Bangalore District Court
The State Of Karnataka vs Mr.K.M.Krishna on 11 January, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 11th JANUARY 2017.
Spl. C.C.No. 29/2012
*****
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.K.M.Krishna, Aged 42 years,
S/o Late Mallappa,
Assistant Engineer,
BBMP Ward No.54/163,
Srinivasa Nagara, Giri Nagara,
Near Water tank, Kathriguppe,
Bengaluru,
R/o No.20, 9th Main Road,
Shankara Nagara,
Mahalaxmi Layout, Bengaluru
(Rep by Sri C.G.Sundar, Advocate)
*****
2 Spl. C.C. No.29/2012
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 23-06-2011.
of offence:
3. Date of First Information 23-06-2011.
Report:
4. Date of Arrest: 23-06-2011.
5. Date of Commencement 28-01-2014.
Of recording of evidence:
6. Date of Closing of evidence: 17-10-2016.
7. Date of Pronouncement of 11-01-2017.
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 allegation that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as Assistant Engineer in the BBMP Ward No.54/163, Srinivasa Nagara, Girinagara, Kathriguppe, Bengaluru. One K.C.Veeranna Shetty has lodged a complaint before the Lokayuktha Police alleging that accused has demanded the bribe amount of Rs.1,00,000/- from him by 3 Spl. C.C. No.29/2012 threatening to demolish the construction made by him on the ground of deviation from the approved plan. It was also alleged in the complaint that the accused has already received the bribe amount of Rs.50,000/- and demanded further bribe amount of Rs.50,000/- from the complainant. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.23/2011. The Investigating Officer has secured witnesses, conducted pre trap proceedings in their presence and drawn pre trap mahazar. On 23-06-2011, at 4.20 p.m. near Sindhur Silk Shop, nearby the office of accused at Kathriguppe, Bengaluru, accused was trapped while receiving the balance bribe amount of Rs.30,000/- from the complainant. The Investigating Officer has conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before the court. The Investigating Officer has continued further investigation, recorded the statement of witnesses, secured the documents relating to the demand of bribe amount and also chemical analysis report and submitted final report before the sanctioning authority. After obtaining the sanction, Lokayuktha Police filed the charge sheet before this court by alleging that the accused has committed the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.4 Spl. C.C. No.29/2012
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 the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 8 witnesses as PW.1 to 8 and got marked Ex.P-1 to P-33 documents and MO.1 to 13 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not chosen to let in any defence evidence on his behalf. However during the course of cross-examination of prosecution witnesses, accused got marked one document as Ex.D.1
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are: 5 Spl. C.C. No.29/2012
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 Assistant Engineer at BBMP Ward No.54/163, Girinagara, Bengaluru demanded the bribe amount of Rs.1,00,000/- from the complainant by threatening to demolish the house constructed by the complainant on the ground of deviation from the approved plan and accepted the illegal gratification of Rs.50,000/- from the complainant on 02-06-2011 and 23-06-2011, at about 4-
20 PM, near Sindhoor Silk , 1st Main Road, Kathriguppe, accused demanded and accepted RS.30,000/- from the complainant, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Assistant Engineer at BBMP Ward No.54/163, Girinagara, Bengaluru on 02- 06-2011 and 23-06-2012 abused his official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.80,000/- 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.29/2012
8. My answer for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE NEGATIVE.
POINT No.3: IN THE NEGATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant, working as an Executive Engineer in BBMP and the allegations against him is about he committing the offences under Sec. 7, 13(1)
(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority is the statutory and mandatory requirement to prosecute the accused. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let in by the prosecution before this court.
10. CW.20-S.S.Virakthamata, who was examined before this court as PW.1, deposed during his evidence that, while he was working as the under Secretary to the PWD Department, they received a proposal from the ADGP, Karnataka Lokayuktha, Bengaluru along with 7 Spl. C.C. No.29/2012 the prosecution papers, seeking sanction to prosecute the accused.
PW.1 further deposed that, on 20-11-2011, he wrote a letter seeking clarification and also sought documents and accordingly on 28-11- 2011 Lokayuktha Police have produced the FIR, entrustment mahazar, trap mahazar and other papers. PW.1 further deposed that, after perusing the letters and papers, they put the notes and sent it to the PWD Minster and on 22-12-2011, PWD Minister has granted approval after going through the file and accordingly, he has issued the sanction order as per Ex.P.1 to prosecute the accused. PW.1 further deposed that, Government is the competent authority in the matter of removing the officials in the cadre of accused and he has power to authenticate the orders of the government, under Transaction of Business Rules.
11. CW.1-K.C.Veeranna Shetty, who was examined before this court as PW.2, deposed during his evidence that, during the year 2008-2009 he constructed a house at Kathriguppe and his neighbor has raised some dispute and at that time accused was working as Assistant Engineer at Kathriguppe, Bengaluru. PW.2 further deposed that, Assistant Executive Engineer by name Kenchappa has issued the order stating that there was deviation from the approved plan while 8 Spl. C.C. No.29/2012 constructing the building and thereafter he approached the Lokayuktha Police. PW.2 further deposed that, he lodged a complaint as per Ex.P.1 and thereafter Lokayuktha Police have secured the witnesses and conducted pre trap proceedings in their presence and drawn the pre trap mahazar. PW.2 further deposed that, they went to the office of accused and he gave the tainted currency notes to the accused out side his office and conveyed the message to Lokayuktha Police by removing his spectacles. PW.2 further deposed that, thereafter he was taken to Mayo Hall Court by Lokayuktha Police and his statement was recorded by the Magistrate. PW.2 further deposed that, Ex.P.11 is the statement given by him and contents of Ex.P.11 are correct, but he has not given money.
