Sri. Giri Prasad Kulkarni vs State By Assistant Police ...
2023 Latest Caselaw 2917 Kant

                                 1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JUNE, 2023

                          BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

             CRIMINAL APPEAL NO.622 OF 2011
BETWEEN:

SRI. GIRI PRASAD KULKARNI
S/O V R KULKARNI
AGED ABOUT 41 YEARS
R/AT 103/A, 3RD MAIN,
CIL LAYOUT
SANJAYNAGAR,
BANGALORE                               ... APPELLANT

(BY SRI MURALIDHARAN R., ADVOCATE FOR
 SRI B S RAAM PRASAD & RAAM AND CO.)

AND:

STATE BY
ASSISTANT POLICE COMMISSIONER
J C NAGAR SUB DIVISION
BANGALORE
                                          ... RESPONDENT
(BY SRI B.J. ROHITH, H.C.G.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 28.5.11
PASSED BY THE SPECIAL JUDGE, UNDER PREVENTION OF
CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE
CITY, IN SPL.C.C.NO.37/05 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 12
OF PREVENTION OF CORRUPTION ACT, 1988 AND ETC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.05.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
                             2


                   JUDGMENT

This appeal is filed by the appellant under Section

374(2) of Cr.P.C. for setting aside the judgment of

conviction and sentence passed by the Special Judge,

Prevention of Corruption Act, Benglauru Urban District

(Hereinafter referred to as 'trial Court'), in Spl. C.C.

No.37/2005 dated 28.05.2011 for having convicted the

appellant under Section 12 of Prevention of Corruption Act

(PC Act) and the trial Court also sentenced the appellant-

accused to undergo one year rigorous imprisonment and to

pay fine of Rs.10,000/-, and in default of payment of fine,

he shall undergo further imprisonment of six months,

which is under challenge.

2. Heard the learned Counsel for the appellant and

Sri B.J. Rohith learned High Court Government Pleader for

respondent.

3. The rank of the parties before the trial Court is

retained for convenience.

4. The case of prosecution is that P.W.1-Harsha

Gupta, who is said to be Joint Commissioner of

Commercial Taxes, filed a written complaint as per Ex.P.1

on 01.08.2001 alleging that on the said date at about 6.00

p.m., he received telephone call from his wife that a

person by name Giri Prasad Kulkarni came to home at 5.30

p.m. and handed over a packet stating that it contained

some official papers and to be handed over to the

complainant and the said person is said to be told that he

would come and meet him (complainant) and he also said

to be left the mobile phone number as 9844065789. Then

his wife verified the same and had a doubt that the packet

contains some money. Then she found that the packet

contained 500 rupees notes bundle. Then she called him

through neighbour's phone and informed the same.

Immediately, he called the D.C.P. Sri Venugopal over

mobile phone, who informed that he would send

jurisdictional police inspector to his house. Then the

complainant went to his house at 7.30 p.m. By the time,

the police inspector was waiting and then, he gave

statement to him.

5. The complainant-P.W.1 further stated in the

complaint that one Giri Prasad Kulkarni had met him two

days back and asked for some favour, but for that, the

complainant told him that he can proceed as per the law

and it was not possible to do any favour. About two

months back, the Assistant Commissioner had detected a

case in which supply to Government department was made

by bogus dealers who had not obtained certificates from

the Sales Tax Department. Thus, notice was given to the

bogus dealers and asked to pay the taxes. Though the

taxes were paid, but was not paid the penalty and

therefore, the payments were not released. On this back

ground, the said Giri Kulkarni, approached him and he has

informed Giri Kulkarni that it could not be released until

the assessing sale tax officers given their approval.

Therefore, on this background, the said Kulkarni was trying

to bribe him. After registration of the complaint, the police

officer got registered the case against the accused and

issued FIR for the offences punishable under Section 12 of

the PC Act. Subsequently, the amount of Rs.50,000/- was

seized from the house of the de-facto complainant. After

obtaining anticipatory bail, the accused surrendered before

the police. In turn, after completion of investigation, the

Lokayuktha police filed charge sheet.

6. The trial Court secured the presence of the

accused and the charge was framed. The accused pleaded

not guilty and claimed to be tried.

