl.C.C.No.49/2013
3. Amaresha S/o Lakshmaiah, Aged
about 51 years, Work Inspector,
BBMP, Bengaluru, Nalluru Village,
Whitefield Post, Bengaluru.
(By Sri C.G. Sundar, Advocate)
JUDGMENT
1. Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru has submitted charge sheet against the accused Nos.1 to 3 for the offences punishable under section 7, 8, 12, 13(1) (d) read with section 13(2) of the Prevention of Corruption Act, 1988 alleging that the accused Nos.1 and 3 being public servants working as Assistant Engineer and Work Inspector respectively in BBMP, Pulakeshinagar, Bengaluru. Accused No.2 is private person. CW.1 D. Sandil Babu was the maintenance Manager of Shubhkamana apartments, No.41, Davis Road, Richards Town, Bengaluru. The said apartment had got water supply since 20 years. For the last three years, water was not properly supplied to the apartment. In this connection, he 3 Spl.C.C.No.49/2013 approached BWSSB who suggested to check the water pipeline. That on 3.3.2012 in order to cutting the road to check the water pipeline, he approached the first accused who was working as Engineer, for which he demanded Rs.15,000/- (unofficial amount) and on request, scaled down the amount to Rs.10,000/-. On the same day he filed an affidavit along with proper application. That on 14.3.2012 he went to the office of the accused, but he was not in the office. He learnt that the first accused will demand bribe for road cutting for checking water pipeline. Thereafter he approached Lokayuktha police who gave a voice recorder to record the conversation of demand of bribe amount with the accused. That on 15.3.2012 at about 10.30 a.m. he went to the office of the accused, but he was not there, but made a phone call and recorded the demand of Rs.8,000/- towards bribe, Rs.2,000/- towards demand draft for road cutting. After recording 4 Spl.C.C.No.49/2013 the said conversation, he went to Lokayuktha police station and lodged report on 16.3.2012.
2. Pursuant to his report, CW.14 Police Inspector, the Investigating Officer registered the case in Cr.No.22/12 against the accused for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. A trap was arranged and secured CWs.2 and 3 Lokesh and Nagaraju as government officials to act as shadow witness and trap witness. CW.1 produced 20 currency notes of the denomination of Rs.500/- each, totally Rs.10,000/- before CWs.2, 3 and 14. Numbers of the said currency notes have been noted on a sheet of paper and phenolphthalein powder was smeared on the currency notes and the tainted currency notes were kept in the shirt pocket of CW.1 through CW.3 Nagaraj. After giving suitable instructions to the official witnesses and the complainant and after observing the formalities 5 Spl.C.C.No.49/2013 drawn pre trap mahazar in the Lokayuktha police station.
3. CW.14, CWs.2 and 3 official witnesses, CW.1 the complainant and the raiding staff of CW.14 went to the office of the accused and their vehicle has been stopped at a little distance of BBMP office, Pulakeshinagar, Bengaluru. CW.1 the complainant and CW.2 shadow witness went inside the office of the first accused where two persons were sitting and the first accused instructed to pay the amount to a person who was sitting there, who is accused No.2 who received the amount and kept it in his shirt pocket. Immediately, he gave pre-arranged signal to the raiding staff. CW.14 and CW.3 and raiding staff came to the spot. CW.1 told him that the accused No.2 received Rs.10,000/- from him on the instructions of the first accused. Immediately, sodium carbonate solution was prepared and both hands of the second 6 Spl.C.C.No.49/2013 accused were immersed in the solution which turned pink colour and the same has been seized in separate bottles. On the instructions of CW.14, CW.3 witness Nagaraju has taken the tainted currency notes from the shirt pocket of the second accused and after confirming the numbers of the currency notes with the currency numbers noted in the Lokayuktha police station, the Investigating Officer seized the said currency notes it in a cover. Thereafter, documents relating to the complainant has been seized in the office of the accused and accused Nos.1 and 2 were apprehended and produced before the home office of the Presiding Officer on 16.3.2012 and they were released on bail on 19.3.2010. After recording the statements of the witnesses and after receipt of FSL report and obtaining sanction to prosecute the accused laid the charge sheet before the Court against accused Nos.1 to 3 for the alleged offences.
