(PC Act) Bengaluru in Spl.C.C.No.221/2021.
2. Vide impugned judgment, accused No.1 is
12 of the PC Act.
3. Accused No.2 has been acquitted of the offence
punishable under Section 7(a) of the PC Act.
4. The trial Court has sentenced accused No.1 to
undergo S.I. for a period of 3 years and to pay a fine of
Rs.25,000/-, in default of payment of fine, to undergo S.I.
5. Accused No.2 is sentenced to undergo S.I. for a
of payment of fine, to undergo S.I. for a further period of 1
month for the offence under Section 12 of the PC Act.
6. Aggrieved by the judgment and order of
7. Brief facts of the prosecution case:- The first
Bengaluru, measuring 26.5 x 30 ft. On 29.09.2018, he
said property. However, certain residents of the adjacent
public road and demanded that space be left for the road.
PSI in BMTF Police Station. Accused No.1 demanded an
illegal gratification of Rs.80,000/- for closing the case.
Upon negotiation, he reduced the demand to Rs.70,000/-.
On 02.11.2018, first informant visited the office of BMTF.
Rs.20,000/- on behalf of accused No.1. When the balance
lodged a complaint. The ACB Police conducted pre-trap
8. Upon completion of investigation and securing
9. Before the trial Court, prosecution got examined
PWs.1 to 10, got marked Exs.P1 to P45 and MOs.1 to 10.
The defence got examined Exs.D1 to D5.
10. The trial Court convicted and sentenced accused
11. Heard the arguments of learned counsel for
perused the evidence and material on record.
12. The learned counsel for appellants have
(iii) Complainant/PW.3, a pivotal witness in a trap
case has completely turned hostile and even the shadow
witness/PW.4 has categorically admitted that he did not
enter the chamber and remained outside the main door
and therefore, unaware of what transpired between the
complainant and the accused.
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(iv) During the trap proceedings, the I.O. conducted
personal search of both the accused and found nothing
incriminating. This significant fact, which supports the
defence version was suppressed in the trap mahazar and
ignored by the trial Court.
(v) There is absolutely no recovery of any tainted
currency notes from accused No.1. The recovery of the
notes from accused No.2 is shrouded with doubtful
circumstances.
(vi) Accused No.1 was not the deciding authority in
the matter concerning the complainant's property. Hence,
there was no occasion for him to demand any illegal
gratification.
(vii) The learned trial Court has mechanically applied
the 'presumption' under Section 20 of the PC Act, even
though the prosecution failed to establish demand and
acceptance, which are necessary to invoke the said
provision.
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(viii) The electronic evidence, including audio
recordings and forensic reports, was rejected by the trial
Court. Once the oral testimony of the complainant was
disbelieved and electronic evidence was discarded, the
conviction of the appellants is wholly unsustainable.
(ix) The prosecution failed to establish conscious
acceptance and lawful recovery of illegal gratification from
accused No.2. No witness saw the said accused receiving
money from the complainant. Specific case of the
prosecution is that the tainted currency was kept in a tray.
The unexplained sequence seriously undermines the
credibility of recovery.
(x) The inconsistencies, procedural lapses and
absence of direct evidence negate the essential
requirement of conscious acceptance under the PC Act.
The conviction is therefore vitiated.
(xi) The prosecution withheld the key witnesses who
were present during the trap. Their statements were not
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recorded or produced, raising serious doubts. The Courts
failure to draw an adverse inference in this regard is a
serious lapse.
(xii) The sanction order is vitiated due to lack of
proper application of mind by the sanctioning authority.
(xiii) In a parallel departmental enquiry initiated on
the basis of the same investigation papers and witnesses
as in the present criminal case, the enquiry officer has held
none of the charges were proved against accused No.1.
13. The learned Special Prosecutor has contended
as under:
(i) Exs.P1 and P2 are the sanction orders issued by
PWs.1 and 2, competent authority to accord sanction to
prosecution accused Nos.1 and 2. The trial Court has
rightly concluded that there was proper application of mind
in issuing Exs.P1 and P2.