12. CW.3-H.N. Shivalingaiah, who was examined before this court as PW.3, deposed during the course of his evidence that, he and CW.4 were working in Karnataka Industrial Area Development Board and on the instruction of their Assistant Secretary, they appeared before CW.21 on 23-06-2011. PW.3 further deposed that, they were told that they were secured as witnesses and CW.1 was present and pre trap proceedings were conducted in their presence and pre trap mahazar was drawn. PW.3 further deposed that, thereafter they gone 9 Spl. C.C. No.29/2012 near the office of accused at Kathriguppe, and CW.1, 2 and 4 went inside the office and they stood outside. PW.3 further deposed that, thereafter accused was found out side the office and cash of Rs.30,000/- was taken from the left side pant pocket of the accused and hand wash of the accused was conducted. PW.3 further deposed that, thereafter accused was brought to his office and he was taken to the office of CW.21 and trap mahazar was drawn as per Ex.P.4.
13. CW.4-K.P.Mahalingaiah, who was examined before this court as PW.4, deposed during the course of his evidence that, he was working as S.D.A. in Karnataka Industrial Area Development Board and PW.3 was his colleague and they appeared before CW.21 on 23- 06-2011. PW.4 further deposed that, CW.1 was present in the office and pre trap proceedings were conducted by the Lokayuktha Police and pre trap mahazar was drawn in their presence. PW.4 further deposed that, thereafter they gone near the office of accused at Girinagara and he and CW.1 went inside the office and other members stood out side the office. PW.4 further deposed that, accused took CW.1 in his chamber and thereafter came out and questioned about his identity and he told the accused that he has come in connection with the work in the revenue office. PW.4 further deposed that, 10 Spl. C.C. No.29/2012 accused left his office and CW.1 contacted over phone and asked him come out of that place and remain nearby tea stall. PW.4 further deposed that, about 15-minutes later, CW.21 summoned him and he noticed the accused, CW.1, 3 and 4 nearby the road and he was told by CW.1 to take out the currency notes and accordingly he took the currency notes from the left side pant pocket of the accused. PW.4 further deposed that, thereafter finger wash of the accused was conducted and the hand wash was seized in a bottle and trap mahazar was drawn as per Ex.P.4. PW.4 further deposed that, metal seal used for seizing material objects are handed over to him and he produced the same before this court.
14. CW.5-T.D.Chandrashekar, who was examined before this court as PW.5, deposed during his evidence that, he was working as police constable in Karnataka Lokayuktha and on 23-06-2011 he participated in the pre trap proceedings by applying phenolphthalein powder on the currency notes. PW.5 further deposed that, he was a member of the trap team, gone near the office of accused and at about 6-00 p.m. PW.2 and accused reached near the shop by name Sindhura Silk and he noticed PW.2 giving Rs.30,000/- to the accused. PW.5 further deposed that, thereafter accused was apprehended and 11 Spl. C.C. No.29/2012 currency notes were seized from the accused and finger wash of the accused was conducted and solution was seized in the bottle and trap mahazar was drawn as per Ex.P.4.
15. CW.21-S.T.Yogesh, who was examined before this court as PW.6, deposed during his evidence that, on 18-06-2011 at about 1-00 p.m. CW.1 appeared before him and alleged about the demand of bribe amount by this accused and accordingly he gave the digital voice recorder to CW.1 and asked him to record the conversation between him and the accused. PW.6 further deposed that, on 23-06-2011 CW.1 appeared before him and lodged a written complaint as per Ex.P.3, on the basis of which, he has registered the FIR as per Ex.P.15. PW.6 further deposed that, by issuing the requisition letter as per Ex.P.19, he secured CW.3 and 4 to his office and conducted pre trap proceedings in their presence and drawn pre trap mahazar. PW.6 further deposed that, he instructed CW.1 to hand over the tainted currency notes to the accused, when demanded by him and there after to give the signal to them. PW.6 further deposed that, he gave the instruction CW.4 to become a shadow witness and accompanied CW.1 and observe the proceedings between them. PW.6 further deposed that, thereafter they moved towards the office of accused at 12 Spl. C.C. No.29/2012 Girinagara and waited till 3.10 p.m. and accused was not present in the office and when they contacted accused, he told that he will reach his office within half an hour. PW.6 further deposed that, at about 3.45 p.m. CW.1, 2 and 4 entered the office of accused and accused took the complainant inside his office and thereafter accused came out of his office and watched the surroundings. PW.6 further deposed that, thereafter accused and CW.1 came out of the office and went in a cross road outside the office. PW.6 further deposed that, thereafter he received the signal and immediately they gone to the spot, surrounded the accused and CW.1 has identified the accused. PW.6 further deposed that, hand wash of the accused was conducted at the spot and sodium carbonate solution was seized in the bottle. PW.6 further deposed that, when he enquired the accused about the tainted currency notes, accused has not given any reply and thereafter, tainted currency notes were taken from left side pant pocket of the accused and same was seized. PW.6 further deposed that, he prepared the rough sketch of the spot as per Ex.P.21 and took the accused inside the office, seized the documents as per Ex.P.22 and Ex.P.23. PW.6 further deposed that, CW.1 has produced the voice recorder and button camera given to him and recordings in those voice recorder and button camera were transmitted in writing as per Ex.P.12. PW.6 13 Spl. C.C. No.29/2012 further deposed that, CW.9 has identified the accused and his voice in those recordings and gave a report as per Ex.P.24. PW.6 further deposed that, he has handed over the seal to CW.4 by obtaining the acknowledgement as per Ex.P.26 and accused gave his explanation voluntarily as per Ex.P.27. PW.6 further deposed that, he has continued further investigation, recorded statement of witnesses and received chemical analysis report and call details of CW.1 and the accused. PW.6 further deposed that, he has sent a requisition to 17th ACMM Bengaluru, to record the 164 Cr.P.C. statement of CW.1 and also received the duty allocation details and other documents from CW.9. PW.6 further deposed that, thereafter he has prepared the final report and submitted to his higher officials to got sanction and handed over the file to CW.22 for further investigation.
16. CW.22-Sannathammappaiah Wadeyar, who was examined before this court as PW.7, deposed during his evidence that, on 20-09- 2012 he received the case file from CW.21 and received the sanction order on 13-02-2012 and filed the charge sheet before this court on 18-02-2012.
