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2017 Supreme(Kar) 1314
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
BUDIHAL R.B., J.
Sri B.S. Anand Kumar S/o Late S.A. Srinivas Murthy – Appellant
Vs.
State of Karnataka - Respondent
CRIMINAL APPEAL No.1342 of 2017
Decided on : 12-12-2017
Advocate Appeared:
For the Appellant : Sri Ravi B. Naik, A/w Sri P. N. Hegde, Adv.
For the Respondent: Sri B. S. Prasad, Adv.
Headnote:PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Sections 7 & 13(1)(d) r/w Section 13(2) - Appeal against conviction for demand and acceptance of bribe for doing official favour - Prosecution case clearly witnesses, the quantum of amount of bribe allegedly demanded by accused and given by the complainant and other crucial aspects-Firstly, the complainant stated that he lodged a complaint after having conversation between himself and the accused-After recording the same in the voice recorder, he came back to Lokayukta Office-But his oral evidence, on oath is totally different-That after he lodged the complaint, he was given a voice recorder and he went and recorded his conversation with the accused-Admittedly, the shadow witness has not at all accompanied the complainant-Secondly, in his oral evidence, Rs.3,000/- as the amount, which he agreed to pay, as against demand for Rs.10,000/- is mentioned-Whereas, he deposed on other hand that he agreed to pay Rs.8,000/- - He further deposed that he has produced Rs.5,000/- before the Lokayukta Police-If the demand was Rs.8,000/- why and how the complainant produced Rs.5,000/- before the Lokayukta Police was not explained-Thirdly, material go to show that tainted notes were not at all handled by the accused-Even the trap mahazar proceedings as well as oral evidence of prosecution witnesses clearly show that said currency notes were taken out of the table drawer of the accused person where the complainant had put - Again, the evidence of Investigating Officer shows that hand washing of accused in the sodium carbonate solution was not at all required in the case - But, as per P.Ws.1 and 4, hand wash was taken and inspite of that the solution did not turn into pink colour - in view of the foregoing, held, the impugned judgment and order of conviction are not in accordance with materials placed on record - There is blatant illegality in coming to such conclusion - Conviction and sentence set aside.
PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Section 19 - Requirement of sanction as provided under - Special Judge discharged the accused from the proceedings on the ground that sanction order was not valid sanction order and directed the concerned authorities to issue the sanction order - Subsequent sanction order has been issued - These factual aspects go to establish that the sanction order, relied upon by the prosecution is not a valid sanction order and not in accordance with provisions of Section 19.
CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 154 - Information in cognizable cases - Demand for bribe - Mandatory requirement of registration of FIR, immediately on receiving information as provided under Section 154 was not complied with in present case, although all details were furnished to the Lokayuktha by the complainant, at the moment of time itself - Therefore, materials clearly go to show that giving of voice recorded to the complainant, again asking him to go to the accused, have conversation about bribe amount recorded is nothing but an intention to collect evidence, which process for purpose of preliminary enquiry is not contemplated under Section 154 of the Cr.P.C.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 65-B -Admissibility of electronic records as secondary evidence - Requirement of certification, as provided under Section 65-B(4) - Conversation between the complainant and accused regarding alleged demand for bribe for doing an official favour, recorded in voice recorder and subsequently transferred to the Compact Disc (CD) with the help of computer or conversation taken out by way of script and produced before the Special judge - Held, cannot be received in evidence, as Section 65-B is not at all complied with. Submission of prosecution that the statement is having the signature of the Competent Officer and that signature itself is to be treated as a certification under the provisions of Section 65-B, but I.O. himself stated in his evidence that there is no signature.
This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction and sentence dated 20.7.2017 passed by XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru, in Spl.C.C. No.168/2012. By the said judgment, the appellant-accused has been convicted for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short the P.C. Act) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.4,000/-, in default, to undergo simple imprisonment for one month. The appellant-accused has been further sentenced to undergo imprisonment for one year for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act and to pay fine of Rs.6,000/-, in default, to undergo simple imprisonment for two months.
2. The case of prosecution as per complaint averments is that accused being public servant was working as Junior Engineer in the Office of the BESCOM. C.W.1 (R.K. Muniraju) being an electrical contractor submitted application to the BESCOM for preparation of sketch in respect of the building of one M. Srinivas. On 13.12.2010, C.W.1 approached the accused for the said purpose for which the accused demanded Rs.10,000/- towards illegal gratification and on the request of C.W.1, he reduced to Rs.5,000/-. As C.W.1 was not willing to pay the bribe amount, he approached Lokayuktha Police Station and made an oral complaint. The further averments is that the Police Inspector of Lokayuktha gave voice recorder to C.W.1 and instructed to record the demand of bribe amount from the accused to do official favour. Accordingly, C.W.1 approached the accused along with the voice recorder and recorded the demand of bribe and went to Lokayuktha police station and lodged a report with the Police Inspector. On the basis of which a case came to be registered in Cr.No.62/2010 for the alleged offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. After completion of investigation, the investigating officer filed charge sheet as against the accused-appellant herein for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. After hearing both sides, the Court below framed the charges as against the appellant-accused for the said offences and when read over, the accused denied the charges and claims to be tried.
3. The prosecution, in all, has examined 5 witnesses as per P.Ws.1 to 5 and got marked the documents as per Exs.P.1 to P.26 so also got marked the material objects as per M.O. Nos.1 to 10. On the side of defence, no witness was examined nor got any documents marked.
4. After hearing the arguments of both sides, the Court below came to the conclusion that the prosecution has proved the charges as against the accused beyond reasonable doubt and accordingly, he has been convicted for the said offences. Therefore, the accused is before this Court challenging the legality and correctness of the said judgment and order of conviction so also the sentence imposed by the Court below on the grounds as mentioned in para Nos.18 to 25 of the appeal memorandum.
5. Heard the arguments of learned Senior Advocate appearing for the appellant-accused so also learned Spl.P.P. appearing for the respondent Lokayuktha.
6. Learned Senior Advocate appearing for the appellant during the course of his arguments made submission that so far as sanction order is concerned, it is not a valid sanction order. Even on an earlier occasion, when the Special Judge discharged the accused from the proceedings on the ground that the sanction order was not the valid sanction order, directed the concerned authorities to issue the valid sanction order. The Special Judge ought not have issued such a direction to the authorities for issuing the sanction order. This goes to show that because of direction issued by the learned Special Judge, the subsequent sanction order, which was relied upon by the prosecut