7. In order to prove the case, the prosecution, in all,

has examined seven witnesses as per P.Ws.1 to 7 and

marked 20 documents as per Exs.P.1 to P.20 and two

material objects as per M.O.1 and 2 were marked. After

closing the evidence of the prosecution witnesses, the

statement under Section 313 of Cr.P.C. was recorded. The

case of accused is one of total denial, and not entered any

defence. After hearing the arguments, the trial Court

found the accused guilty and convicted and sentenced to

undergo imprisonment and to pay fine, as stated above.

8. The learned counsel for the appellant has

seriously contended that the judgment of the trial Court

convicting the appellant is erroneous, and the evidence of

prosecution is insufficient. P.W.2, who is the wife of P.W.1,

received the bundle containing money from the accused,

but she has not mentioned about this in her evidence. The

learned counsel further submitted that, in the complaint, it

is stated that the accused left a slip containing cell phone

number and the same is not produced and marked. The

complainant was aware of the commission of the offence

and he has tried to call the accused by phone, but not

lifted the phone. There are no call records seized by the

police to show that the accused contacted the complainant

in the office frequently. Absolutely, there is no connecting

evidence in the case. The slip said to be left by the

accused has been taken out by P.W.2 but she has stated

that it was misplaced. The investigation officer came to

the house and obtained the slip, but the same was

suppressed. Therefore, when the slip and phone number

were not placed before the Court, the question of

convicting the accused does not arise. Therefore, the

conviction of the appellant-accused is not sustainable.

9. The learned counsel for the appellant further

contended that the burden of proof was wrongly placed.

The person who compelled to bribe may be a victim, but

not an accused. The complainant has withheld the

payment receivable by the accused. Therefore, the

chances of making demand by the complainant was not

ruled out. It is further contended that the accused said

to be stayed in the house of the complainant. When

P.W.2 went to neighbouring house for phone call, at that

time, the accused was present, and at the second time, he

was not present. P.W.2 was unable to identify the accused

in the first stage, subsequently, the accused was shown to

her and then she has stated as 'seen him'. Therefore, the

identification of accused by P.W.2 is doubtful.

10. The learned counsel for the appellant-accused

further contended that P.W.4, a panch witness to the

seizure panchanama, is none other than the colleague and

the friend of P.W.1. The signature has been obtained by

him to prove the case. The independent witnesses have

not been examined. The police have failed to collect the

call records. When the independent witnesses are not

examined, the story of prosecution cannot be believable.

The complaint was filed against the accused as well as

partners, but charge sheet was filed only against one

person, the accused. The accused cannot be convicted

under the PC Act as he is not a public servant. Hence,

prayed for allowing the appeal.

11. Per contra, learned High Court Government

Pleader for respondent supported the judgment of

conviction and sentence passed by the Trial Court. The

learned High Court Government Pleader/Special Counsel

for respondent has contended that the accused approached

the complainant for releasing the amount for having

supplied the goods. The complainant was required to issue

certificate regarding the payment of taxes. Though the

accused was a private person, but the offence committed

by him falls under Section 12 of the P.C. Act, which refers

that any person, not being a public servant, trying to bribe

the public servant is punishable under Section 7 of the P.C.

Act. The evidence of the prosecution witnesses is reliable.

Though the independent witnesses were not examined, but

P.Ws.1 to 3 have given the evidence, which is sufficient to

prove the guilt of the accused. It is further contended that

the investigation officer has collected all the documents to

show the work pending with the complainant, which

belongs to the accused. Therefore, prayed for dismissing

the appeal.

13. Having heard the arguments of learned counsel

appearing for the parties, perused the records.

14. The points that arise for my consideration are:

(i) Whether the prosecution proves beyond reasonable doubt that, on 01.08.2001, the accused came to the house of P.W.1 for bribing the public servant and given Rs.50,000/- and he has abetted P.W.1 for commission of the offence Punishable Under Section 7 of P.C. Act, thereby he has committed the offence punishable under Section 12 of the P.C. Act ?

(ii) Whether the judgment of conviction and sentence passed by the Trial Court calls for interference ?