17. Smt. S.Nagashree, who was examined as PW.8 deposed during the course of her evidence that, as per the requisition of 14 Spl. C.C. No.29/2012 investigating officer, she recorded the statement of complainant, K.C.Veeranna Shetty as per Ex.P.11. PW.8 further deposed that complainant has given the said statement voluntarily before her.
18. The accused has not let in any defence evidence on his behalf. But, accused got marked the copy of the sanctioned plan as Ex.D.1, by confronting the same to complainant, who was examined as PW.2, during the course of his cross-examination.
19. There is no dispute that the accused is a public servant, working as an Executive Engineer 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.
20. In order to prove the sanction and validity of sanction, prosecution examined CW.20 Sri S.S.Virakthamut 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 placed the same 15 Spl. C.C. No.29/2012 before the PWD minister and after getting the approval from the Minister; they have issued the sanction order as per Ex.P.1.
21. The evidence of PW.1 was not at all challenged by the accused by cross examining him, in disputing the authority of PW.1 to issue sanction and application of his mind by him before issuing the 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.
22. There is no dispute regarding the authority of CW.20 to accord sanction to prosecute the accused, being the under secretary to the Public Works Department. More over, evidence of PW.1 also proves that by obtaining the approval from the PWD minister of Government of Karnataka, sanction was obtained and accorded. 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, 16 Spl. C.C. No.29/2012 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.
POINT No.2 & 3:
23. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as an executive engineer in BBMP, has demanded the bribe amount of Rs.1,00,000/- from the complainant by threatening to demolish his construction on the ground on deviation from the approved plan and accepted the bribe amount of Rs.50,000/- and 23-06-2011, accused was trapped while he was receiving the balance bribe amount of Rs.30,000/- from the complainant.
24. 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 17 Spl. C.C. No.29/2012 has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, accused can be held as guilty of committing the offences punishable under Sec.7, 13(1) (d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
25. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon 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 18 Spl. C.C. No.29/2012 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
26. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (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 19 Spl. C.C. No.29/2012 complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
27. It is the arguments for the accused before this court that in respect of the complainant, no official act was pending before the accused or any act to be done by the accused in favour of the complainant. Therefore, according to the accused, question of he doing favour for the complainant and demanding and accepting the bribe for the same would not arise. According to the accused, notice and provisional order for demolition of the illegally constructed building by the complainant was issued by the Assistant Executive Engineer and the accused has no role to pay in the same. Hence, question of complainant approaching the accused for doing any favour and question of accused demanding the bribe amount for doing any favour to the complainant, would not arise. The accused further contended that, much before filing of complaint and alleged trap, complainant has approached Karnataka Appellate Tribunal challenging the provisional order for demolition and there is an order by the Karnataka Appellate Tribunal staying the execution and operation of the provisional order for demolition. When there is a stay order by the Karnataka Appellate 20 Spl. C.C. No.29/2012 Tribunal, accused doing any favour to the complainant would not arise. It is on these two grounds, accused tried to impress upon this court that no official act or duty to be performed by the accused to favour the complainant on the date of filing the complaint or on the date of alleged trap. Hence, according to the accused, question of he demanding and accepting the bribe amount would not arise.
28. It is well established principle of law held through the catena of decisions of Hon'ble Supreme Court and High Court of Karnataka that there should be some official work pending before the accused in respect of the complainant in order to demand and acceptance of illegal gratification. If no official act or work is pending before the accused, question of he doing favour to the complainant and demanding the bribe amount for the same, would not arise. Therefore, it is incumbent on the part of the prosecution to establish before the court that, on the date of alleged demand and acceptance of the illegal gratification and as on the date of lodging the complaint and trap, accused has got some official act or duty to be performed in favour of the complainant.
29. If I draw my attention to the complaint allegations, it was alleged that complainant has constructed a house and adjacent owner 21 Spl. C.C. No.29/2012 has objected for the construction of that house on the ground of deviation from the approved plan, because of which, Assistant Engineer of BBMP has issued a Provisional Order for demolition of his construction. In response to that notice, complainant met the accused, who was working as Assistant Engineer in BBMP and the accused has threatened the complainant to demolish the building and demanded the bribe amount. It was also alleged in the complaint that the complainant has paid an amount of Rs. 50,000/- as bribe amount to the accused on 10-06-2011 and thereafter the complainant has approached the Lokayuktha Police, who have handed over a voice recorder to him to record the conversation between him and the accused. The complainant has recorded the conversation between him and the accused and thereafter lodged the written complaint as per Ex.P.3, before the Lokayuktha Police. So, complaint allegations are quite clear that the demand of bribe amount made by the accused is by threatening to demolish the illegal construction made by the complainant. Now, the question before this court is as to whether this accused can demolish the building constructed by the complainant on the ground of deviation from the approved plan. This court has also to consider as to whether this accused can do any favour to the 22 Spl. C.C. No.29/2012 complainant regarding the illegal construction and notice issued for demolition of illegal construction.
30. In-fact, complaint allegations shows that, after receiving the bribe amount of Rs.50,000/-, accused advised the complainant to approach the Karnataka Appellate Tribunal to get the stay order and accordingly he has approached the Karnataka Appellate Tribunal and got the stay order before lodging the complaint. So, one thing is very clear that, on the date of lodging the complaint, there is a stay order passed by the Karnataka Appellate Tribunal for the provisional order passed for demolition of the illegal construction made by the complainant.
31. The complainant, along with the complaint, has produced the notice cum provisional order passed by the Assistant Engineer to demolish the illegal construction and same is marked as per Ex.P.16. That notice was issued on 19-06-2009 by the Assistant Executive Engineer by name L. Kenchappa. The complainant, who was examined before this court as PW.2, specifically deposed in his examination in chief that, one Kenchappa, Assistant Executive Engineer, has issued an order by saying that there was some deviation from the sanctioned plan. So the notice and provisional order for demolition of the building 23 Spl. C.C. No.29/2012 has been issued by one L. Kenchappa, who is the Assistant Executive Engineer of BBMP and not by this accused. When this accused has not issued the provisional order, question of he doing favour to the complainant in this regard appears to be unbelievable and improbable. If any official, who can do favour to the complainant in this regard is the Assistant Executive Engineer by name L. Kenchappa and not this accused.