7 Spl.C.C.No.49/2013
4. The accused Nos.1 to 3 were secured and supplied copies of the charge sheet as contemplated under section 207 Cr.P.C. and thereafter case was posted to hear before charge. On 10.12.2015 after hearing both sides, my learned predecessor has framed charge against the accused No.1 for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and charge against accused No.2 was framed for the offence punishable under section 8 of the Prevention of Corruption Act and the accused No.3 was charged for the offence punishable under section 12 of the Prevention of Corruption Act, it was read over and explained to the accused Nos.1 to 3 who pleaded not guilty and claimed to be tried.
5. 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.24 and MOs.1 to 12 and 8 Spl.C.C.No.49/2013 12(a). After closure of the prosecution side, the accused Nos.1 to 3 were examined under section 313 Cr.P.C. wherein they have denied the incriminating circumstances appeared against them as false and they have not chosen to adduce evidence in support of their defence.
6. The learned counsel for accused Nos.1 to 3 addressed their arguments besides submitted written arguments. The learned Public Prosecutor addressed his arguments. Having heard the arguments and evidence on record coupled with documents, the following points arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 being public servant holding the post of Assistant Engineer, BBMP, Pulakeshinagar, Ward No.78, Bengaluru and on 3.3.2012 demanded illegal gratification of Rs.15,000/- from CW.1 9 Spl.C.C.No.49/2013 Senthil Babu for cutting the road to check water pipeline of Shubkamna Apartment, Richards Town, Bengaluru and on the request of CW.1, scaled down the bribe amount to Rs.10,000/-, out of which Rs.2,000/- towards fees and Rs. 8,000/- as bribe amount and on 16.3.2012 in between 2.30 and 2.40 p.m. in the office of the first accused, first accused demanded illegal gratification of Rs.10,000/- and on his instructions, CW.1 gave the bribe amount to accused No.2 Siddappa, private person and thereby the accused No.1 has committed the offence punishable under section 7 of the Prevention of Corruption Act, 1988 ?
2. Whether the prosecution proves beyond all reasonable doubt that on the said date, time and place the accused No.1 being public servant abused his position, obtained pecuniary advantage to the extent of Rs.10,000/- from CW.1 Senthil Babu through accused No.2 Siddappa as 10 Spl.C.C.No.49/2013 a motive or reward by corrupt or illegal means without public interest for road cutting to check the water pipe line of Shubkamna Apartment, Bengaluru and committed criminal misconduct and thereby committed the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ?
3. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 being private person and on 16.3.2012 in the chamber of the first accused obtained illegal gratification of Rs.10,000/- on behalf of the first accused from CW.1 Senthil Babu as a motive or reward by corrupt or illegal means to influence the accused No.1 for helping the complainant in cutting the road for checking the water pipeline of Shubhkamna Apartment, Bengaluru and thereby committed the offence punishable under section 8 of the Prevention of Corruption Act, 1988 ?11 Spl.C.C.No.49/2013
4. Whether the prosecution proves beyond all reasonable doubt that on the said date, time and place the accused No.3 being public servant working as Work Inspector, office of BBMP, Nelluru Village, Whitefield Post, Bengaluru on 16.3.2012 in the chamber of the first accused, abetted the accused No.1 to take illegal gratification of Rs.10,000/-
from CW.1 Senthil Babu as a motive or reward, for inducing by corrupt or illegal means in helping the complainant for cutting the road to check water pipeline of the Shubhkamna Apartment, Richards Town, Bengaluru and thereby committed the offence punishable under section 12 of the Prevention of Corruption Act, 1988 ?
5. What order ?
7. My findings on the above points are:
Point No.1: In the negative.12 Spl.C.C.No.49/2013
Point No.2: In the negative.
Point No.3: In the negative.
Point No.4: In the negative.
Point No.5: As per final order, for the following:
REASONS
8. Point Nos.1 to 4: Undisputed fact is that the accused Nos.1 and 3 being public servants holding the post of Assistant Engineer in BBMP, Pulakeshi Nagar Ward No.78, and Nellur village, Whitefield, Bengaluru respectively. Second accused being private individual. It is not in dispute that CW.1 D. Senthil Babu was the maintenance Manager of Shubkamna apartment situated at No.41, Davis Road, Richards Town, Bengaluru. Ex.P.22 is the letter given by Shubhkamna Apartment Owners Association, Bengaluru dated 30.5.2012 stating that one Mr. Dominic S. has been working with them as a part time Building Manager and he was asked to carryout BWSSB repairs. Ex.P.19 is the copy of the service particulars of the first 13 Spl.C.C.No.49/2013 accused is not in dispute. According to the prosecution, accused No.1 has demanded illegal gratification of Rs.15,000/- and later scaled down to Rs.10,000/- out of which Rs.8,000/- towards bribe and remaining Rs.2,000/- towards fee for road cutting to check the water pipeline of Shubkamana apartment. Defence of the accused is total denial of the prosecution case in toto. Before going to decide the merits of the case, let me discuss the validity of the sanction order obtained by CW.14/PW.5 Investigating Officer to prosecute the accused.