(ii) PW.4/shadow witness has supported the
prosecution case. His evidence is corroborated by the
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evidence of PWs.6 and 9. The tainted currency was
recovered from the pant pocket of accused No.2. The
allegation that accused No.2 was coerced into signing
Ex.P28 is not proved.
(iii) The evidence establishes that accused No.1 was
present in his office and asked accused No.2 to receive the
bribe amount on his behalf. No credible explanation was
provided by accused No.2 regarding possession of the
tainted cash.
(iv) The demand and acceptance of the bribe was
proved and the accused has failed to rebut the
presumption under Section 20 of the PC Act.
(v) The exoneration of accused No.1 in disciplinary
proceedings is not fatal to the prosecution.
(vi) Even if the complainant has turned hostile, in
the absence of primary evidence, it is permissible to accept
the circumstantial evidence and in the present case the
evidence of shadow witness corroborated by the testimony
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PWs.6 and 9, prosecution has established the guilt of the
accused.
14. Among the witnesses examined by the
prosecution, PW.1 is the ADGP, Bengaluru, who issued
Ex.P1 - Sanction order to prosecute accused No.1, PW.2 is
the MD, KEONICS, who issued Ex.P2 - sanction order to
prosecute accused No.2, PW.3 is the complainant, PW.4 is
the shadow witness, PW.5 assisted in the investigation,
PW.6 is the Dy.SP., ACB, who received the complaint -
Ex.P3 and registered the case, PW.7 is the Assistant
Director, FSL, from whom Exs.P31 to 36 are got marked,
PW.8 is the Investigation Officer who filed charge sheet
after receiving sanction order in respect of accused No.2,
PW.9 is the Investigation Officer who conducted
investigation, and PW.10 is the Police Inspector who
secured the sanction order - Ex.P1.
15. It is the specific case of the prosecution that the
complainant had undertaken construction of a compound
wall around his property and certain residents of the
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adjacent plots had objected alleging encroachment of the
road by him and therefore, filed a petition before the BMTF
Police. When the complainant approached accused No.1
working as a PSI, he demanded a bribe of Rs.80,000/- to
close the case and then reduced the demand to
Rs.70,000/-. He then paid a sum of Rs.20,000/- to
accused No.2, working as a Clerk on contract basis in the
said Police station, on 02.11.2018, who received the said
bribe on behalf of accused No.1. Thereafter, on a
complaint lodged by PW.3, a trap was laid. PW.3
accompanied with PW.4 went to BMTF Police Station,
wherein, the complainant kept the tainted currency of
Rs.50,000/- in a tray, as per the instruction of accused
No.1 and the said tainted currency was recovered from
accused No.2.
16. It is contended that the sanction orders were
issued mechanically without application of mind and
verification of documents.
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17. It is not in dispute that at the time of incident,
accused No.1 was working as a Police sub-Inspector. He
has not disputed the fact that PW.1, ADGP is the
competent authority to accord sanction to the officer
working in the cadre of Sub-Inspector of Police. PW.1 has
deposed about according sanction order as per Ex.P1, to
prosecute accused No.1. It cannot be said that, accused
No.1 working as a Police Sub-Inspector in the BMTF was
not authorized to conduct enquiry and submit report with
regard to the complaint received by the BMTF Police.
18. Similarly, PW.2 namely the Managing Director,
KENOICS has deposed that accused No.2, a Clerk was
deputed to BMTF Police Station to work on contract basis
and he was the authority to remove him from service. He
has deposed that after verifying all the documents such as
complaint, FIR, pre-trap and trap mahazars etc. He
accorded sanction as per Ex.P2.
19. The testimony of PWs.1 and 2 would confirm
that after applying the mind and scrutinizing the
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documents, Exs.P1 and P2 were issued. The trial Court has
observed, the presumption under law remains that, unless
proven otherwise, the sanctioning authority acted fairly
and objectively. The said finding of the trial Court cannot
be found fault with.
20. The complainant is examined as PW.3.
However, he has turned hostile and completely denied the
prosecution case. A perusal of his evidence would suggest
that except preparation of the pre-trap mahazar, he has
not supported the demand of bribe amount by accused
No.1, recording of the conversation and seizure of the
tainted currency notes from accused No.2. He has deposed
that he placed the tainted cash of Rs.50,000/- in a tray
which was on a table in the cabin of accused No.1. He has
nowhere stated that he kept the money on a demand
made by accused No.1 or at his instruction. He was treated
hostile by the prosecution, but nothing worthwhile was
elicited to establish either the demand or acceptance of
bribe by the accused.