15. On perusal of the records, prior to appreciating

the evidence on record, it is worth to mention the evidence

added by the prosecution before the trial Court.

16. P.W.1 Harsha Gupta is the complainant. He has

deposed, in support of his complaint, that the accused said

to be running a firm in the name of 'M/s. Baltronix' and he

has supplied the electronic goods to the government

departments, through fake invoices and collected taxes

for supplying the goods. On filing of the complaint, the

investigation was done by the Assistant Commissioner,

Commercial Tax, Investigation Wing and sales tax dues

were recovered from accused and the case was

compounded. P.W.1 has further deposed that the

appellant-accused paid the tax, but certificate was not

issued to the accused as he had not paid the penalty. On

this back ground, the accused approached P.W.1 in the

office and he was informed that the Assessing Officer was

not in station and therefore, his work was not done. P.W.1

further deposed that on that back ground on the evening

his wife-P.W.2 called him though phone and informed him

that a person calling himself as Giriprasad Kulkarni came

and left a bundle stating that it was confidential document

to be handed over to her husband. Subsequently, his

wife-P.W.2 found that the bundle was containing Rs.500/-

of 100 currency notes. Immediately, she once again called

and informed him about the same and hence, he

telephoned to DCP and asked to send a police to his house.

P.W.1 also deposed that when he reached his house, the

jurisdictional police inspector was present in the home.

Then, P.W.1 lodged the complaint as per Ex.P.1. The

police officer also prepared panchanama and seized the

cash under panchanama as per Ex.P.2. P.W.1 has

identified Exs.P.1 and P.2 and also cash at M.O.1. He also

identified Exs.P.4 to 12 which are the documents

pertaining to the accused in respect of the tax matters.

17. P.W.2-Smt. Himani, wife of P.W.1 has deposed

that her husband and herself are residing at RMV Second

Stage. One day at about 4.30 p.m. when she was on

outside playing with her child, a person came in a white

Maruthi van and stopped the car in front of her house and

informed that he has carried some confidential papers to

be given to her husband. He handed over a packet which

was semi transparent, she was reluctant to accept it, but

he handed over and telling that he knew her husband and

he would come and meet her husband in the evening. He

got introduced himself as Mr. Kulkarni, she wanted to call

her husband, she went to neighbours house and

telephoned him, but he could not get her phone.

Therefore, once again she went to the neighbours house

and rang up to her husband and informed him about the

matter. By the time, the person who kept the packet on

the tea-poy had left the house. The said pocket contained

a small chit with his name and mobile number. She

further deposed that at 7.00 p.m. or 7.30 p.m., her

husband came to home, the police also came. She saw the

pocket which was containing currency notes. Then the

police opened the packet, which contained the bundle of

Rs.500 of 100 currency notes. The police recorded her

statement and she had identified the said cash as M.O.1

and the cover as M.O.2. She also stated that because of

long gap of five years, she cannot recall that person.

When the accused was shown to the witness who was

standing in the witness box, she identified as the said

person.

18. P.W.3 one S. Selvakumar, IAS officer and

colleague of P.W.1, has stated that on 1.8.2001, he came

to Bangalore to attend the official work. On that date,

P.W.1 asked him to come to his house at 8.00 pm. When

he went to the house, P.Ws.1 and 2 were present and they

informed that one Kulkarni came to the house and left the

bundle of cash He further deposed that the police opened

the bundle in their presence that was containing Rs.500/-

100 currency consisting of Rs.50,000/- The police seized

the same under panchanama as per Ex.P.2 and he has

identified M.O.1 and 2 -the cash as well as cover.

19. P.W.4 Shivashankar, the Deputy Commissioner,

who has stated that he was working as Assistant

Commissioner of Commercial Tax and at the relevant point

of time, P.W.1 was Joint Commissioner and in charge of

investigation. He deposed that the accused coming to the

office and contacting P.W.1 regarding KST tax matter. On

12.4.2001, the accused appeared before him and

submitted that he had supplied equipment for Rs.45.50

lakhs and he wanted to discharge the tax liability.

