Karnataka High Court
State Of Karnataka vs Sri. C. J. Prabhakar on 4 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.1828/2019
BETWEEN :
State of Karnataka
Represented by Police Inspector
Karnataka Lokayuktha
Bengaluru - 560 001.
... Appellant
(By Sri Venkatesh S Arabatti, Advocate)
AND :
1. Sri C J Prabhakar
Son of Sri Jogi Gowda
Aged about 34 years
Sub Registrar
Rajarajeshwarinagara - 560 098.
Resident of No.8, 18th 'A' Cross
Digitally signed by
Arogya Nilaya, Hebbala, Kempapura
ASHPAK KASHIMSA
MALAGALADINNI
Location: High Court
Bengaluru - 560 024.
of Karnataka,
Dharwad Bench,
Dharwad
2. Sri G Chandrappa @ Chandregowda
Son of Sri Javaregowda
Aged about 51 years
2
Thimmasandra Village
Lalaghatta Post, Channapattana Taluk
Ramanagara District - 562 159.
3. Sri Nataraj
Son of Sri Narasimhaiah
Aged about 40 years
Second Division Assistant
Office of the Sub Registrar
Rajarajeshwarinagara
Bengaluru - 560 098.
Resident of No.347/1, 2nd Main
Jagajyothinagara Layout, Mariyappanapalya
Bengaluru - 560 021.
... Respondents
(By Sri P P Hegde, Senior Counsel for
Sri Sangamesh R B, Advocate for R1
V/o dtd. 27.02.2025, appeal against R2 abated.
Sri K R Srinivasa, Advocate for R3)
This Appeal is filed under Section378(1) and (3)
Cr.P.C praying to grant leave to file the appeal against
the judgment and order of acquittal by the judgment
dated 09.02.20218 passed by the court of the LXXVII
Additional City Civil and Sessions Judge, (PCA) Bengaluru
in Spl. C.C.No.134/2011 and etc.,
This Criminal appeal having been heard and reserved
for Judgment, this day, Shivashankar Amarannavar J,
delivered the following;
3
JUDGMENT
1. This appeal is filed by the Karnataka
Lokayukta Police, Bengaluru challenging the judgment
of acquittal dated 09.02.2018 passed in
Spl.C.No.134/2011 by the LXXVIII Additional City Civil
and Sessions Judge and Special Judge(PCA),
Bengaluru, whereunder respondents have been
acquitted for offences punishable under Sections 7, 8,
13(1)(d) read with 13 (2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “P.C.
Act” for brevity) and Sections 201 and 120-B of Indian
Penal Code (hereinafter referred to as “IPC” for
brevity).
2. The brief facts of prosecution case are as
under:
The complainant – K.M. Manjunath (P.W.1) has
given a complaint on 30.12.2010 before the Lokayukta
4Police stating that he is working as Registration
Assistant with an advocate in Sri Vinayaka Enterprises
and is assisting parties in registering documents and on
23.12.2010, Rafiq Ahmed came to him and has
informed that a sale deed of property purchased by his
father-in-law -Chand Pasha is to be registered and on
the same day, the sale deed was registered in the
office of Sub-Registrar, Raja Rajeshwarinagara,
Bengaluru. At that time, accused No.1 who was the
Sub-Registrar, called the complainant and asked him to
pay Rs.30,000/-. The complainant informed Rafiq
Ahmed about the demand by accused No.1, but Rafiq
Ahmed was not ready to give the amount. Accused
No.1 asked complainant to somehow arrange the
amount and told that if amount is not paid, he knows
what to do when he again brings documents for
registration in future. Thereafter, on 27.12.2010, when
5the complainant met accused No.1, he again demanded
amount and complainant by promising to pay the
amount, took the sale deed and gave it to Rafiq
Ahmed. Thereafter, accused No.1 contacted
complainant over phone and demanded the bribe
amount. Again on 29.12.2010, accused No.1 called
complainant and demanded bribe and conversation has
been recorded and on the same day evening accused
No.2 – Chandrappa who is a private person assisting in
the office of the Sub-Registrar has called the
complainant and asked him to pay amount and this
conversation is also recorded. With these averments,
the complainant has given complaint to the Lokayukta
Police Inspector along with C.D. containing recorded
conversation and after registering complaint in Crime
No.70/2010, the Lokayuktha Police have sent FIR to
the Court. Lokayukta Police by securing two panchas
6conducted pre-trap proceedings and on the same day
made arrangements to trap the accused. The trap was
laid, trap procedure has been followed and trap
mahazar was drawn. After completion of investigation
and after obtaining sanction to prosecute accused
Nos.1 and 3 from the competent authority, charge
sheet has been filed against accused Nos.1 to 3 for
offences punishable under Sections 7, 8, 13(1)(d) read
with 13 (2) of the P.C. Act and Sections 201 and 120 –
B of IPC.