9. Exs.P.8 and 9 are the sanction orders obtained by PW.5 the Investigating Officer to prosecute the accused Nos.1 and 3. PW.3 speaks about the issuance of sanction order to prosecute the first accused and PW.4 speaks about the issuance of sanction order to prosecute the accused No.3. On reading the testimony of PW.3 who was the Chief 14 Spl.C.C.No.49/2013 Engineer, BBMP stated that he has received the requisition from ADGP, Karnataka Lokayuktha, City Division, Bengaluru along with prosecution papers such as copy of the complaint, FIR, pre-trap and post trap mahazars, FSL report, sketch, statement of the witnesses, explanation of the accused and records relating to the complainant. On the basis of the said documents, he prima-facie found that the accused No.1 has involved in the bribery case. Accordingly, he being disciplinary authority for removal of the accused No.1, accorded sanction at Ex.P.8. In the cross-examination, he admits that the first accused was appointed by the Government and published in the gazette notification dated 18.10.2010. He admits that as per the notification issued by the State Government on 11.1.2010, Chief Engineer has got power to appoint B-Group employees only. After appointing the first accused issued the said notification by the Government. He 15 Spl.C.C.No.49/2013 admits that he has not brought to the knowledge of the Lokayuktha police with regard to the appointment of the first accused by the state Government. He denied that he is not the competent officer to accord sanction to prosecute the accused No.1.
10. As per the oral evidence of PW.3, first accused was appointed by the State Government. The learned counsel for the accused submits that PW.3 is not the competent authority to accord sanction. Therefore, the sanction order issued by PW.3 is invalid and he is an incompetent person. The learned Public Prosecutor submits that the accused is working as Junior Engineer under PW.3, Chief Engineer who is the removal authority of the services of first accused. Therefore, PW.3 is the competent person to accord sanction. On reading of the Conduct Rules 1966, particularly in page 61 discloses that the Government is the appointing 16 Spl.C.C.No.49/2013 authority in respect of Group-A and B officers. Heads of Departments are empowered to impose minor penalties on the government servants belonging to Group-A and B officers. In such case, the government servants belonging to Group-A and B may appeal to the Government against the order of the minor penalties imposed by the disciplinary authority subordinate to Government. In the present case, the first accused was the Junior Engineer appointed by the State Government and appointment order has been published in the gazette notification. PW.3 has got power to appoint only B-Group employees. He is not the appointing authority of accused No.1. The Government is the appointing and removal authority of accused No.1 officers.
11. On reading of another decision of the Hon'ble High Court in Crl. Appeal No.2573/2013 in Chandrashekara Reddy V/s State of Karnataka, 17 Spl.C.C.No.49/2013 order dated 16.9.2014 wherein heir Lordships have held that charge sheet was submitted against the accused for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act which is registered in C.C.No.10/2007. The said case was ended in conviction against which the accused appellant preferred Criminal Appeal before the Hon'ble High Court of Karnataka challenging the validity of the sanction order obtained by the prosecution. The accused/appellant coming under Group-A officer and he was appointed by the authority. The sanction order issued by Desk Officer of the Government to prosecute the accused. The Hon'ble High Court has held that the sanction order passed by the Desk Officer is invalid and set aside the sanction order and liberty is reserved to the prosecution to take action in accordance with law.
18 Spl.C.C.No.49/2013
12. In view of the principles enunciated in the said decision and the admission of PW.3 the Government is the competent authority to accord sanction to prosecute the accused No.1. PW.3 has no power to accord sanction to prosecute the accused No.1. Hence, I hold that Ex.P.8 sanction order issued by PW.3 to prosecute the accused No.1 is invalid and an incompetent authority has issued the said sanction order.