32. Even though the signature of the Assistant Engineer is also found in the notice, it was not signed by this accused. In-fact, during the year 2009, accused was not at all serving as an Assistant Engineer in ward No.54. The service records of the accused, which was secured by the investigating agency during the course of investigation, reveals that during the year 2009, this accused was not serving as an Assistant Engineer in ward No.54. It is subsequent to the issuance of the provisional order and subsequent to the year 2010, this accused was serving as Assistant Engineer in ward No.54. Even though this accused was working as an Assistant Engineer during the year 2011, when the complaint was made to Lokayuktha police and when the provisional notice was issued during the year 2009, this accused was even not working as Assistant Engineer in the said ward. The notice for 24 Spl. C.C. No.29/2012 demolition and provisional order for demolition was issued by the Assistant Executive Engineer by name L. Kenchappa and not by this accused. Under such circumstances, accused doing any favour to the complainant in this matter cannot be accepted by this court. Neither in the complaint nor during the course of his evidence, complainant explained as to how the accused can do any favour to him in this matter. In-fact it has been simply alleged in the complaint that accused has threatened to demolish the building and demanded the bribe amount. When the notice has been issued by the Assistant Executive Engineer, question of accused demolishing the building, being the Assistant Engineer, would not arise.
33. As per the complaint allegations and the evidence of the complainant, even before lodging the complaint, he has approached the Karnataka Appellate Tribunal challenging the provisional order passed for demolition of his building. During the course of evidence, said provisional order passed by the Karnataka Appellate Tribunal is marked as per Ex.P.18. As per Ex.P.18, stay order was passed on 08- 06-2011. The complaint as per Ex.P.3 was lodged before the Lokayuktha Police on 23-06-2011, which is about 15-days after the stay granted by the Karnataka Appellate Tribunal. When the Karnataka 25 Spl. C.C. No.29/2012 Appellate Tribunal has stayed the operation of the provisional order, neither the accused not any other officials of the BBMP can do anything in respect of the notice and cannot proceed with the demolition process. So, on the date of lodging the complaint and on the date of alleged trap, there was stay order by the Karnataka Appellate Tribunal, staying the execution and operation of the notice and provisional order passed for demolition. When the demolition order has been stayed, question of accused or any other official's proceedings with the demolition work would not arise. At the same time, question of accused demanding the bribe amount by threatening to demolish the building also would not arise, when there is stay order. So, all these factors would clearly demonstrate before this court that accused has got no official act or duty to be performed in favour of the complainant, so as to demand the illegal gratification from him. When no official act or work is pending before the accused, question of he demanding the illegal gratification appears to be unacceptable and improbable.
34. Regarding official act pending before the accused as one of the essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988, it is necessary to refer a 26 Spl. C.C. No.29/2012 decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
35. The Hon'ble High Court of Karnataka has reiterated the same view in recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
36. 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, theory of the prosecution in the case on hand cannot be accepted, since no official work is to be done by the accused, relating to the complainant. It is not the case of the 27 Spl. C.C. No.29/2012 complainant or prosecution that accused demanded the bribe amount for doing that work through the Assistant Executive Engineer, who has issued notice and passed provision order for demolition. When there are no such allegations in the complainant and no evidence in this regard, this court can not presume that accused has demanded the bribe amount to do that work through the Assistant Executive Engineer. According to me, on this score alone, prosecution case must fail. Even if the prosecution proves the demand and acceptance of the bribe amount, when the official act is not pending before the accused, said demand and acceptance of bribe amount cannot be considered as an illegal gratification.
37. The next question, which has to be considered by this court is regarding the alleged demand of bribe amount. It is well established principle of law laid down by the Hon'ble Supreme Court and High Court of Karnataka vide catena of decisions that 'demand of illegal gratification by the public servant is an essential requirement to constitute the offence under Sec.7 of the Prevention of Corruption Act, 1988. In this particular case, as per the prosecution theory, there was demand of bribe amount by the accused on two stages. The first stage is before lodging the complaint, when the complainant approached the 28 Spl. C.C. No.29/2012 accused in response to the notice and demolition order issued by them. According to the prosecution, second stage when the accused demanded the bribe amount is at the time of trap when the complainant met the accused. If the prosecution able to establish the demand of bribe by the accused in any one of these two stages, they can succeed in bringing home the guilt of the accused.
38. So far as the first stage when the demand of bribe amount is made, prosecution relied upon the complaint allegations and evidence of the complainant to prove the same. Apart from these two, the prosecution has also relied upon the recordings made in the voice recorder given to him by the Lokayuktha Police, when he met the accused. It is on the basis of these, prosecution tried to prove the demand of bribe amount by the accused before lodging the complaint.
39. The complainant examined before this court as PW.2 and complaint lodged by the complainant is marked as per Ex.P.2. Of- course, in the complaint, complainant has specifically alleged that he approached the accused, when he received the provisional order for demolition of the building and accused has demanded the bribe amount of Rs.1,00,000/- from him by threatening to demolish the illegal construction. Mere complaint allegations are not sufficient to 29 Spl. C.C. No.29/2012 accept the prosecution version regarding alleged demand of bribe made before lodging the complaint. The complainant allegations are to be supported with the evidence of the complainant and have to be corroborated with the other evidence.