Accordingly, he has discharged his liability by giving two

pay orders for Rs.2,59,000/- and after compounding the

offence the accused required to pay the penalty of

Rs.25,937/-. P.W.4 further deposed that compounding the

offence was decided by the Joint Commissioner. He

further deposed that on 2.8.2001 he came to know that

the accused was trying to pay money to Joint

commissioner and the complaint was registered. He

further deposed that the accused admitted the lapses and

also discharged the liability and he has furnished the

documents as per Exs.P.4 to P.9.

20. P.W.5 A.Purushotham, has deposed that when

he was working as inspector in Sanjay Nagar police. On

1.8.2001, the DCP informed and instructed to go to the

house of P.W.1. At about 7.25 pm., he reached the house

of P.W.1 and after reaching the house, P.W.1 also came

there and told that the accused Giriprasad Kulkarni came

and placed one bundle of cash on his tea-poy to do

favourable work and he has given complaint as per Ex.P.1.

Then he has contacted ACP and they informed to receive

the money on the spot. Then he collected the panchas

Selvakumar P.W.3 and C.W.7 Yousuff and conducted spot

Mahazar. He has enquired previous crime number and

mentioned the crime No.402/2001 for the offence

punishable under section 12 of P.C. Act. and seized the

cash of Rs.50,000/- He has identified panchanama as per

Ex.P.2 and came to the police station along with

panchanama and registered a case in crime No.402/2001

and issued FIR as per Ex.P.13. He also identified M.O.No.1

- cash and M.O.No.2 - cover. Then he has handed over

investigation to ACP .

21. P.W.6 Marthurkar has deposed that when he

was ACP in J.C. Nagar Sub Division, he took up further

investigation and recorded the statement of

Mr.Selvakumar, Smt. Mani Harsha Gupta, Smt. Mary,

Smt.Uthara Mary, then recorded the further statement of

Harshgupta - P.W.1. Then handed over further

investigation to one Ganesh-P.W.7.

22. P.W.7 Ganesh, who was the investigation

officer has conducted further investigation. He has

deposed that he had collected information through

telephone from the Spice Telecom company in respect of

phone number 9844065789 as per Ex.P.15. The bill paid

by the accused for mobile phone is marked as Ex.P.16 and

he has filed charge sheet.

23. On perusal of the evidence of prosecution

witnesses and the arguments addressed by the learned

counsel for the appellant, it is seen that, in the cross

examination of P.W.2 who was the only person seeing the

accused that he came to the house and given the bundle of

cash. P.W.2 has stated that the accused himself informed

that he is Kulkarni and he wants to hand over the bundle

to her husband. Then she went to neighbour's house and

made telephone call to P.W.1 but could not contact her

husband. She says that the accused came to home at 4.30

p.m. and he was standing there in the house and tried to

hand over the same. But once again P.W.2 went to the

neighbour's house and contacted P.W.1 and informed

about the arrival of the accused. When she came back, the

accused was not there, but he left the bundle consisting of

cash and he left the chit containing the name and phone

number. P.W.2 has not stated in her evidence that, what

was the phone number left by the accused in her house.

She also says that she lost the chit left by the accused and

said that it was misplaced when she went to the

neighbour's house for making telephone call to her

husband. The learned counsel for the appellant has

seriously disputed the arrival of the accused to the house

and contended that when the phone number was

mentioned by P.W.1 in the complaint as well as which was

left along with the bundle of cash, the question of missing

the slip does not arise, but it was purposely suppressed by

the prosecution. P.W.2 was unable to say as to how she

lost the important documentary evidence where it contains

the name of the accused along with the phone number

which is in his hand writing. When she lost the slip

containing the phone number and name, while telephoning

to the P.W.1 while in the neighbour's house, it is difficult to

accept as to whether she was able to remember the mobile

phone number of the accused in order to inform P.W.1.

P.W.1 who is the husband of P.W.2 has also stated that

her wife informed that a chit and name of the accused was

left in the house. The investigation officer P.W.5 police

inspector who went to the house of the complainant prior

to the arrival of P.W.1 said he has seen the bundle and the

cash, but he has not stated anything about the slip/chit

containing the name and mobile number of the accused.

