IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1342/2017 BETWEEN:
Sri B S Anand Kumar S/o Late S A Srinivas Murthy Aged about 35 years Junior Engineer, O & M-20 Office of BESCOM Byatarayanapura Branch Sahakaranagar Bangalore Presently R/at No.1998/2, ‘C’ Block 28th ‘D’ Cross, 2nd Main Sahakaranagar Bangalore. .. APPELLANT (By Sri Ravi B Naik, Sr. Counsel A/w Sri P N Hegde, Adv.) AND:
State of Karnataka Represented by Special Public Prosecutor Karnataka Lokayuktha Police M.S. Building Bengaluru-560 001. .. RESPONDENT (By Sri B S Prasad, Adv.) This criminal appeal is filed under Section 374(2) CR.P.C. praying to set aside the judgment and order dated 20.07.2017 passed by the XXIII Addl. City Civil and Sessions Judge and Spl. Judge, Bangalore Urban District, Bangalore in SPL.C.C.No.168/2012 – convicting the appellant/accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of prevention of Corruption Act.
This appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction and sentence dated 20.7.2017 passed by XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru, in Spl.C.C. No.168/2012. By the said judgment, the appellant-accused has been convicted for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short the P.C. Act) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.4,000/-, in default, to undergo simple imprisonment for one month. The appellant- accused has been further sentenced to undergo imprisonment for one year for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act and to pay fine of Rs.6,000/-, in default, to undergo simple imprisonment for two months.
2. The case of prosecution as per complaint averments is that accused being public servant was working as Junior Engineer in the Office of the BESCOM.
C.W.1 (R.K. Muniraju) being an electrical contractor submitted application to the BESCOM for preparation of sketch in respect of the building of one M. Srinivas. On 13.12.2010, C.W.1 approached the accused for the said purpose for which the accused demanded Rs.10,000/-
towards illegal gratification and on the request of C.W.1, he reduced to Rs.5,000/-. As C.W.1 was not willing to pay the bribe amount, he approached Lokayuktha Police Station and made an oral complaint. The further averments is that the Police Inspector of Lokayuktha gave voice recorder to C.W.1 and instructed to record the demand of bribe amount from the accused to do official favour. Accordingly, C.W.1 approached the accused along with the voice recorder and recorded the demand of bribe and went to Lokayuktha police station and lodged a report with the Police Inspector. On the basis of which a case came to be registered in Cr.No.62/2010 for the alleged offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. After completion of investigation, the investigating officer filed charge sheet as against the accused-appellant herein for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. After hearing both sides, the Court below framed the charges as against the appellant- accused for the said offences and when read over, the accused denied the charges and claims to be tried.
3. The prosecution, in all, has examined 5 witnesses as per P.Ws.1 to 5 and got marked the documents as per Exs.P.1 to P.26 so also got marked the material objects as per M.O. Nos.1 to 10. On the side of defence, no witness was examined nor got any documents marked.
4. After hearing the arguments of both sides, the Court below came to the conclusion that the prosecution has proved the charges as against the accused beyond reasonable doubt and accordingly, he has been convicted for the said offences. Therefore, the accused is before this Court challenging the legality and correctness of the said judgment and order of conviction so also the sentence imposed by the Court below on the grounds as mentioned in para Nos.18 to 25 of the appeal memorandum.
5. Heard the arguments of learned Senior Advocate appearing for the appellant-accused so also learned Spl.P.P. appearing for the respondent Lokayuktha.
6. Learned Senior Advocate appearing for the appellant during the course of his arguments made submission that so far as sanction order is concerned, it is not a valid sanction order. Even on an earlier occasion, when the Special Judge discharged the accused from the proceedings on the ground that the sanction order was not the valid sanction order, directed the concerned authorities to issue the valid sanction order. The Special Judge ought not have issued such a direction to the authorities for issuing the sanction order. This goes to show that because of direction issued by the learned Special Judge, the subsequent sanction order, which was relied upon by the prosecution, has been issued by the competent authority. The concerned authority are influenced by the direction issued by the learned Special Judge for issuing the sanction order and not even referring to the previous sanction order, obtained the subsequent order and produced before the trial court. Drawing attention to the said sanction order, the learned Senior Advocate made submission that after taking legal opinion from the advocate, the subsequent sanction order has been issued.