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21. The trial Court has observed that PW.3 has not
supported the prosecution case in its entirety and denied
lodging of Ex.P3, but admitted receiving of notice from the
BMTF Police, appearing before accused No.1, production of
Rs.50,000/- cash before the I.O., and keeping the said
cash in the tray kept on the table of BMTF Police Station.
The trial Court has come to the wrong conclusion that the
tainted currency was placed in the tray in the presence of
accused No.1, though nowhere PW.3 has stated in his
deposition that he kept the cash in the tray, in the
presence of accused No.1.
22. Admittedly, the tainted cash was not seized
from accused No.1. According to prosecution, he
instructed accused No.2 to collect the money and later the
raiding team seized the cash from accused No.2 under a
mahazar-Ex.P5.
23. PW.4 is the shadow witness who was sent along
with PW.3 to the office of the BMTF. He was instructed by
the I.O., to accompany PW.3 and to observe the
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conversation and as to what transpires between the
accused and PW.3. In so far as the entrustment mahazar -
Ex.P4 is concerned, PW.4 has deposed about applying the
phenolphthalein powder on the cash produced by PW.3 and
the test conducted. His testimony goes to show that, he
was instructed by the I.O., not to go inside the office of
BMTF, if someone raises any doubt. He has deposed that
PW.3 entered the office, but he remained at the door. The
I.O., and CW.3 (PW.5) were standing near the parking
place. Thereafter, PW.3 came out of the office and gave
signal to the police.
24. The trial Court while appreciating the evidence
of PW.4 has stated that he was present along with PW.3
when he entered the BMTF Police Station and he could
witness the transaction between PW.3 and accused No.1
and also he could hear their conversation. This reasoning
is only unsustainable, as PW.4 has nowhere stated that he
has either heard the conversation between PW.3 and
accused No.1 or seen the transaction, where accused No.1
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demanding bribe or telling PW.3 to keep the cash in a tray.
The trial Court accepted the evidence of PWs.4 and 9 to
come to a conclusion that accused No.1 has directed PW.3
to keep the amount in the tray, whereas, PW.3 himself has
denied the said crucial aspect.
25. It is relevant to reiterate the settled position of
law that, in order to attract the provisions of Section 7(a)
of the Prevention of Corruption Act, 1988, the prosecution
must establish the three essential ingredients: (i) that the
accused was a public servant; (ii) that there was a demand
for illegal gratification in the discharge of official duties
with a view to show official favour or disfavour; and (iii)
that there was conscious acceptance and recovery of the
tainted amount from the accused. While it is true that in
the absence of direct or primary evidence, the prosecution
may rely on circumstantial evidence, the burden lies on the
prosecution to establish each circumstance with clarity and
precision.
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26. The learned Special Public Prosecutor placing
reliance on the judgment of the Hon'ble Apex Court in the
case of C.M.Sharma v. State of Andhra Pradesh
reported in (2010) 15 SCC 1, has contended that 'bribe is
not taken in public view and therefore, there may not be
any person who could see the giving and taking of bribe
and corroboration of evidence of a witness is required
when his evidence is not wholly reliable'. It is his
contention that the evidence of the shadow witness throws
sufficient light to hold the accused guilty of the charges
levelled against them.
27. Relying on a decision of the Hon'ble Apex Court
in Pavan Kumar @ Monu Mittal v. State of Uttar
Pradesh and another reported in (2015) 7 SCC 148, it
is contented that in cases where the direct evidence is
scarce, the burden of proving the case of the prosecution
is bestowed upon motive and circumstantial evidence and
it is a chain of events that acquires prime importance in
such cases.