3. The trial Court took cognizance against
accused persons for aforesaid offences. The trial Court
has framed charges for the aforesaid offences. In order
to prove charges, the prosecution has examined eleven
witnesses as P.W.1 to P.W.11, got marked documents
as Ex.P.1 to Ex.P. 35 and material objects as M.O. 1 to
M.O. 24. Ex.D1 and Ex.D2 are two photos got marked
7
by defence. The statements of accused persons have
been recorded under Section 313 of Cr.P.C. Accused
No.1 has given his statement in writing and produced
documents at the time of recording his statement
under Section 313 of Cr.P.C. The learned Special Judge
after hearing arguments on both sides has formulated
points for consideration and acquitted respondents –
accused Nos.1 to 3 by the impugned judgment. The
said judgment has been challenged by the Karnataka
Lokayukta Police, Bengaluru in this appeal.
4. Heard learned counsel for the appellant,
learned Senior Counsel for respondent No.1 and
learned counsel for respondent No.3. Respondent No.2
-accused No.2 who was private person has been
reported to be dead and the appeal against him came
to be dismissed as abated.
8
5. Learned counsel for the appellant would
contend that the impugned order is opposed to law and
is contrary to the material evidence on record. Learned
trial Judge has erred in coming to the conclusion that
since the sale deed was already given to P.W.1, there
was no work pending with accused No.1. The learned
Judge has failed to appreciate that if the illegal
gratification is relatable to any official work, pending or
otherwise the offence is attracted. On that point he
placed reliance on the decision of the Hon’ble Apex
Court in the case of Sita Soren Vs Union of India1.
The learned trial Judge has erred in coming to the
conclusion that the demand for the bribe amount has
not been proved by the prosecution on ground that the
mobile number stated in the complaint -Ex.P1 does not
belong to accused No.1. Learned trial Court has erred
1
Reported in (2024) 5 SCC 629
9
in rejecting transcriptions (Ex.P12 and Ex.P.13) of C.D.
on the ground that same are not sent for expert
opinion and the source of recording C.D. itself is not
properly explained and established. He further
contended that learned trial Judge has erred in relying
on the judgment of Hon’ble Apex Court in the case of
Anwar P.V. Vs P.K Basheer and Others2, delivered
on 18.09.2014 which has been rendered after filing the
charge sheet in this case. As on the date of submission
of the charge sheet, the judgment of the Hon’ble Apex
Court in the case of State (N.C.T of Delhi) Vs Navjot
Sandhu3was applicable. The learned trial Court has
failed to appreciate that though demand of bribe
amount is proved by evidence of P.W.1, there is no
evidence of demand of bribe by accused Nos.1 and 2
on 27.12.2010 and 29.12.2010 by phone which is hair
2
Reported in (2014) 10 SCC 473
3
Reported in AIR 2005 SC 3820
10
splitting argument. The learned trial Judge has given
benefit of doubt stating that huge demand of
Rs.30,000/- for registration of single sale deed is
unbelievable. The learned trial Judge has failed to
appreciate the evidence of P.W.1 which is clear, cogent
and sufficient to prove the case of the prosecution.
Learned trial Judge has given much credence to non-
recovery of Rs.25,000/- of the tainted notes. The
learned trial Judge has erred giving benefit of the doubt
to the accused after watching video recorded in C.D –
M.O.19 on the ground that series doubts are raised
about the hand wash procedure. Learned Judge has
wrongly come to the conclusion that accused Nos.1 and
2 were not in possession of tainted currency notes and
demand for illegal gratification is not established.