40. If I draw my attention to the evidence of the complainant, who was examined before this court as PW.2, in his examination in chief, PW.2 has not whispered anything about the demand of bribe amount made by the accused. In para 2 of his examination in chief, complainant/PW.2 said that one Kenchappa, Assistant Executive Engineer has issued provisional order stating that there was some deviation from the sanctioned plan. Thereafter his friends advised him to lodge the complaint against the accused. PW.2 further said that he was told by the Lokayuktha Police Inspector that there must be allegation for demand of bribe, failing which the complainant cannot be entertained. Accordingly, he lodged the complaint as per Ex.P.3. So, in his examination in chief, complainant/PW.2 has not whispered anything about he approaching the accused and accused demanding the bribe amount from him. Rather, complainant/PW.2 said that notice was issued by the Assistant Executive Engineer, Kenchappa and he was advised by his friends to lodge the complaint against the accused 30 Spl. C.C. No.29/2012 and Lokayuktha Police told him that in the complaint there should be allegation regarding demand of bribe amount, because of which, he has lodged the complaint as per Ex.P.3. Having noticed that the complainant/PW.2 has not supported its case regarding the alleged demand of bribe made by the accused before lodging the complaint, prosecution has treated the complainant/PW.2 as hostile witness and cross examined him. During the course of his cross-examination, when it was suggested to PW.2 that on 28-05-2011, when he approached the accused, accused demanded the bribe amount of Rs.1,00,000/-, accused has not chosen to answer the suggestion. When it was again suggested to complainant/PW.2 on 31-05-2011, when he met the accused and pleaded his inability to pay Rs.1,00,000, accused asked him to arrange Rs.50,000/-, witness said that he does not remember the same. So, even during the course of his cross-examination by the learned Public Prosecutor, complainant/PW.2 has not said that there was demand of bribe amount by the accused.
41. Now, it is relevant to refer some of the statement given by the complainant/PW.2 during the course of his cross-examination by the learned counsel for the accused. In page 9 and para 10 of his cross-examination, complainant/PW.2 has specifically admitted that 31 Spl. C.C. No.29/2012 earlier to lodging of the complaint, accused has not demanded the bribe from him. Even in para No.11 and page No.10, complainant/PW.2 repeatedly said that accused has not demanded the bribe amount from him. This court cannot ignore these statements of complainant by saying that they are the stray admissions or statements given during the course of cross-examination by a witness, because even in his examination in chief and cross-examination by the learned Public Prosecutor, complainant/PW.2 never said that accused has demanded the bribe amount from him before lodging the complaint. In-fact during the course of his cross-examination by the learned Public Prosecutor, PW.2 went on denied about he giving the statement as per Ex.P.13 and 14. So, though there is an allegation in the complaint regarding the demand of bribe amount made before lodging the complaint, same has not been proved since the complainant/PW.2 himself has not said that there was demand of bribe amount by the accused before lodging the complaint. So, neither the complainant allegations nor the evidence of the complainant would help the cause of the prosecution to prove the demand of bribe amount made before lodging the complaint.
32 Spl. C.C. No.29/2012
42. One more evidence, which the prosecution relied upon to prove the alleged demand of bribe amount, before lodging the complaint, is the recordings made in the voice recorder by the complainant. The complainant has produced the voice recorder, which contain the recording made by him, along with the complaint, before the Lokayuktha Police. As per the evidence of Investigating Officer, who was examined as PW.6, recordings in the voice recordedr was transmitted to a CD and said CD was displayed in the presence of CW.3 and 4 and its transcription were made as per Ex.P.5. The Investigating Officer has not produced the voice recorder, in which the alleged recordings were made. The documents produced before this court in the form of CD and in the form of transcription of the recordings are only the secondary evidence. The primary evidence is the voice recorder, in which recordings were made and same has not been produced before this court.
43. Regarding the appreciation of electronic evidence, it is necessary to refer the 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 electronic records are not produced before the 33 Spl. C.C. No.29/2012 court, unless the secondary evidence is accompanied by the certificate under Sec.65B of the Indian Evidence Act, said secondary evidence is not admissible in evidence. 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 secondary evidence.
44. In case on hand, though the prosecution has produced the secondary evidence of electronic records like recordings made in the voice recorder in the form of a CD, same is not accompanied by any certificate under Sec. 65(B) of the Indian Evidence Act. According to me, in view of the above referred Three Judges Bench decision of Hon'ble Supreme Court, whatever the electronic evidence produced by the prosecution cannot be accepted by this court.
45. The Investigating Officer has also not made any attempt to obtain the specimen voice of the accused, so as to compare the same with the voice recorded in the voice recorder and now found in the CD. No reasons are forth coming from the investigating officer for not 34 Spl. C.C. No.29/2012 subjecting the recordings in the CD for expert examination by comparing the same with the specimen voice of the accused. On this score also, I have to say that the secondary evidence of the electronic records produced by the prosecution cannot be accepted by this court. So, absolutely there is no evidence before this court to prove the alleged demand of illegal gratification made by the accused before lodging the complainant. Hence, I say that the prosecution has failed to prove the alleged demand of illegal gratification made by the accused before lodging the complaint.
46. Now, I have to consider the question relating to demand of bribe amount during the second stage i.e., after lodging the complaint and at the time of trap. To prove the same, prosecution relied upon again the evidence of complainant and the evidence of shadow witness and the recordings made in the button camera, which was given to the complainant at the time of drawing the entrustment mahazar. According to the prosecution, at the time of trap, complainant and shadow witness went inside the office of accused and thereafter accused took them out side the office and when they were going on the road, adjacent to the office, there was demand of bribe amount by 35 Spl. C.C. No.29/2012 the accused and accordingly the tainted currency notes were handed over to the accused.
47. Again, if I draw my attention to the evidence of the complainant, who was examined before the court as PW.2, he has never said that at the time of trap when he met accused he has demanded the bribe amount from him. In page 3 of his examination in chief, PW.2 said that he was taken to the office of Assistant Engineer, BBMP and two informants and Lokayuktha Police Inspector went to the BBMP ward office and he gave tainted currency notes to the accused out side the office of accused and conveyed the message to Lokayuktha Police by removing his spectacles. These are the statement given by the complainant/PW.2 regarding the incident, which took place at the time of trap, when he handed over the tainted currency notes to the accused. The complainant/PW.2 never said that accused has demanded the bribe amount from him and accordingly he has handed over the currency notes to the accused. Rather, PW.2 simply said that he gave the tainted notes to the accused out side his office. There is no whisper in the evidence of PW.2 regarding accused demanding the bribe amount on that occasion.
