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2018 Supreme(Kar) 459
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
BUDIHAL R.B., J.
Sri N Raghumurthy S/o T Ningappa - Petitioners
Versus
The State by Lokayuktha Police - Respondents
Criminal Appeal No.750 of 2017
Decided On : 09-02-2018
For the Petitioners: Sri Ravi B Naik, Sr. Counsel A/w Sri Monesh Kumar K.B., Adv.
For the Respondents: Sri Venkatesh S Arbatti, Spl. P.P.
Headnote:PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Sections 7 & 13(2) - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Sections 154(1) & 162 - Scope of - Requirement of registration of FIR - Preliminary enquiry under the P.C. Act - Held, it is not the object to verify the truth or otherwise of the allegations made or, that the registration of FIR can be delayed - Only requirement laid down in Lalita Kumari v Government of U.P., & ors., AIR 2014 SC 187 is that, if the information is pertaining to committing of cognizable offence, then immediately, without wasting time, the said information is to be treated as FIR. - the evidence of Investigating Officer, that he wanted to satisfy at that stage itself, whether the allegations are true of false is not the scope of Section 154(1) of the Cr.P.C. for purpose of registering of FIR of any information received, which he told on oath in his evidence - The act of I.O., giving voice recorder to record conversation with the accused, clearly shows that it is with some purpose the Investigating Officer sent back P.W.1 by giving voice recorder - In such circumstance, Voice recorder, which is lodged on the next day is hit by Section 162 of the Cr.P.C.
PREVENTION OF CORRUPTION ACT, 1988 [C.A. NO. 49/1988] - Sections 20(1), 13(1)(d)(i) & 13(1)(d)(iii) - Proof of acceptance of illegal gratification - Presumption under Section 20(1) can be only after satisfactory proof of demand and acceptance has not touched the currency notes - Contention of prosecution that as the appellant opened dickey of the car, the notes were kept in car, also not forthcoming in the evidence of P.Ws. 1 & 2 - There is no consistence evidence whether P.Ws.1 or P.W.2 who kept the amount - Again, evidence of witnesses P.Ws.1 and 4 go to show that it was darkness around and when complainant and P.W.2 sat in the car, the accused person was not in car - Therefore, presumption raised under Section 20(1), held, not acceptable.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 65-B - Admissibility of electronic records - Voice recorder - Requirement of Certificate - Relaxation - CDs and electronic equipments used for generating such material are produced from possession of the prosecution which was well within the knowledge of the Investigating Officer - CDs were not sent for testing of voice - So far as voice is concerned, it is not exactly the transcription that has to be in respect of entrustment mahazar, which is clear from the evidence of Investigating Officer - It goes to show that pick and chose method was followed by the Investigation Officer - looking to said material on record, relaxation of condition under Section 65-B(4) of the Evidence Act does not arise.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 101 & Prevention of Corruption Act, 1988, Section 13(1)(d)(i) & 13(1)(d)(ii) - Burden of proof of acceptance of illegal gratification - Held, It is not on the accused person - He need not prove his defence beyond reasonable doubt - Preponderance of probability is that the accused-appellant has to make out case about his defence that the money/notes was kept in the dash board of the car, without his knowledge - As per the prosecution case itself, it was darkness around and that the appellant was not in the car - That he has not touched the amount - Said material on record go to show that prosecution has failed to prove its case beyond all reasonable doubt.
1. This appeal is preferred by the appellant-accused under Section 374(2) of Cr.P.C. being aggrieved by the judgment and order of conviction and sentence dated 24.4.2017 passed by the III Additional Sessions and Special Judge, Mysuru, in Spl. Case No.106/2012 whereby the appellant-accused has been convicted for the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act. The appellant preferred the above appeal challenging the legality and correctness of the judgment and order of conviction on the grounds as mentioned at ground Nos.15 to 24 of the appeal memorandum.
2. Brief facts of the prosecution case as per the averments made in the complaint (Ex.P.2) dated 21.09.2011 is that the complainant one Muniraju R. (P.W.1) has stated that he is working as social worker staying at Satellite town, Kengeri, Bengaluru. The land property bearing Sy. No.17-P measuring 3 acres of Ilavala Hobli, Madagalli village was granted to one Guruvaiah s/o. late Rangaiah. After demise of the said Guruvaiah, his son Ramesh and daughter-in-law Muththamma executed agreement of sale in favour of the complainant on 28.3.2007 and in that connection, the complainant had paid Rs.15.00 lakh to them. The said Ramesh, Muththamma and others also executed general power of attorney in favour of the complainant for mutation of the said landed property and for other purposes. In the year 2007, the complainant gave an application to the office of the Tahsildar, Mysuru, to get the mutation in favour of Ramesh, Muththamma and others. The mutation was not done since 2007 and they were asking repeatedly for the mutation of their names and last one month, the appellant herein-Raghumurthy, who is working as Shirastedar in the office of Tahsildar, Mysuru, has taken the charge of said file. The complainant met the said Raghumurthy through one Venkataramu and enquired about mutation of the property. At that time, they were asked to come on the next day and also told that as they simply come and request to mutate their names, because of that reason, their file is lying since 2007. It is alleged by the complainant that the appellant-accused said that if they are ready to listen to him, within one month, he will get the mutation done and they have to pay Rs.5.00 lakh towards expenses and insisted them to pay the bribe amount. Venkataramu was calling the complainant over phone repeatedly since from one week and informed about the demand of Rs.5.00 lakh bribe amount made by the accused-Raghumurthy. Then it was told to Venkataramu that they cannot pay such amount and asked him to go and lodge a complaint to Lokayuktha police. Venkataramu said the complainant that it is better to lodge a complaint by him. Because of that reason, on 20.9.2011, the complainant came to the office of Lokayuktha along with Venkataramu and he took digital voice recorder from the Lokayuktha office. Venkataramu phoned by his mobile No.9342117826 to the mobile number of appellant-Raghumurthy i.e.9448530055. At that time, the appellant told that he is in meeting of the D.C. office and asked him to call at 7.30 p.m. and he will tell at which place they should meet. On the previous day at 6.15 p.m., the accused himself gave a missed call to Venkataramu, who immediately called the accused over mobile phone. At that time, the accused asked Venkataramu to come to Shanthisagar Hotel, Kuvempunagar at 7.30 p.m. Accordingly, the complainant and Venkataramu went to Shanthi Sagar Hotel and were waiting for the appellant-accused. The appellant-accused told them that within a minute, he will come and accordingly, he came in a car giving an indication asking them to come. The complainant and Venkataramu went nearby the car. The appellant opened the door of the car and took them inside his car. He brought the file belonging to the said landed property and read some of the documents and insisted for the bribe amount of Rs.5.00 lakh. The complainant told that it was not possible to pay the