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28. The Hon'ble Apex Court in the case of
P.Satyanarayana Murthy v. District Inspector of
Police, State of Andhra Pradesh reported in (2015) 10
SCC 152 while dealing with the requirement to prove the
ingredients of Section 7 and 13(1)(d) of the PC Act, 1988,
held as under:
"20. This Court in A. Subair v. State of
Kerala [(2009) 6 SCC 587: (2009) 3 SCC (Cri)
85], while dwelling on the purport of the
statutory prescription of Sections 7 and 13(1)(d)
of the Act ruled that (at SCC p. 593, para 28)
the prosecution has to prove the charge
thereunder beyond reasonable doubt like any
other criminal offence and that the accused
should be considered to be innocent till it is
established otherwise by proper proof of demand
and acceptance of illegal gratification, which are
vital ingredients necessary to be proved to
record a conviction.
22. In a recent enunciation by this Court
to discern the imperative prerequisites of
Sections 7 and 13 of the Act, it has been
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underlined in B. Jayaraj B. Jayaraj v. State of
A.P., (2014) 13 SCC 55: (2014) 5 SCC (Cri) 543]
in unequivocal terms, that mere possession and
recovery of currency notes from an accused
without proof of demand would not establish an
offence under Section 7 as well as Sections
13(1)(d)(i) and (ii) of the Act. It has been
propounded that in the absence of any proof of
demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be
proved. The proof of demand, thus, has been
held to be an indispensable essentiality and of
permeating mandate for an offence under
Sections 7 and 13 of the Act. Qua Section 20 of
the Act, which permits a presumption as
envisaged therein, it has been held that while it
is extendable only to an offence under Section 7
and not to those under Sections 13(1)(d)(1) and
(ii) of the Act, it is contingent as well on the
proof of acceptance of illegal gratification for
doing or forbearing to do any official act. Such
proof of acceptance of illegal gratification, it was
emphasised, could follow only if there was proof
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of demand. Axiomatically, it was held that in
absence of proof of demand, such legal
presumption under Section 20 of the Act would
also not arise.
23. The proof of demand of illegal
gratification, thus, is the gravamen of the
offence under Sections 7 and 13(1)(d)(i) and (ii)
of the Act and in absence thereof, unmistakably
the charge therefor, would fail. Mere acceptance
of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the
proof of demand, ipso facto, would thus not be
sufficient to bring home the charge under these
two sections of the Act. As a corollary, failure of
the prosecution to prove the demand for illegal
gratification would be fatal and mere recovery of
the amount from the person accused of the
offence under Section 7 or 13 of the Act would
not entail his conviction thereunder."26. In
reiteration of the golden principle which runs
through the web of administration of Justice in
criminal cases, this Court in Sujit Biswas v. State
of Assam [(2013) 12 SCC 406 : (2014) 1 SCC
(Cri) 677] had held that suspicion, however
grave, cannot take the place of proof and the
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prosecution cannot afford to rest its case in the
realm of "may be" true but has to upgrade it in
the domain of "must be true in order to steer
clear of any possible surmise or conjecture. It
was held, that the court must ensure that
miscarriage of justice is avoided and if in the
facts and circumstances, two views are plausible,
then the benefit of doubt must be given to the
accused."
29. In light of the settled position of law, it become
imperative to assess whether, in the present case, the
prosecution has succeeded in proving the alleged demand
and conscious acceptance of bribe by the accused.
30. As already discussed, the evidence of PW.3,
who lodged the complaint - Ex.P3 will not come to the aid
of prosecution to establish that accused No.1 has either
demanded or accepted bribe from him. It is relevant to
mention that, according to prosecution, accused No.1
initially demanded a bribe of Rs.70,000/- and a sum of
Rs.20,000/- was handed over by PW.3 to accused No.2 on
02.11.2018. Except the bald allegation, there is not an
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iota of evidence to show that the said amount was
received by accused No.2 at the instruction of accused
No.1.
31. It is vehemently contended by the learned
counsel appearing for accused that after the trap team
entered the chamber of accused No.1, they could not find
the tainted cash and therefore, all the officials who were
present there were subjected to personal search, but they
did not find anything. Thereafter, PW.6 (Dy. SP) took
accused No.2 and PW.3 outside the chamber of accused
No.1 and only after his return, he indicated that the
currency are in the pant pocket of accused No.2. It is
contended that no witness has seen accused No.2 either
receiving the tainted currency from PW.3 or accused No.1
or seen him taking the currency notes from the tray kept
on the table. It is contended that the tainted currency
notes were planted in the pant pocket of accused No.2
after he was taken out of the chamber of accused No.1.