36 Spl. C.C. No.29/2012
48. CW.3, who was examined as PW.3, was designated as a shadow witness and he was asked to accompany the complainant while he meeting the accused. CW.3, who was examined as PW.3, said during the course of his cross-examination that after reaching near the office of accused, he was told by the Investigating Officer to remain on the road behind the office and PW.2, along with CW.2 and CW.4 went to the office. PW.3 further deposed that thereafter he along with Dayananda went near the road in-front of BBMP office and noticed the accused, CW.21 and CW.4 and CW.4 took out the cash of Rs.30,000/- from the left pant pocket of the accused. So, even the shadow witness, who was accompanied the complainant, at the time of paying the tainted currency notes, has not deposed about the accused demanding the bribe amount from the complainant and complainant handing over the amount to the accused. So, even the shadow witness has not supported the prosecution case regarding alleged demand of bribe amount made by the accused at the time of trap.
49. Even during the cross-examination of complainant/PW.2 by the learned Public Prosecutor no material aspects were brought from the complainant to prove that the accused has demanded the bribe amount at the time of trap. PW.2 went on deny about he giving the statement as per Ex.P.13 and Ex.P.14 regarding alleged demand of 37 Spl. C.C. No.29/2012 bribe amount. Even shadow witness/PW.3 went on deny about he giving the statement as per Ex.P.7 and Ex.P.8 regarding alleged demand of bribe amount. In para 10 and 11 of his cross-examination, complainant/PW.2 said that the accused has not demanded the bribe amount from him. So, both the PW.2 and 3 have not said that there was demand of bribe amount by the accused at the time of trap. Because of these reasons, I have to say that the prosecution has failed to prove the demand of bribe amount made by the accused on both the stages.
50. Regarding the demand of illegal gratification by the accused at the time of trap, another evidence relied upon by the accused is recording made in the button camera. Even in respect of the recording in the button camera, only the CD and transcription of the recordings were produced before this court and primary evidence has not been produced before the court. The secondary evidence produced before this court is not accompanied by the certificate under Sec.65(b) of the Indian Evidence Act. Therefore, in view of the above said reasons and decision of the Hon'ble Supreme Court in Anwar V/s P.K.Basheer's case, this court can not consider those CD and transcription of the recordings. Thereby, I have to say that there is no evidence to prove 38 Spl. C.C. No.29/2012 the alleged demand of illegal gratification by the accused at the time of trap. Therefore, I have to say that prosecution has failed to prove the demand of bribe made by the accused.
51. 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.
52. 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.
53. Now let me consider the next important question regarding acceptance of the bribe amount by the accused. Regarding acceptance 39 Spl. C.C. No.29/2012 of the bribe amount, prosecution relied upon the evidence of the complainant, shadow witness and also the positive phenolphthalein test report. Apart from that, to corroborate all these, prosecution relied upon the evidence of panch witness and also the evidence of Investigating Officer. Of-course, deposition of all these witnesses, coupled with the positive phenolphthalein test report, shows that the accused was found with the tainted currency notes of Rs.30,000/- at the time of trap. When the left hand fingers of the accused was washed in the sodium carbonate solution, it turned into light pink colour, whereas when his right hand fingers were washed in the sodium carbonate solution, it did not turn into any colour. On the basis of the positive phenolphthalein test report and findings of tainted currency notes with the accused at the time of trap, prosecution tried to prove before this court that the accused has accepted the illegal gratification of Rs.30,000/- from the complainant.
54. Now, the question before this court is as to whether the positive phenolphthalein test report and finding of the tainted currency notes with the accused and recovery of the same from accused, can be basis to prove that accused has demanded and accepted the illegal gratification in order to hold him the guilty of the charges leveled against him.
40 Spl. C.C. No.29/2012
55. In this regard, it is necessary to consider the decision of Hon'ble Supreme Court reported in 2000 Supreme Court Cases 878 (Smt. Meena 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.
56. 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.
57. 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 41 Spl. C.C. No.29/2012 demand, would not establish the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988. It was further held in the said decision that, in the absence of any proof about demand for illegal gratification, use of corrupt or illegal means or abuse of position, as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved.
58. 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.
59. By keeping in mind the ratio laid down in the above decisions I have to consider as to whether mere possession of the tainted 42 Spl. C.C. No.29/2012 currency notes by the accused and positive phenolphthalein test can be basis for holding that the accused has received the tainted currency notes as an illegal gratification. Though, complainant, shadow witness, panch witness and Investigating Officer have deposed before the court, in this regard, their oral testimonies are not consistent enough to accept the oral testimony. As I said earlier, complainant/PW.2 said during the course of his evidence that he gave tainted currency notes to the accused out side the office of accused. PW.2 never said that the accused has demanded the bribe amount from him. The complainant/PW.2 has also not said as to how the accused has received the tainted currency notes from him and where did he kept after receiving the same. During the course of his cross-examination by the learned counsel for the accused, in page 10 complainant/PW.2 specifically admitted that after he met the accused, he has not demanded the bribe and told him that he would take him to the Assistant Engineer. PW.2 again said that the accused has not demanded bribe from him and as per the instruction of CW.21 he kept the tainted currency notes in the left pant pocket of the accused. PW.2 further said that as per the instruction of CW.21, he placed the tainted notes at the hands of the accused. PW.2 further said that PW.4 took out the currency notes from the left pant pocket of the accused. All 43 Spl. C.C. No.29/2012 these statements of complainant/PW.2 goes to show that there is no demand and acceptance of the tainted currency notes by the accused.
60. The shadow witness, who was examined before this court as PW.3, has given all together different version. PW.3 never said that he has seen the accused receiving the tainted currency notes. Rather, he simply said that CW.4 took out the cash of Rs.30,000/- from left side pant pocket of the accused. PW.3 specifically denied the suggestion about he giving the statements as per Ex.P.7 and 8 regarding the demand and acceptance of the illegal gratification by the accused.
61. The panch witness, who was examined as PW.4, deposed that he was waiting along with the Lokayuktha Police and he was told by CW.2 to take out the currency notes from the left side pant pocket of the accused and accordingly he took out the same. PW.4 said that finger wash of hands of accused turned into light pink colour. Again PW.4 has denied the suggestion about he giving the statement as per Ex.P.10.