6. The demand and acceptance of bribe has
been established by evidence of P.W.1 and P.W.3. The
11
trial Court ought to have considered the presumption
under Section 20 of the P.C Act. On that point he
placed reliance on the decision of the Hon’ble Apex
Court in the case of M. Narsingh Rao Vs State of
Andra Pradesh4. He contends that statements of
P.W.1 and P.W.2 have been recorded under Section
164 of Cr.P.C and they both admit giving statement
before the Magistrate. Learned trial Judge has failed to
take into consideration said statements of P.W.1 and
P.W.2 recorded under Section 164 of Cr.P.C which are
at Ex.P.4 and Ex.P.10 respectively. Even though, P.W.
2 has turned hostile, the statement given by him before
the Magistrate under Section 164 of Cr.P.C as per
Ex.P10, requires to be considered. On that point he
placed reliance on the decision of the Hon’ble Apex
Count in the case of Vinod Kumar V State of
4
Reported in (2001) 1 SCC 691 / AIR 2001 SC 318
12
Punjab5. He contended that considering the entire
evidence on record, the prosecution has proved the
demand and acceptance of bribe by accused persons.
Therefore, the judgment passed by the trial Court is
perverse and the Appellate Court has power to reverse
the judgment of the trial Court. On that point he placed
reliance on the decision of the Hon’ble Apex Court in
the case of Chandrappa Vs State of Karnataka6. He
also placed reliance on the decision of the Hon’ble Apex
Court in the case of Hazari Lal Vs State (Delhi
Administration)7 on the point that evidence of Police
officer who laid trap can be accepted by the Court in
corroboration. He further submits that without
considering all these aspects learned Special Judge has
erred in acquitting respondents- accused Nos. 1 to 3.
5
Reported in (2015) 3 SCC 220
6
Reported in (2007) 4 SCC 415
7
Reported in AIR 1980 SC 873
13
On these grounds he prays to set aside the impugned
judgment and convict respondents -accused Nos. 1 to 3
for the offences charged against them.
7. Learned Senior counsel for respondent No.1
would contend that the trial Court gave reasons and
findings and they are not perverse. He further submits
that reasons and findings recorded by the trial Court
are correct and the Appellate Court cannot interfere in
the appeal filed challenging the judgment of acquittal.
He further argued that certificate under Section 65-B of
Indian Evidence Act regarding the C.D. M.O.6 and
M.O.16 are not produced and therefore contents of
M.O.6 and M.O.16 are not authentic. The contents
reduced in writing as per Ex.P12 and Ex.P.13 are not
scientific. Placing reliance on the decision of the Hon’ble
Apex Count in the case of Arjun Panditrao Khotkar
14
Vs Kailash Kushanrao Gorantyal and Other8
learned Senior counsel submits that the production of
certificate under Section 65-B of the Indian Evidence
Act is mandatory as secondary evidences has been
produced in the form of C.D. – M.O.6 and M.O. 16. The
prosecution has to either produce original or if
secondary evidence is produced they have to furnish
certificate under Section 65-B of Indian Evidence Act.
He further contends that the work of the complainant
i.e., registration of the sale deed and handing over of
the original sale deed was over prior to the complaint
and therefore, no work was pending with accused
persons. Learned Senior counsel placing reliance on
the decision of the Hon’ble Apex Court in the case of
Roopawanti Vs State of Haryana and Others9
would contend that in order to exercise powers to
8
Reported in (2020) 7 SCC
9
Reported in 2023 SCC OnLine SC 179
15
reverse an acquittal, the order of trial Court is to be not
only erroneous but also perverse and unreasonable. He
further submits that documents produced along with
statement recorded under Section 313 of Cr.P.C will
itself clearly establish enmity of complainant-P.W.1
with accused No.1 as accused No. 1 has delayed the
registration of documents of the complainant -P.W.1
for want of material document i.e., sketch. He further
submits that accused No.1 has been exonerated in
departmental enquiry, whereunder charges are similar.
On these grounds, he prays for dismissal of the appeal.