Even though P.W.1 stated in his complaint that the

accused left the chit as well as mobile phone number, it

was the duty of P.W.5 to seize the chit and phone number

of the accused i.e. the only document that connects the

accused with the crime, but neither P.W.1 nor his wife-

P.W.2 spoken about the chit handed over to the police.

24. Even otherwise, P.W.3 who is panch witness to

the seizure and IAS officer and colleague of the P.W.1 has

not spoken about the chit P.W.5 investigation officer has

also not enquired about the chit that was alleged to be left

out by the accused. Only in the cross examination, P.W.2

has stated that it was misplaced but the main connecting

evidence is the slip/chit left by the accused mentioning his

name and mobile number and definitely it could have

contained the hand writing of the accused, but

intentionally the prosecution suppressed the crucial

document without producing before the court. If that chit

is produced that will connect the accused with the crime to

show that he is the person who came to the house of

P.W.1.

25. Apart from that the prosecution has not

examined the independent panch witnesses for Ex.P.2

Though they cited as One Yousuff panch witness C.W.7

was not examined before the Court. The other two maid

servants working in the house of P.W.1 were also not

examined before the court to confirm that the accused

himself came to the house and left M.Os.1 and 2.

26. P.W.3, an I.A.S officer and batch mate of P.W.1

said to be came to Bangalore and on invitation of P.W.1,

he came to the house of P.W.1. The police opened the

bundle and found the cash the same was seized under

panchanama as per Ex.P.2. P.W.5 who was the person who

registered FIR by obtaining complaint and prepared

panchanama.

27. P.W.5 has categorically stated he has prepared

the panchanama Ex.P.2 and seized the cash between 8.30

and 9.10 p.m. Then he came to the police station and

registered the FIR as per Ex.P.13. Ex.P.13-FIR reveals that

it was registered by the police after 9.30 p.m. An entry

was made in the general station house diary at 9.15 p.m.,

which clearly reveals that the police officer seized

M.O.No.1 and 2 under the panchanama Ex.P.2 between

8.30 and 9.10 pm prior to the registration of the case and

issued FIR after 9.15 p.m. Therefore, there is gross

violation of the procedure as contemplated under Section

154 of Cr.P.C. and the procedure and guidelines issued by

the Hon'ble Supreme Court in Lalita Kumari vs.

Government of Uttar Pradesh and others reported in

(2014) 2 SCC 1. It is well settled by the Hon'ble

Supreme Court that in a cognizable case, the police are

required to register the FIR and then investigate the

matter. The Hon'ble Supreme Court has also held that the

police are required to make a preliminary enquiry in P.C.

Act cases. Here in the present case, P.W.5 seized the cash

from the house of P.W.1 by receiving the complaint

without registering the FIR which was gross violation of

mandatory provisions and the guidelines issued by the

Hon'ble Supreme Court. Lalita Kumari's case P.W.5 could

have made preliminary enquiry in order to confirm the

name of the accused and phone number prior to

registering the FIR and after receiving the complaint, he

could have seized the cash in the presence of the

independent witnesses.

28. The Hon'ble Supreme Court in the Lalitha

Kumari's case (supra), has held at paragraph No.111(i),

(ii), (iii), (iv), (v), (vi) and (viii) read as under:

"111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is

disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

29. On perusal of the guidelines issued by the

Hon'ble Supreme Court when P.W.1 informed DCP

Venugopal and in turn, the DCP informed P.W.5 police

inspector to go the house of P.W.1. The cash handed over

by the accused to P.W.2 becomes cognizable offence under

the provisions of the P.C. Act. Immediately, P.W.5 could

have informed the police station for making an entry in

SHD regarding commission of offence and receipt of the

complaint at 8.30 p.m., but he has seized the cash at 8.30

p.m. and thereafter he went to the police station and

registered FIR only after 9.15 p.m. by showing the name

of the accused. Therefore, when the accused was not

present on the spot and the chit left by him along with the

cash was not handed over to P.W.5, then it was the case

required for preliminary enquiry before registering the FIR.

Even otherwise, if it is a definite case that the accused

came and gave money as it is cognizable offence, then

registering FIR is mandatory and then the investigation

officer could have seized the cash under the panchanama,

but P.W.5 seized the cash and started investigation prior to

the registering the FIR. Therefore, the very foundation of

the prosecution commencing the investigation and

thereafter registering the FIR vitiates the entire

investigation and proceedings.