62. CW.5 is a police constable working in the Lokayuktha Police and he was examined as PW.5 and according to the prosecution, he was present when accused accepted the tainted currency notes from the complainant. In his examination in chief, PW.5 said that they 44 Spl. C.C. No.29/2012 reached the spot at about 5.30 p.m. and at 6-00 p.m., PW.2 and accused came near the tea shop and he has seen the PW.2 giving Rs.30,000/- to the accused. If I draw my attention to the trap mahazar, all these incidents were taken place at about 4.20 p.m. But, quite contrary to the prosecution case and trap mahazar, PW.5 said that it is at 6-00 p.m. This court cannot ignore this contradiction because PW.5 is a police constable working in the Lokayuktha Police.
63. The Investigating Officer, who was examined before this court as PW.6 said that after receiving the signal from the CW.1 they gone to the spot and surrounded the accused and conducted hand wash of the accused. PW.6 further said that complainant told him that the accused has received the amount from his left hand and kept in his left side pant pocket. Thereafter, same was recovered. Though Investigating Officer has deposed as per the trap mahazar, other evidence in support of the same are not consistent with each other. Therefore, these evidences do not inspire the confidence to say that accused has accepted or received the illegal gratification.
64. Even for the sake of arguments, it is accepted that the accused has voluntarily accepted the tainted currency notes, there is no evidence to show that it is an illegal gratification. Because, in order 45 Spl. C.C. No.29/2012 to say that it is an illegal gratification, apart from the acceptance, there should be an evidence to show that some official act relating to the complainant was pending before the accused and for doing the official favour, accused would have demanded the bribe amount. If these two requirements are proved, then accused possessing the tainted currency notes can be held as it is an acceptance of the illegal gratification. In view of above reasoning, I already hold that the prosecution has failed to prove the pendency of the official act relating to the complainant before the accused or accused doing any official favour to the complainant. The prosecution has also failed to prove the demand of bribe amount by the accused. When these two essential requirements are not proved, accused having tainted currency notes and mere recovery of the same, cannot be a ground to say that the accused has accepted the tainted currency notes as an illegal gratification.
65. The learned Public Prosecutor put forward an alternative arguments before this court that, even if the prosecution evidence is not accepted regarding official act of the accused to be performed in favour of the complainant and demand of illegal gratification by the accused, still there is evidence to show that accused was found in 46 Spl. C.C. No.29/2012 possession of the tainted currency notes, when he was trapped. According to the learned Public Prosecutor, even if Sec. 7 of the Prevention of Corruption Act is not attracted, accused can be convicted for the offence punishable under Sec. 13(1)(d) of the Prevention of Corruption Act, since Sec. 13(1)(d)of the Prevention of Corruption Act, do not mandates the requirement of the official act and demand by the public servant to constitute the offence. According to the learned Public Prosecutor, public servant possessing the illegal gratification itself is sufficient to hold that he has committed the offences punishable under Sec. 13 (1)(d) of the Prevention of Corruption Act.
66. In support of this arguments, learned Public Prosecutor has relied upon a decision of Hon'ble Supreme Court reported in 2002 (2) Crimes 267 (SC) (Subash Parbat Sonvane V/s State of Gujarat). In that particular case, Hon'ble Supreme Court has laid down the law relating to the distinction between the words 'accepts' and 'obtains' incorporated under Sec.7,11,13(1)(a)(1)(b) and 13(1) (d) of the Prevention of Corruption Act. As per the ratio laid down by the Hon'ble Supreme Court, for convicting the person under Sec.13(1)(d) of the Prevention of Corruption Act, there must be evidence on record that accused 'obtained' for himself or for any other person any valuable 47 Spl. C.C. No.29/2012 thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant. It is true that word 'demand' or 'official act' or 'official favour' has not been used under Sec.13 (1)(d) of the Prevention of Corruption Act. On that score, a public servant cannot be convicted merely on the ground that he was found in possession of the tainted currency notes. There should be evidence before the court that the accused has accepted the tainted currency notes by abusing his position as a public servant. It was held by the Hon'ble Supreme Court in a decision reported in 1996 Supreme Court Cases (Cri) 102 (State by Special Police establishment V/s D.Krishnamurthy) that where the abuse of position as a public servant is lacking, mere obtaining the valuable thing or pecuniary advantage by some means, be they illegal or corrupt, not enough to found him guilty and to convict him. In the case on hand, accused has got absolutely no act to be done in respect of the complainant. Therefore, one cannot say that he has abused his official position for receiving the illegal gratification. Hence, I am unable to accept the arguments of the learned Public Prosecutor to convict the accused, even for the offences punishable under Sec.13(1)(d) of the Prevention of Corruption Act, 1988.
48 Spl. C.C. No.29/2012
67. The complainant and shadow witnesses have not fully supported the prosecution case. Therefore, they were treated as hostile witnesses by the learned Public Prosecutor and these witnesses were cross-examined by the learned Public Prosecutor. Since all these witnesses have not supported the case of prosecution, it has summoned CW.15, who was then 17th Additional Chief Metropolitan Magistrate, Bengaluru and she recorded the statement of complainant under Sec. 164 of Cr.P.C. Of-course CW.15, who was examined as PW.8, deposed that complainant has voluntarily given statement U/s 164 of Cr.P.C. as per Ex.P.11. But, on the basis of the evidence of PW.8, prosecution cannot prove the guilt of the accused. It was held by the Hon'ble High Court of Karnataka in a decision reported in 2006 Crl.L.J. 4813 (P. Diwakara V/s State of Karnataka) that, statement of witnesses recorded by the Magistrate under Sec. 164 of Cr.P.C. is not a substantive piece of evidence. Rather, it can be used to either to corroborate or to contradict and no conviction can be placed on the basis of the statement of witnesses recorded by the Magistrate under Sec. 164 of Cr.P.C. Therefore the evidence of PW.8 would not help the prosecution in any way, when PW.1 and 2 have not supported the prosecution case to 49 Spl. C.C. No.29/2012 prove the alleged demand and acceptance of the bribe amount by the accused.