13. PW.4 Siddaiah, then Commissioner of BBMP, Bengaluru has deposed that after verifying the prosecution papers relating to the case sent by the Additional Director General of Police, Karnataka Lokayuktha, Bengaluru prima-facie found that the accused No.3 is involved in the corruption case. Therefore, he has accorded Ex.P.9 sanction order to prosecute the accused No.3. In the cross-examination the accused persons have not disputed the 19 Spl.C.C.No.49/2013 competency of the sanctioning authority to issue sanction order and application of mind by PW.4 while issuing sanction order. PW.4 was the Commissioner of BBMP, who after verifying the prosecution papers sent by the ADGP, Karnataka Lokayuktha, Bengaluru prima- facie found involvement of accused No.3 in the corruption case and he has applied his mind while issuing sanction order to prosecute the accused No.3. Hence, I hold that Ex.P.9 sanction order is valid and is in accordance with law.
14. Now coming to the point of demand and acceptance of illegal gratification by the accused No.1. It is needless to say that demand and acceptance of amount as illegal gratification is sine qua non for constituting the offence under the Act. It is also well settled in law that there is a statutory presumption under section 20 of the Act which can be dislodged by the accused No.1 by bringing on record some evidence 20 Spl.C.C.No.49/2013 either direct or circumstantial that money was accepted other than the motive or reward as stipulated under section 7 of the Act. It is obligatory on the part of the Court to consider the explanation offered by the accused No.1 under section 20 of the Prevention of Corruption Act and the consideration of the explanation has to be on the anvil of preponderance of probabilities.
15. Mere recovery of tainted currency notes cannot fasten the guilt of the accused unless and until proved that the accused has demanded and voluntarily accepted illegal gratification through CW.1 Senthil Babu to do official favour. In the decision reported in 2015 AIR SC page 951 in C. Sukumar V/s State of Kerala wherein their Lordships have held that:
"Demand of illegal gratification by the accused is sine qua non for constituting the offence under the Act. Burden of proof accusation against the accused offence 21 Spl.C.C.No.49/2013 with regard to acceptance of illegal gratification from complainant lies on prosecution."
16. The prosecution to prove the demand and acceptance has relied upon the oral testimony of PWs.1 and 2 who are the official witnesses. Despite of giving several notices and warrants the Investigating Officer has not secured CW.1 complainant. Execution of the warrant in future was not bright. Hence, the evidence of CW.1 was taken as 'nil'.
17. PWs.1 and 2 have deposed that they were summoned by the Lokayuktha Police to act as shadow witness and mahazar witness. They have deposed that CW.1 produced 20 currency notes of denomination of Rs.500/- each, totally Rs.10,000/-. Numbers of the said currency notes have been noted in a sheet of paper as per Ex.P.1.
22 Spl.C.C.No.49/2013Phenolphthalein powder was smeared to the currency notes and gave it to PW.1 Nagaraj who kept the same in the shirt pocket of CW.1. Thereafter, both hands of PW.1 were immersed in the sodium carbonate solution and it was stored in separate bottles. PW.5 has given instructions to CW.1 complainant and PW.1 Lokesh stated to be shadow witness. After observing the formalities drawn pre trap mahazar as per Ex.P.2 in the Lokayuktha police station on 16.3.2012. PW.5 Investigating Officer has also deposed the said facts in hi oral evidence. Accused Nos.1 to 3 have not disputed the pre-trap mahazar drawn by PW.5 in the presence of the witnesses PWs.1 and 2 in the Lokayuktha police station. Hence, I hold that the prosecution proves Ex.P.2 pre-trap mahazar drawn by PW.5.