8. Learned counsel for respondent No.3 would
contend that there is no recovery of any tainted
currency or hand wash of accused No.3. Accused No.3
had applied for half day casual leave and he was not
present at the time of trap in the office. P.W.11 has not
investigated by going to the house of accused No.3 for
16
recovery of Rs.25,000/- of bribe amount alleged to
have been carried by accused No.3. Accused No.3 has
also been exonerated in departmental enquiry wherein
charges are similar. He submits that trial Judge has
rightly acquitted accused persons by well reasoned
judgment and there are no grounds for interfering with
the judgment of the trial Court. On these grounds, he
prays for dismissal of the appeal.
9. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
Considering the grounds urged, the point that arises for my
consideration is:
“Whether learned trial Judge has erred
in passing the judgment of acquittal of
respondents -accused Nos.1 to 3 for
offences punishable under Sections 7, 8,
13(1)(d) read with 13 (2) of the P.C. Act and
Sections 201 and 120-B of IPC?”
17
10. My answer to the above point is in the Negative
for the following reasons.
P.W.1 was working as Assistant to the Deed Writer and
getting documents registered in the office of Sub-Registrar,
Rajarajeshwari Nagar, Bengaluru. P.W.1 has registered
several documents in the office of Sub-Registrar,
Rajarajeshwari Nagar, Bengaluru. It is the evidence of
accused persons that there was enmity between P.W.1 and
accused No. 1 as sale deed got registered by P.W.1
pertaining to his client was kept pending for want of sketch
and accused No. 1 had issued notices. Said document got
registered by P.W.1 dated 06.08.2007 registered on
13.08.2007 has been produced along with the statement of
accused No. 1 while recording his statement under Section
313 of Cr.P.C. Said notices issued by accused No. 1 dated
13.08.2010 and 09.11.2010 are also produced at that time.
On perusal of the said sale deed there is signature of P.W.1
as a witness to the sale deed. As there is delay in releasing
18
the said sale deed for more than 3 years, P.W.1 who was
angry against accused No. 1 – Sub-Registrar, insisted the
Sub-Registrar to release the document even in the absence
of production of sketch. P.W.1 in his cross-examination has
admitted that document placed by him was not registered
for want of sketch and that was even before accused No.1
assuming charge. Said two notices dated 13.08.2010 and
09.10.2010 indicate that the said document produced for
registration by P.W.1 was kept pending for want of sketch
and it was about a month prior to the alleged complaint.
Considering the said aspect the accused have raised a
probable defence that there was grudge by P.W.1 against
accused No. 1. It is the contention of the accused persons
that as there was grudge P.W.1 has filed a false complaint
against the accused. In the light of the said defence,
evidence of the prosecution requires careful consideration in
order to ascertain whether the prosecution has proved its
case beyond all reasonable doubts and whether the learned
19
trial Judge has rightly appreciated the evidence on record or
not.
11. P.W.1 had presented a sale deed of relative of
P.W.2 for registration and it was registered on 23.12.2010.
As per Ex.P.1 – complaint, after registration, accused No. 1
called P.W.1 and asked him to pay Rs.30,000/- and again
on 24.12.2010 and 27.12.2010 when P.W.1 went to receive
the registered document, accused No. 1 demanded amount
and even he made phone call to P.W.1 demanding bribe.
