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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
A.V. CHANDRASHEKARA, J.
R. Srinivasan & Ors. - Appellants
Vs.
State By Police Inspector Lokayuktha Bangalore Rep. by State Special Public Prosecutor - Respondent
CRL.A. No.702/2015
Decided on : 27.11.2015
PREVENTION OF CORRUPTION ACT, 1988 - Section 7: [A.V. Chandrashekara, J] Receiving bribe - Co-accused charged of having allegedly demanded and received bribe cannot be asked to be a witness to pay the same to accused that too, at instance of Investigation officer who had already taken him into his custody - Such procedure adopted in present case is virtually unknown to law and established procedure.
PREVENTION OF CORRUPTION ACT, 1988 - Section 7: [A.V. Chandrashekara, J] Demand and receipt of bribe - Alleged demand stated to have been made by accused Nos. 1 and 2 prior to trap was not established beyond reasonable doubt - Shadow witness not stating anything about demand made by accused - Comprehensive Mahazar drawn for two different places where accused received bribe, was not proper - Whole episode appearing to be ’induced payment of bribe’ - Presence of phenolphthalein powder not detected in both hands of accused - Prosecution thoroughly failed to prove very receipt of tainted money by accused No. 1 from accused No. 2 - Non-examination of material witness who was senior police officer working in Lokayukta - Evidence of complainant self-contradictory - Evidence of other prosecution witnesses inherently contradictory to each other - Non-payment of money by 2nd accused to 1st accused further supported by FSL report - Held, Prosecution failed to prove alleged demand for bribe in terms of Section 7 and consequential receipt of money preceded by demand by 2nd accused. Prosecution also failed to prove very demand made for and receipt of money by 1st accused.
PREVENTION OF CORRUPTION ACT, 1988 - Section 7: [A.V. Chandrashekara, J] Charge, under - Receipt of bribe money by two accused persons at two different places - Drawing up of comprehensive Mahazar at two places instead of separate Mahazar is unknown to law.
PREVENTION OF CORRUPTION ACT, 1988 - Section 7: [A.V. Chandrashekara, J] Demand of bribe - Explanation that colour of solution turned into pale pink on hand wash of accused and that it has faded over period of time has neither reason nor logic and therefore cannot be accepted.
PREVENTION OF CORRUPTION ACT, 1988 - Section 20: [A.V. Chandrashekara, J] Presumption, under - Held, Mere possession of money would not be adequate to raise a presumption.
The present appeal is filed under Section 374, Cr.P.C. challenging the judgment and conviction and passed against them by the XIII Additional City Civil and Sessions Judge cum Special Judge, Bengaluru City, in CCH.24 in Spl.Case No.87/06. They have faced a trial for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as the Act, for brevity) along with Section 34, I.P.C.
2. After concluding investigation, charge sheet came to be registered as Special C.C.133/03. The 1st appellant is sentenced to undergo RI for a period of two years and to pay a fine of Rs.20,000/- for the offence punishable under Section 7 of the Act and to undergo RI for a period of 2 years and 6 months and to pay a fine of Rs.25,000/- for the offence punishable under Section 13(2) of the Act. The 2nd accused (2nd appellant) is also directed to undergo similar imprisonment as imposed on the 1st accused-1st appellant. The judgment of conviction and sentence dated 11.6.2015 is called in question in this appeal on various grounds as set out in the appeal memo.
3. Charges came to be framed against both the appellant on 12.4.2012 by the special court. The gist of the allegations, as per the charges, is that both of them demanded PW-3,Bheemaiah, husband of Smt. K.P. Poovamma (CW-4), owner of Shakti Bar and Restaurant Bangalore, to pay Rs.30,000/- as bribe for not levying pro-rata charges relating to the water connection of the restaurant. It is alleged that both the accused demanded Rs.30,000/- from Bheemaiah as bribe to show official favour and the 2nd accused received Rs.30,000/- at 1.30 p.m. on 19.3.2002 and later on the 1st accused received the said amount of Rs.30,000/- from the 2nd accused at 2.35 p.m. in the office. It is alleged that the 2nd accused received the amount of Rs.30,000/- from Bheemaiah on the instructions of the 1st accused. It is alleged that the 1st accused received the tainted amount from the 2nd accused in his office at No.C-2 Sub-division of BWSSB, High Grounds, Bengaluru.
4. To bring home the guilt of the accused, prosecution has examined in all 5 witnesses and got marked 27 exhibits and 14 material objects. The case of the accused is one of total denial of the allegations made against them and no evidence is adduced on their behalf. They have been examined under Section 313, Cr.P.C. Both of them have emphatically denied the existence of any possibility to do any official favour to the complainant or his wife and the alleged demand and receipt of the tainted amount.
5. PW1-Ashok Kumar Munoli who was the chairman of BWSSB at the relevant time, has accorded sanction to prosecute the appellants and it is marked as Ex.P2. The learned judge of the trial court has held that the sanction so accorded by PW1 is valid. PW2-Chennakeshava is the attestor to the entrustment mahazar stated to have been drawn in the office of Lokayukta relating to the tainted money smeared with phenolphthalein powder being kept in the pocket of PW3-complainant. It is also stated that he was present when the 2nd accused was trapped while receiving the bribe amount from PW3 in Shakti Bar and Restaurant. PW3-Bheemaiah is the husband of Poovamma, owner of Shakti Bar and Restaurant. It is alleged that he paid the bribe amount of Rs.30,000/- smeared with phenolphthalein powder to the 2nd appellant-Nanjundappa in Shankti Bar and thereafter 2nd accused went to the office and paid the same to the 1st accused.
6. B.Narayanappa-CW3 is examined as PW4. According to the prosecution case, he was the shadow witness to the trap laid in the office when the 1st accused received the tainted money from the 2nd accused. V.P.M.Swamy-CW6 who is examined as PW5, was the officer who investigated the case in question and laid trap in Shakti Bar and Restaurant and the office of Accused No.1.
7. Prosecution has mainly relied on the following circumstances:
i) The Power of the accused to do official favor
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