18. According to the prosecution, CW.1 Senthil Babu who is the maintenance Manager of 23 Spl.C.C.No.49/2013 Shubkamana Apartments approached the first accused for enquiry with regard to road cutting to check water pipeline of his apartment, for which the accused No.1 has demanded illegal gratification of Rs.15,000/- and later scaled down to Rs.10,000/- on the request of CW.1. Out of the said amount of Rs.10,000/-, Rs.8,000/- towards bribe amount and remaining Rs.2,000/- is fee for road cutting. He went to Lokayuktha police station who gave the voice recorder to record the conversation of bribe of the first accused. He made a phone call to the first accused and recorded the demand of bribe of Rs.10,000/- and approached the Lokayuktha police station and lodged report at Ex.P.10 before PW.5 the Investigating Officer on 16.3.2013. Pursuant to his report Ex.P.10, PW.5 registered the case and arranged a trap by securing PW.1 Lokesh, PW.2 Nagaraj, government official witnesses to act as shadow and trap witnesses. After drawing pre trap 24 Spl.C.C.No.49/2013 mahazar, CW.1, PWs.1 and 2, PW.5 and his raiding staff went to the office of the first accused. They have parked their vehicle at a little distance from the office of the accused No.1. CW.1 and PW.1 went to the office of the accused No.1 and PW.1 was standing in the office door of the accused No.1 and CW.1 entered inside the chamber and approached accused. PW.1 saw the amount received by accused No.2 from CW.1 on the instructions of accused No.1. PW.1 has turned hostile to the prosecution case. He has not stated that the accused has demanded bribe from the complainant CW.1. In the course of the cross- examination made by the prosecution, he denied that he has seen CW.1 talking with the first accused who demanded bribe from him and received the same. He denied that the second accused on the instructions of first accused received the tainted currency notes and kept it in his shirt pocket. He 25 Spl.C.C.No.49/2013 admits that PW.5 drawn the trap mahazar as per Ex.P.3. In the course of cross-examination by the learned counsel for the accused, he admits in para 13 when he was standing nearby the office of the accused No.10, within 10 minutes police went inside the chamber of the accused. Conversation of transcription was reduced into writing in the Lokayuktha police station. The said evidence of PW.1 does not prove the demand and acceptance of bribe by the first accused, but he stated that second accused received the tainted currency notes from the complainant and kept it in his shirt pocket. He has not stated that the second accused neither demanded bribe amount from CW.1 nor on the instructions of first accused, second accused received the tainted currency notes. Therefore, the evidence of PW.1 is not helpful to the prosecution to prove the demand and acceptance of bribe by the first accused nor the second accused. 26 Spl.C.C.No.49/2013
19. PW.2 who is the trap witness has stated about the tainted currency notes recovered from the second accused and his both hands were immersed in the sodium carbonate solution which turned into colour. He is not an eye witness with regard to the demand of bribe from CW.1. He speaks about recovery of tainted currency notes from the possession of the second accused. Therefore, to prove the demand of illegal gratification by the first accused nor the second accused, the evidence of PW.2 is not helpful to the prosecution to prove demand of illegal gratification by the first accused and receipt of the bribe amount by the accused No.2 from CW.1 to do official favour.
20. PW.5 the Investigating Officer has deposed about the conduct of investigation after registering the case pursuant to the report Ex.P.10 of CW.1. He 27 Spl.C.C.No.49/2013 deposed about the drawing of pre-trap mahazar Ex.P.2 at the Lokayuktha police station and seizure of currency notes from the possession of the accused No.2 and his both hands were immersed in the solution which turned pink colour and drawn Ex.P.3 trap mahazar and accused Nos.1 and 2 were apprehended and produced before the Court. Shirt of the accused No.2 was also seized by the Investigating Officer. First accused has produced copy of the record relating to the complainant CW.1. On being enquired, accused Nos.1 and 2 gave their explanation as per Ex.P.5 and P.6. PW.5 is also not an eye witness about the demand and acceptance of bribe by accused No.1 through second accused. After seeing the signal, he and his raiding staff and PW.3 went inside the chamber and learnt that the second accused received tainted currency notes. Immediately, his both hands were immersed in the solution and seized the currency 28 Spl.C.C.No.49/2013 notes and seized shirt of the second accused. The evidence of PWs.1,2 and 5 does not prove the demand and acceptance of bribe amount by the accused persons. It is true that the tainted currency notes were recovered from the possession of the second accused. Neither PW.1 nor PW.2 have deposed about demand of bribe amount by first accused to do official favour to CW.1.
21. To prove the demand and acceptance of bribe, the prosecution has relied upon the secondary evidence such as MOs.4, 5 CD and video recorder. MO.10 and 11 CD with regard to the conversation recorded from spy camera and trap video recording of CD and the conversation of transcriptions of the first accused and CW.1 at Ex.P.4. Ex.P.13 is the spy camera conversation recording and Ex.P.18 is the FSL report. The Investigating Officer PW.5 has not produced the certification to rely upon the said secondary electronic 29 Spl.C.C.No.49/2013 evidence as per section 65-B of the Evidence Act. On reading of decision reported in AIR 2015 Supreme Court page 180 in Anvar P.V. V/s P.K. Basheer and others wherein their Lordships have held as under:
"Proof of electronic record is a special provision introduced under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law on secondary evidence under Sections 63 and 65 has to yield. An electronic record by way of secondary evidence therefore shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of 30 Spl.C.C.No.49/2013 Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
22. In view of the said decision and the provisions enunciated under section 65-B of the Evidence Act, without certification, electronic record as secondary evidence cannot be looked into. Thus, the oral evidence of PWs.1, 2 and 5 does not prove the demand and acceptance of bribe by the accused persons. In the absence of non-proving demand of illegal gratification presumption under section 20 of the Act does not arise.