P.W.1 has stated in his evidence and also in the complaint –
Ex.P.1 that he received the document on 27.12.2010. P.W.2
– Rafiq Amhad whose relative has registered the document
has stated that on the date of registration itself, i.e., on
23.12.2010 C.W.5 has received the registered sale deed.
Copy of the certificate obtained under RTI Act has been
produced by accused No. 1 at the time of recording his
statement under Section 313 of Cr.P.C. to show that C.W.5
– Chand Pasha has received the original registered
20
document on 23.12.2010 and he has also certified that no
papers pertaining to the said document were retained by
the Sub-Registrar. As the registered document was already
given to C.W.5, there was nothing more to be done by
accused No. 1 with regard to said sale deed of C.W.5 –
Chand Pasha. There is no allegation either in the complaint
or in the evidence that at the time of registration of sale
deed of C.W.5, accused No. 1 demanded bribe or had
refused registration without payment of bribe. As per
P.W.1, after registration of the document, the Sub-
Registrar, i.e., accused No. 1 had called him and asked him
to pay bribe. P.W.1 in his evidence and also in Ex.P.1 –
complaint has stated that document was given to P.W.2 by
accused No.1 and at that time accused demanded the
amount. Considering the same, as on 30.12.2010 – the
date of complaint, registered document was already given
and there was no work pending with accused No. 1 – Sub-
Registrar with regard to the said document. The scope of
21
demanding bribe would arise if there is possibility of doing
any official favour to the complainant. In respect of
document of C.W.5, there is no possibility of accused Nos. 1
to 3 doing any official favour to P.W.2 or C.W.5 as the work
was already done. Therefore, there is no scope for the
accused to demand bribe. Therefore, the prosecution has
failed to show that there was some work of complainant or
his customer pending at the time of lodging the complaint
and that was to be attended by the accused. The possibility
of the accused doing an official favour to the complainant as
on that day is also not made out by the prosecution.
12. Learned counsel for appellant placing reliance
on the decision of the Hon’ble Apex Court in the case of
Sita Soren (supra) has contended that pendency of work is
not the criteria and in the said decision it is held as under:
“122. Under Section 7 of the PC Act, the mere
“obtaining”, “accepting” or “attempting” to obtain an
undue advantage with the intention to act or forbear
22from acting in a certain way is sufficient to complete
the offence. It is not necessary that the act for which
the bribe is given be actually performed. The First
Explanation to the provision-further strengthens such
an interpretation when it expressly states that the
“obtaining, accepting, or attempting” to obtain an
undue advantage shall itself constitute an offence
even if the performance of a public duty by a public
servant has not been improper. Therefore, the
offence of a public servant being bribed is pegged to
receiving or agreeing to receive the undue advantage
and not the actual performance of the act for which
the undue advantage is obtained.
123. It is trite law that illustrations appended
to a section are of value and relevance in construing
the text of a statutory provision and they should not
be readily rejected as repugnant to the section. The
illustration to the First Explanation aids us in
construing the provision to mean that the offence of
bribery crystallises on the exchange of the bribe and
does not require the actual performance of the act. It
provides a situation where “a public servant, S asks
a person, P to give him an amount of five thousand
rupees to process his routine ration card application
on time. S is guilty of an offence under this section.”
23
It is clear that regardless of whether S actually
processes the ration card application on time, the
offence of bribery is made out. Similarly, in the
formulation of a legislator accepting a bribe, it does
not matter whether she votes in the agreed direction
or votes at all. At the point in time when she accepts
the bribe, the offence of bribery is complete.
124. Even prior to the amendment to the PC
Act in 2017, Section 7 expressly delinked the offence
of bribery from the actual performance of the act for
which the undue advantage is received. The
provision reads as follows:
“7. Public servant taking
gratification other than legal
remuneration in respect of an official
act.- Whoever, being, or expecting to be a
public servant, accepts or obtains or agrees
to accept or attempts to obtain from any
person, for himself or for any other person,
any gratification whatever, other than legal
remuneration, as a motive or reward for
doing or forbearing to do any official act or
for showing or forbearing to show, in the
exercise of his official functions, favour or
disfavour to any person or for rendering or
attempting to render any service or disservice
24to any person, with the Central Government
or any State Government or Parliament or
the Legislature of any State or with any local
authority, corporation or government
company referred to in clause (c) of Section
2, or with any public servant, whether named
or otherwise, shall be punishable with
imprisonment which shall be not less than six
months but which may extend to seven years
and shall also be liable to fine.
Explanations.- (a)-(c) * * *
(d) “A motive or reward for doing”. A
person who receives a gratification as a motive
or reward for doing what he does not intend or
is not in a position to do, or has not done,
comes within this expression.” (emphasis
supplied)
125. The unamended text of Section 7 of the
PC Act also indicates that the act of “accepting”,
“obtaining”, “agreeing to accept” or “agreeing to
obtain” illegal gratification is a sufficient condition.
The act for which the bribe is given does not need to
be actually performed. This was further clarified by
Explanation (27) to the provision. In explaining the
phrase “a motive or reward for doing”, it was made
clear that the person receiving the gratification does
25
not need to intend to or be in a position to do or not
do the act or omission for which the motive/reward
is received.