68. The careful scrutiny of the evidence of PW.2 to 6 goes to show that they are not consistent with each other. There is no corroboration for the evidence of these witnesses. When there is no corroboration for the evidence of complainant or the shadow witnesses' conviction cannot be based in the cases like. This view of mine is based upon the decision of Hon'ble Supreme Court reported in 2011 (2) Supreme Court Cases (Cri)1010 (State of Kerala and another V/s C.P.Rao), 1974 Supreme Court Cases (Cri) 73 (Darshan Lal V/s The Delhi Administration), 1981 Supreme Court Cases (Cri) 586 (Gulam Mahmood A. Malek V/s State of Gujarat), 2010 (2) Supreme Court Cases (Cri) 864 (Banarsi Dass V/s State of Hariyana), 2006 (3) KCCR 1422 (Manjunath Basappa Basavamurthy V/s The State of Karnataka), 2006 (3) KCCR 1445 (State of Karnataka V/s K.T.Hanumanthaiah) and AIR 2016 Supreme Court 298 (Krishnan Chander V/s State of Delhi).
69. To sum-up my discussion, prosecution has failed to prove that the official act is pending before the accused in respect of the 50 Spl. C.C. No.29/2012 complainant. The evidence on record goes to show that, accused has got nothing to do in respect of the notice and order passed for demolition of the structures constructed by the complainant. Moreover, on the date of lodging the complaint and trap, there was stay order by the Karnataka Appellate Tribunal, because of which neither the accused nor any other officials of BBMP can do any favour to the complainant and also can not proceed with the process of demolition of illegal construction. The prosecution has failed to prove the demand of bribe amount by the accused, either before lodging the complaint or at the time of trap, which is an essential requirement to constitute the offences under Sec. 7 of the Prevention of Corruption Act 1988. 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, 51 Spl. C.C. No.29/2012 concrete and convincing evidence before this court. Therefore, by extending the benefit of doubt, accused has to be acquitted. Accordingly, I answer the points No.2 and 3 in the Negative. POINT No.4:
70. In view of my findings on the above points, accused deserves to be acquitted. Accordingly, I proceed to pass the following order:
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and his surety stands cancelled.
MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period.
MO.2 to 12 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period.52 Spl. C.C. No.29/2012
MO.13 is ordered to be confiscated to the State Government after expiry of appeal period.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 11th day of January 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: S.S.Virakthamata PW.2: K.C.Veeranna Shetty PW.3: H.N. Shivalingaiah PW.4: K.P.Mahalingaiah PW.5: T.D.Chandrashekar PW.6: S.T.Yogesh PW.7: Sannathammappaiah Wadeyar PW.8: Smt. S.Nagashree.
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Copy of note sheet 53 Spl. C.C. No.29/2012 Ex.P.3: Complaint Ex.P.3(a to c): Signatures of PW.2 Ex.P.3(d): Signature of PW.6 Ex.P.4: Trap mahazar Ex.P.4(a to h): Signatures of PW.3 Ex.P.4(i to p): Signatures of PW.4 Ex.P.4(q to x): Signatures of PW.2 Ex.P.4(y): Signature of PW.5 Ex.P.4(z): Signature of PW.6 Ex.P.5: Voice recorder transcription Ex.P.5(a to d): Signatures of PW.3 Ex.P.5(e to h): Signatures of PW.4 Ex.P.6: Pre trap mahazar Ex.P.6(a to g): Signatures of PW.3 Ex.P.6(h to n): Signatures of PW.4 Ex.P.6(o to u): Signatures of PW.2 Ex.P.6(v): Signature of PW.6 Ex.P.7: Portion of the statement of PW.3 Ex.P.8: Portion of the statement of PW.3 Ex.P.9: Currency details sheet Ex.P.9(a & b): Signatures of PW.3 Ex.P.9(c): Signature of PW.6 Ex.P.10: Portion of the statement of PW.4 Ex.P.11: 164 Cr.P.C. statement of PW.2 Ex.P.11(a to c): Signatures of PW.2 Ex.P.12: Spy camera transcription Ex.P.12(a & b): Signatures of PW.2 Ex.P.12(c): Signature of PW.6 54 Spl. C.C. No.29/2012 Ex.P.13: Portion of the statement of PW.2 Ex.P.14: Portion of the statement of PW.2 Ex.P.15: FIR Ex.P.15(a): Signature of PW.6 Ex.P.16: Order of BBMP Ex.P.17: Copy of application Ex.P.18: Copy of stay order Ex.P.19: Requisition to KIDAB Ex.P.20: Order of KIDAB Ex.P.21: Rough sketch Ex.P.21(a): Signature of PW.6 Ex.P.22: Charge sheet page 83 to 118 documents Ex.P.23: Copy of attendance of accused Ex.P.24: Voice identification report Ex.P.24(a): Signature of PW.6 Ex.P.25: Model seal Ex.P.25(a): Signature of PW.6 Ex.P.26: Acknowledgement by CW.4 Ex.P.26(a): Signature of PW.6 Ex.P.27: Accused statement Ex.P.27(a): Signature of PW.6 Ex.P.27(b): Signature of accused Ex.P.28: Chemical analysis report Ex.P.29: Call details Ex.P.30: Sketch of spot Ex.P.31: Requisition Ex.P.31(a): Signature of PW.6 55 Spl. C.C. No.29/2012 Ex.P.32: Duty allocation details. Ex.P.33: Duty Particulars.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: 'T' metal seal MO.2: Sample solution MO.3: Pink colour solution MO.4: CD MO.5: CD MO.6: CD MO.7: Sample solution MO.8: Solution MO.9: Pink colour solution MO.10: Pant MO.11: CD MO.12: CD MO.13: Currency notes LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Copy of sanctioned plan (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 56 Spl. C.C. No.29/2012 (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 his surety stands cancelled. MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police, City Wing, Bengalore, after expiry of appeal period. MO.2 to 12 are worthless. Hence, they are ordered to be destroyed after expiry of appeal period. MO.13 is ordered to be confiscated to the State Government after expiry of appeal period. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78) 57 Spl. C.C. No.29/2012