23. In the decision reported in 2014 SAR Criminal page 554 SC in B. Jayaraj V/s State of A.P. wherein their Lordships have held:
"Legal presumption of taking gratification permissibility - such presumption can only 31 Spl.C.C.No.49/2013 be in respect of offence under section 7 of the Act and not the offence under section 13(1)(d) and 13(2) of PC Act. In any event it is only a proof of acceptance of illegal gratification that presumption can be drawn under section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can fall only if there is a proof of demand."
24. As I have already stated supra, the oral testimony of prosecution witnesses does not prove the demand and voluntary acceptance of illegal gratification by the accused No.2 on behalf of accused No.1 through CW.1 and there is no iota of evidence placed before the Court that the accused No.3 has abetted the first accused to receive illegal gratification from CW.1. To prove the demand and acceptance of bribe, presence of complainant is necessary in view of the decision reported in 2011 (2) Crimes 289 (SC) in 32 Spl.C.C.No.49/2013 State of Kerala and Another V/s C.P. Rao relied on by the learned counsel for the accused. Thus, the prosecution has failed to prove the demand and acceptance of bribe by the accused Nos.1 to 3 from CW.1 and accused No.3 abetted the first accused to receive illegal gratification to do official favour.
25. On reading of the explanation at Exs.P.5 and P.6 of the accused Nos.1 and 2 and Ex.P.21 explanation of the accused No.3 reveals that the complainant approached the accused and enquired about the fee for road cutting to check the water pipeline for which he told him to bring demand draft for Rs.10,000/-. CW.1 told the first accused to take the demand draft for Rs.10,000/- as he has no time to get the demand draft and immediately police came and enquired about the amount of Rs.10,000/-. Second accused Siddappa has stated that one person came and gave Rs.10,000/- , he learnt that the said amount was given to bring 33 Spl.C.C.No.49/2013 demand draft from the bank. Accused No.3 has denied the demand of illegal gratification of Rs.10,000/- by the first accused. He was not present at the time of raid on 16.3.2012 in the office of BBMP, Ward No.78. He does not know the transaction between CW.1 and the first accused. CW.1 residing in ward No.60, it does not come within the work jurisdiction of BBMP. PW.5 in the course of his cross- examination has pleaded his ignorance of the owner or plumber has to give an application for road cutting. On 9.3.2012 CW.1 gave an application through his contractor to the office of the Assistant Executive Engineer, K.G. Halli Sub-Division. There are two sub- divisions in Pulakeshinagar sub-division. The application given by CW.1 through plumber comes within the jurisdiction of K.G. Halli sub-Division Ward No.60. Office of the first accused is situated in Ward No.78. He admits that he has no document to show that first accused was in-charge of ward No.60. The 34 Spl.C.C.No.49/2013 said evidence proves that the first accused is working as Engineer in Ward No.78 and the accused No.3 was working as Work Inspector in Ward No.60. As per Ex.P.10, CW.1 directly approached the first accused to enquire about the road cutting to check the water pipeline of Shubkamana apartment. But he has not stated that he gave application to the office of the accused for road cutting. He enquired about the fee for road cutting with the first accused as per the version of PW.5 and Ex.P.10. PW.5 clearly admitted that the application was given by CW.1 through his plumber/contractor to the office of BBMP wherein neither the first accused nor the accused No.3 were working in the ward No.78. There is no clear evidence adduced by the prosecution to prove that work of CW.1 was pending with the accused No.1 or the second accused with regard to the work of Shubhkamna apartment of CW.1. Viewed from any angle, the prosecution has failed to bring home the 35 Spl.C.C.No.49/2013 guilt against the accused Nos.1 to 3 by placing cogent and corroborative evidence with regard to demand and voluntary acceptance of illegal gratification by the accused Nos.1 and 2 and accused No.3 abeted the first accused to take bribe from the complainant CW.1. In the absence of consistent corroborative evidence against the accused Nos.1 to 3 as stated supra, accused Nos.1 to 3 are entitled for benefit of doubt. Accordingly I answer the point Nos.1 to 4 in the negative.