126. XXX XXX XXX
127. Recently, in Neeraj Dutta v. State (NCT
of Delhi) a Constitution Bench listed out the
constituent elements of the offence of bribery under
Section 7 of the PC Act (as it stood before the
amendment in 2017). B.V. Nagarathna, J.
formulated the elements to constitute the offence:
(SCC p. 749, para 5)
“5. The following are the ingredients of
Section 7 of the Act:
(i) the accused must be a public
servant or expecting to be a public servant:
(il) he should accept or obtain or
agrees to accept or attempts to obtain from
any person;
(iii) for himself or for any other person;
(iv) any gratification other than legal
remuneration; and
(v) as a motive or reward for doing or
forbearing to do any official act or to show
any favour or disfavour.”
26
Consequently, the actual “doing or forbearing to do”
the official act is not a constituent of the offence. All
that is required is that the illegal gratification should
be obtained as a “motive or reward” for such an
action or omission whether it is actually carried out
or not is irrelevant.”
13. In the said case it is held that what is required is
that the illegal gratification should be obtained as a motive
or reward for such an action or omission and whether it is
actually carried out or not is irrelevant. In the said case
bribe was obtained and in furtherance of the same, the
promised act was not done. In the case on hand the
demand of bribe is not regarding any act to be done by the
accused. Considering the said aspect the said decision is
not applicable to the facts of the case on hand. Even if the
alleged demand of bribe is not met, the accused cannot do
anything with regard to registration of sale deed of C.W.5
as the said work was already over.
27
14. In Ex.P.1 – complaint it is stated that P.W.1
informed about demand of bribe by accused No. 2 to P.W.2,
but, he was not ready to pay and thereafter, on
27.12.2010, when P.W.1 went with P.W.2 to take the
registered document, accused No. 1 demanded bribe of
Rs.30,000/-. As per Ex.P.1 – complaint in the evening of
27.12.2010 accused No. 1 called P.W.1 through his mobile
and demanded bribe amount and again on 29.12.2010
accused No. 1 and even accused No. 2 called P.W.1 on
mobile and demanded bribe amount and that has been
recorded. P.W.2 has not stated anything about such
demand made by accused No. 1 in his presence. P.W.1 in
his evidence has not stated about accused No. 2 calling him
and demanding bribe amount on 29.12.2010. As per the
evidence of P.W.1, he has received phone call on
29.12.2010 from accused No. 1 and on the same day he
lodged the complaint. P.W.1 has stated that he has
received phone call from mobile phone of accused No. 1
28
demanding amount and he has recorded the said
conversation in the voice recorder which was given to him
by P.W.11. P.W.1 had met P.W.11 on or before 29.12.2010,
taken the voice recorder, then recorded the conversation
dated 29.12.2010 and then converted it into CD. P.W.1 has
stated that contents of the voice recorder have been
transmitted on a sheet of paper by the Lokayuktha Police
staff. However, P.W.11 has stated that P.W.1, for the first
time, appeared before him on 30.12.2010, i.e., on the date
of complaint. P.W.11 has denied that P.W.1 met him on
27.12.2010 and 29.12.2010. Therefore, the evidence of
P.W.1 that he met the Lokayuktha Police on 27.12.2010
and 29.12.2010 is not corroborated by evidence of P.W.11.
15. P.W.11 has stated that P.W.1 had brought the
recorded CD and that was played at the time of pre-trap
mahazar – Ex.P.2. But, P.W.1 in his cross-examination has
stated that in the Lokayuktha office the conversation was
transmitted into CD. What was the instrument with which
29
P.W.1 recorded his conversation with the accused, when,
where and how he recorded the conversation and when he
transmitted the conversation recorded to CD is not made
clear. P.W.11 has admitted that he has not seized the
mobile to which accused Nos. 1 and 2 had made calls and
spoke with P.W.1 and in which the conversation of accused
was recorded. Even the voice recorder stated by the
complainant is not produced before the trial Court. Ex.P.12
and Ex.P.13 are transcriptions from CD produced by P.W.1.
What was the source of recording to CD itself is not
explained and established. Therefore, the transcriptions
which are at Ex.P.12 and Ex.P.13 from CD would not help
the prosecution to prove the alleged demand of bribe by the
accused.