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32. PW.4 in his cross-examination has stated that in
the office of accused No.1 there were other officials namely
PSI - Amaresh Gowda, H.C. - Sumithra, PSI - Yogananda
Sonal and one Raghavendra V.K., a contract worker. He
has admitted that when the tainted currency was not
found in the chamber of accused No.1, the Dy. SP (PW.6)
and PW.3 took accused No.2 out of the chamber of
accused No.1. Thereafter, accused No.2 was brought back
and as instructed by the Dy. SP - Balaraju (PW.6),
accused No.2 gave his statement. He has further admitted
that he came to know the money was in the pant pocket of
accused No.2, only after he was informed by Balaraju (Dy.
SP - PW.6).
33. The above evidence of PW.4 clearly indicate
that, initially, when searched, no amount was recovered.
PW.6 - Dy. SP took accused No.2 outside the chamber of
accused No.1 and after returning, informed that the cash is
in his pocket. Further, accused No.2 gave written
statement as instructed by PW.6. PW.4 has clearly
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admitted in the cross-examination that no conversation
took place between accused No.1 and PW.3 and he did not
notice anything. Hence, a reasonable doubt arises in the
mind of the Court about the receipt of tainted currency
notes by accused No.2 from PW.3, at the instruction of
accused No.1 or he collecting the amount from the tray
kept on the table. Infact, PW.4 has admitted in the cross-
examination that in Exs.P15 to P22 - photographs the blue
colour tray is not seen on the table and the said tray was
not seized by the I.O. Prosecution has not explained as to
why the statements of other officials present in the office
of BMTF were not recorded and not cited them as
witnesses.
34. A cumulative reading of evidence of PWs.3, 4, 6
and 9 creates a serious doubt about the prosecution case,
as projected by it and not sufficient to prove the charges
levelled against the accused persons, beyond reasonable
doubt. The Hon'ble Apex Court in Sujit Biswas v. State
of Assam reported in (2013) 12 SCC 406 relied by the
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learned counsel for appellants has held that Suspicion,
however grave, cannot take the place of proof and the
prosecution cannot afford to rest its case in the realm of
"may be" true but has to upgrade it in the domain of "must
be true" in order to steer clear of any possible surmise or
conjecture. It is held, the court must ensure that
miscarriage of justice is avoided and if in the facts and
circumstances, two views are plausible, then the benefit of
doubt must be given to the accused."
35. As far as the evidence with regard to the
conversation between the complainant and the accused
recorded in the CD-Ex.P33 is concerned, the trial Court
has disbelieved the same, holding the electronic evidence
produced by the prosecution, testimony of PW.8 and the
voice analysis report at Ex.P31 are inadmissible for non-
compliance of Section 65(b) of the Evidence Act. Hence,
the said finding is in favour of the accused.
36. Another aspect is that, a Departmental enquiry
was conducted against accused No.1, in respect of the
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very same charges and he was exonerated from all the
charges levelled against him in the charge memo. This
alone, though may not be a ground to hold him not guilty,
this Court finds that the charges levelled against him in the
instant criminal case are not proved for the reasons noted
supra.
37. Having re-appreciated the evidence and
material on record, this Court is of the considered view
that the charges levelled against the appellants/accused
Nos.1 and 2 are not proved by the prosecution, hence, the
impugned judgment convicting and sentencing them is
liable to be set aside. Accordingly, the following:
ORDER
(i) Appeals are allowed.
(ii) The judgment and order dated 16.03.2022
passed by the Court of the XXIII Additional City Civil and
Sessions Judge and Special Judge (PC Act) Bengaluru in
Spl.C.C.No.221/2021 is set aside.
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(iii) Accused No.1 is acquitted of the offence under
Section 7(a) of the Prevention of Corruption Act, 1988 and
Accused No.2 is acquitted of the offence under Section 12
of the PC Act.
(iv) Their bail bonds stand cancelled.
(v) Fine amount if any deposited, shall be
refunded to the accused.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Hb/-
CT:JLR