30. That apart, P.W.3 who is the colleague of P.W.1,

definitely used to support P.W.1 and he has not seen the

accused. The prosecution tried to connect the accused

with the crime on the ground that the accused had a case

before the P.W.4-Assistant Commissioner and this P.W.1

being joint commissioner compounded the offence and

they received the tax amount from the accused. Such

being the case, the work of the accused with P.W.1 or

P.W.4 has been completed. The question of the accused

bribing the complainant after completion of work cannot be

acceptable as there is no working pending with P.W.1.

31. The Co-ordinate Bench of this Court in the case

of P.M. Manjunath Vs. The State by Karnataka in

W.P.No.10027 of 2022 dated 16.11.2022 has held that

" Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap is a failure."

32. Though the prosecution produced Exs.P.4 to

P.12, but those documents reveal that the work of the

accused was already completed and the matter was

compounded by P.W.1. Actually, the assessing officer was

P.W.4. Such being the case, the possibility of P.W.1

demanding bribe from the accused, is not ruled out. The

accused might have brought money on demand made by

P.W.1. When the accused came to the house of P.W.1

and at the same time, P.W.3 might have come to the

house and witnessed the cash left by the accused. Then

there is every chance of P.W.1 or P.W.2 informing the

police for registering the case. Otherwise, how the

accused could come to the house of P.W.1, who had given

the address to the accused in order to bring money. As

rightly contended by the learned counsel for the appellant,

the accused might be the victim and P.W.1 might have

demanded money for having done favourable work to the

accused. Therefore, when there are two views are possible,

one, the accused might brought the money for bribing

P.W.1 for having done his work and compounding the

offence, or second, P.W.1 might have demanded bribe

from the accused for completion of the work of the

accused by compounding the case and then the amount

brought by the accused was witnessed by P.W.3. In order

to avoid filing of the complaint by the accused before the

Lokayuktha police, they have not touched the same and on

the other hand, P.W.1 lodged the complaint to the local

police against the accused. If two views are possible, the

view which is favourable to the accused shall be accepted.

33. That apart, suppressing the chit left on the spot,

mentioning the phone number and name of the accused by

the prosecution witnesses creates serious doubt in the

mind of the Court. In addition, no call detail records are

collected and produced to show as to whether the accused

telephoned P.W.1 or contacted P.Ws.1 or 4 through his

mobile phone, prior to the alleged incident or whether the

police or P.W.1 tried to contact the accused through mobile

phone, are not forthcoming. Therefore, the benefit of

doubt shall be extended to the accused.

34. Apart from that, P.W.2, who is the wife of

P.W.1-complainant, was not able to identify the accused as

there was long gap of five years and she had seen only

one time in the house. The non-examination of

independent witnesses for seizure and gross violation in

commencement of investigation without registering FIR

have vitiated the entire investigation proceedings.

Therefore, in my view, the prosecution has failed to prove

the offence committed by the accused that he has abetted

the public servant for receiving bribe, which is punishable

under Section 7 of P.C. Act. Therefore, I hold that the

prosecution has failed to prove the case against the

accused beyond reasonable doubt.

35. The trial Court has committed an error in

accepting the evidence of the prosecution witnesses and it

has ignored the total serious lapse on the part of

investigation officer, commencement of investigation

without registering the FIR, which was fatal to the

prosecution case. Therefore, the judgment of conviction

and sentence passed by the trial Court is liable to be set

aside.

36. Accordingly, I pass the following order:

         (i)     The criminal appeal is allowed.

         (ii)    The judgment of conviction and           sentence

passed by Special Judge, Prevention of Corruption

Act, Benglauru Urban District, in Spl. C.C.

No.37/2005 dated 28.05.2011 is hereby set aside.

(iii) The appellant is acquitted of the offence

punishable under Section 12 of P.C. Act and his bail

bond stands cancelled.

(iv) The fine amount, if any, collected or deposited,

is ordered to be refunded.

Sd/-

JUDGE

Cs