16. The mobile number of accused No. 2 with which
he made call to P.W.1 has not been mentioned in Ex.P.1 –
complaint. The mobile number of accused No. 1 which is
stated to be used to make a phone call to P.W.1 has been
30
mentioned in the complaint – Ex.P.1. The call details of the
said mobile is at Ex.P.31. Said mobile number mentioned in
Ex.P.1 is in the name of one Nagaraj. P.W.11 has not
obtained the details of Nagaraj in his investigation. Said
mobile which is alleged to have been used by accused No.
1 to speak with P.W.1 is not in the name of accused No. 1.
There is no evidence to link this Nagaraj with accused No.
1. The report given by the District Registrar, as per Ex.P.27,
that accused No. 1 was using the said mobile number has
no basis and author of the said report has not been
examined. The mobile number which is mentioned in Ex.P.1
from which P.W.1 has received call demanding bribe is not
the mobile of accused No. 1 and it is not standing in his
name. The alleged voice of accused No.1 contained in the
CD produced by P.W.1 has not been sent for expert’s
opinion and the same has been admitted by P.W.11.
17. The trial Court has observed that certificate
under Section 65-B of the Indian Evidence Act has not been
31
produced with regard to the CDs which are at M.O.6 and
M.O.16. The trial Court relying on the decision of the
Hon’ble Apex Court in the case of Anwar P.V. Vs. P.K.
Basheer and others reported in 2015 (1) SCC (Cri) 24
has held that CDs produced are secondary evidence of
electronic records and as no certificate under Section 65-B
of the Indian Evidence Act has been produced, the contents
of the said CD cannot be admitted in evidence. Learned
counsel for respondent placing reliance on the decision of
the Hon’ble Apex Court in the case of Arjun Panditrao
(supra) contends that certificate under Section 65-B of the
Indian Evidence Act is mandatory to admit secondary
evidence of electronic evidence. Learned counsel for
appellant would contend that the decision in the case of
Anwar P.V. and Arjun Panditrao (supra) are subsequent
decisions and the decision which was prevailing as on the
date of charge sheet was in the case of Navjot Sandhu
(supra) and therefore, those decisions cannot be
32
applied retrospectively. The Hon’ble Apex Court has
interpreted Section 65-B of Indian Evidence Act in the
said decisions and has not laid down new law. Section
65-B of the Indian Evidence Act was in force as on the
date of filing of charge sheet. The interpretation of the
said provision subsequently by the Hon’ble Apex Court
cannot be said to be prospective. The CD produced is
said to contain the conversation copied in it from a
device i.e., voice recorder or Pen Spy Camera and the
primary evidence would be voice recorder or Pen Spy
Camera. The voice recorder or Pen Spy Camera can
easily be produced as primary evidence. In the case of
Navjot Sandhu (supra) the secondary evidence which
was produced was call details copied from server which
cannot be easily produced. In the case on hand the
voice recorder or Pen Spy Camera can be easily
produced. Even if the CD is produced, it has to be
33
accompanied by certificate as required under Section
65-B of Indian Evidence Act and the said certificate has
not been produced by the prosecution.
18. In the case on hand the bait amount is
Rs.30,000/-. As per Ex.P.2 – pre trap mahazar said bait
amount was kept in the pant pocket of P.W.1 with an
instruction to give it to the accused on demand by the
accused as a whole, i.e., in the entirety. As per the
evidence of P.W.1 he gave Rs.25,000/- initially to
accused No. 2 and subsequently, he gave another sum
of Rs.5,000/- to accused No. 2. At what point of time
P.W.1 has bifurcated the bait amount of Rs.30,000/-
into Rs.25,000/- and Rs.5,000/- has not been made
clear. P.W.11 who has recorded the statement of P.W.1
has not asked him regarding the same. Therefore,
P.W.1 has handled the bait amount applied with
34
phenolphthalein powder prior to he handing it over to
the accused persons.