26. Point No 5: In the result, I proceed to pass the following:
ORDER Acting under section 248(1) Cr.P.C, accused Nos.1 to 3 are acquitted of the offences punishable under Section 7, 8, 12, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. They 36 Spl.C.C.No.49/2013 are set at liberty. Their bail bonds stand cancelled.
MO.12 cash of Rs.10,000/- (Rs.500/- X 20) shall be confiscated to the state, MOs. 1, 4, 5, 10, 11 be returned to Karnataka Lokayuktha and MOs. 2, 3, 4(a), 5(a), 6, 7, 7(a), 8, 9, 9(a), 10(a), 11(a) and 12(a) be destroyed, after the appeal period is over.
(Dictated to the Judgment Writer, transcripted and computerized by him, corrected, signed and then pronounced by me in open Court on this the 10th day of July, 2017) Sd/-
[GOPAL] 10/7 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: Lokesh
PW.2: B.K. Nagaraj
PW.3: A.N. Thyagaraja
PW.4: Siddaiah
PW.5: K. Ravishankar
37 Spl.C.C.No.49/2013
List of documents marked on behalf of prosecution:
Ex.P.1: Sheet containing details of currency notes Ex.P.1(a): Signature of PW.1 Ex.P.1(b): Signature of PW.2 Ex.P.1(c): Signature of PW.5 Ex.P.2: Pre trap mahazar Ex.P.2(a): Signature of PW.1 Ex.P.2(b): Signature of PW.2 Ex.P.2(c): Signature of PW.5 Ex.P.3: Trap mahazar Ex.P.3(a): Signature of PW.1 Ex.P.3(b): Signature of PW.2 Ex.P.3(c): Signature of PW.5 Ex.P.4: Voice recorded transcription (demand) Ex.P.4(a): Signature of PW.1 Ex.P.4(b): Signature of PW.5 Ex.P.5: Explanation of Accused No.1 Ex.P.5(a): Signature of PW.1 Ex.P.5(b): Signature of PW.5 Ex.P.6: Explanation of accused No.2 Ex.P.6(a): Signature of PW.1 Ex.P.6(b): Signature of PW.5 Ex.P.7: Portion of the statement of PW.1 Ex.P.8: Sanction order for prosecution of accused No.1 Ex.P.8(a): Signature of PW.3 Ex.P.9: Sanction order for prosecution of accused No.3 Ex.P.9(a): Signature of PW.4 38 Spl.C.C.No.49/2013 Ex.P.10: Complaint Ex.P.10(a): Signature of PW.5 Ex.P.11: Requisition letter Ex.P.12: Sketch Ex.P.13: Spy camera recording conversation Ex.P.14: Copies of documents Ex.P.15: Attendance register extract Ex.P.16: Report of Maradi Rangappa Ex.P.16(a): Signature of PW.5 Ex.P.17: Phone call details Ex.P.18: FSL report Ex.P.19: Service particulars of the accused No.1 Ex.P.20: Engineer's sketch Ex.P.21: Explanation of accused No.3 Ex.P.22: Letter of Srinivas Kashinatha Ex.P.23: Specimen seal letter Ex.P.24: Acknowledgement letter List of material objects marked on behalf of the prosecution:
MO 1: "U" metal seal
MO.2: Bottle containing sample solution
MO.3: Hand wash of PW.2
MO.4: CD - Demand recording/voice recorder
MO.4(a): Cover
39 Spl.C.C.No.49/2013
MO.5: CD - Pre trap video recordings
MO.5(a): Cover
MO.6: Sample solution bottle (trap)
MO.7: Bottle containing right hand wash of Accused-2
MO.7(a): Addl. Solution of right hand wash of accused-2 MO.8: Bottle containing left hand wash of accused-2 MO.9: Shirt MO.9(a): Cover MO.10: CD - spy camera recordings MO.10(a): Cover MO.11: CD - Trap video recordings MO.11(a): Cover MO.12: Cash of Rs.10,000/- (Rs.500/- X 20) MO.12(a): Cover List of witnesses examined on behalf of accused:
Nil List of documents marked on behalf of accused:
Nil Sd/-
[GOPAL] 10/7 XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.