19. P.W.2 came out in between from the
chamber of accused No. 1. It is suggested to the
prosecution witnesses that P.W.1 sent Rs.25,000/- with
P.W.2 and he came out of the chamber of accused
No.1. Said amount of Rs.25,000/- has not been
recovered. It is alleged that accused No. 3 took
Rs.25,000/- and he was not available in the office and
P.W.11 made search, but, he could not trace accused
No. 3. As per the evidence of P.W.1 he gave cash of
Rs.25,000/- to accused No. 2 as instructed by accused
No. 1 and again accused No. 2 demanded Rs.5,000/-
and P.W.1 gave him Rs.5,000/-. After receiving cash of
Rs.30,000/- accused No. 2 went out of the office of
accused No. 1 and accused No. 3 entered inside the
chamber of accused No.1 and went away. The
35
evidence of P.W.1 does not indicate that Rs.25,000/-
has been handed over by accused No.2 to accused No.
3. The recovered amount of Rs.5,000/- was also kept
on a chair along with a kerchief and not from the
possession of accused No. 2.
20. The trial Court, on perusal of video
recordings in C.D. – M.O. 19, has observed that at the
time of raid when the right hand fingers of accused
No.2 were washed in the solution, one of the trap team
member has put his index finger in the solution and
right hand wash solution turned into pink colour and
there is no drastic change in the left hand wash
solution. As per Ex.P.3 – trap mahazar accused No.2
has counted the money given by P.W.1 with both
hands. If that is so, then even the left hand wash
solution of accused No. 2 should have turned into pink
colour. Considering the said aspect the learned trial
36
Judge has rightly doubted about the genuineness of the
said hand wash procedure followed in the trap
proceedings. Considering the said aspect, recovery of
tainted notes from the accused has not been proved
and the same has been rightly observed by the trial
Court. Considering the said aspect, the demand and
acceptance of bribe has not been established beyond
reasonable doubt. Therefore, presumption under
Section 20 of the P.C. Act cannot be drawn. Even the
statements of P.W.1 and P.W.2 recorded under Section
164 of Cr.P.C are not of much help to the prosecution
as the evidence of P.W.1 and other witnesses is
contradictory, more so, allegation of enmity and grudge
has been made against P.W.1 as noted supra.
21. In the case of Chandrappa (supra), the
Hon’ble Apex Court has held that in case of acquittal
there is double presumption in favour of the accused.
37
The appellant has failed to make out a case that the
findings of trial Court are perverse and the evidence
has not been appreciated properly.
22. In the case of Roopawanti (supra), the
Hon’ble Apex Court has held as under:
“9. Further, in the case of Suman Chandra v. Central
Bureau of Investigation wherein the acquittal of the
accused was challenged, this court held that while
exercising its powers to reverse an acquittal, the
order of the trial court must not only be erroneous,
but also perverse and unreasonable. The relevant
paragraph of the judgment is being extracted herein:
“It is well settled law that reversal of acquittal
is permissible only if the view of the Trial Court
is not only erroneous but also unreasonable
and perverse. In our considered opinion, the
view taken by the Trial Court was a possible
view, which was neither perverse nor
unreasonable, and in the facts and
circumstances of the present case, ought not
to have been reversed or interfered with by the
High Court.”
38
10. Similarly in the case of Mrinal Das v. The State
of Tripura, this Court held that interference in a
judgment of acquittal can only be made if the
judgment is “clearly unreasonable” and there are
“compelling and substantial reasons” for reversing
the acquittal. The relevant paragraph of the
judgment is being reproduced herein:
“An order of acquittal is to be interfered with
only when there are “compelling and substantial
reasons”, for doing so. If the order is “clearly
unreasonable”, it is a compelling reason for
interference. When the trial has ignored the
evidence or misread the material evidence or has
ignored material documents like dying
declaration/report of ballistic experts etc., the
appellate court is competent to reverse the decision
of the trial Court depending on the materials placed.”
23. Only if the trial Court has ignored the
evidence or misread the material evidence or has
ignored the material documents, the appellate Court is
competent to reverse the decision of the trial Court.
39
The view taken by the trial Court is a possible view,
which is neither perverse nor unreasonable and in the
facts and circumstances of the present case there are
no grounds to reverse or interfere with the well
reasoned judgment of the trial Court. Considering all
these aspects, the appellant has not made out any
grounds for setting aside the judgment of acquittal
passed by the trial Court.
In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP/LRS
Ct.sm
[ad_1]
Source link