Coming to the merits of the case, learned Senior Advocate took this Court to the entire materials produced during the course of trial and made submission that firstly, the demand of bribe itself is not proved with satisfactory and cogent material by the prosecution before the Court below. Even according to the prosecution case, shadow witness was not sent along with complainant (C.W.1) to the chambers of the accused for the purpose of witnessing case of demand made by the accused. Therefore, only proof for demand of bribe is the evidence of the complainant. Though the prosecution got the help of CD produced and the conversation said to have taken place in between the complainant and accused as per the CD conversation, but the CD itself is not admissible in evidence because there is no compliance of Section 65B of Indian Evidence Act. Hence, because of such legal position, rightly the Court below observed by its judgment and order that since mandatory requirements of Section 65B is not complied with, the said Court cannot look into the CD and the conversation said to have been generated in the said CD. Hence, if conversation is excluded, the only material thus available for the prosecution is the evidence of P.W.1. The learned Senior Advocate submitted that the complainant has not fully supported the case of prosecution. Therefore, his evidence is not helpful to the prosecution in proving the charges as against the accused. With regard to the aspect of acceptance of bribe amount, learned Senior Advocate made submission that even the acceptance of bribe is not established by the prosecution with satisfactory material. In this connection, he draws the attention of this Court to the evidence of prosecution witnesses, more particularly, the evidence of investigation officer wherein the investigation officer has admitted in the deposition that when they went inside the chamber of accused, it was the complainant who told that the amount was in the table drawer of the accused and the investigation officer has also admitted that as the accused had not received the bribe amount, it was kept in the drawer of the table of the accused. If this aspect is looked into, this clearly goes to show that even there is no acceptance of bribe amount by the accused.
After recording chemical test, hand wash of the accused was not done in this case because as the complainant himself has told that accused had not received the amount from his hands and the same was kept in the table drawer of the accused. The hand wash in the sodium carbonate solution was not taken. Hence, it is submitted that there is no FSL opinion recording positive result in that regard. He submitted that looking to the evidence of other witnesses, it is not helpful to the prosecution to prove the important elements of charge, that there is demand and acceptance of bribe amount.
Learned Senior Advocate further made submission that the accused has also offered his explanation as per Ex.P.19 wherein he has clearly stated that he had not at all the received the bribe amount and the complainant tried to forcibly put it into the drawer of his table. Hence, he submitted that looking to the materials placed on record during the course of trial of the accused, the prosecution has utterly failed to prove both charges that there was demand and acceptance of bribe by the accused from the complainant. The Court below ought to have considered this aspect of the matter, but it has completely ignored this aspect and has wrongly read the evidence in this case and wrongly proceeded to hold that the accused is guilty of both the offences. Therefore, the judgment and order of conviction passed by the Court below is not in accordance with the materials placed on record. Hence, the learned Senior Advocate requested to allow the appeal by setting aside the judgment and order of conviction passed by the Court below. In support of his contention, the learned Senior Advocate has relied upon the following decisions:
(a) (2014) 10 SCC 473 (Anvar P V Vs. P K Basheer and Others) (b) (2015) 15 SCC 629 (T K Ramesh Kumar Vs. State Through Police Inspector, Bangalore) (c) (2014) AIR SCW 2080 (B Jayaraj Vs. State of A.P.) (d) (2010) 10 SCC 439 (Paramjeet Singh Alias Pamma Vs. State of Uttarakhand) (e) (2017) 3 SCC 247 (Arjun and Another Vs. State of Chhattisgarh) (f) (2015) 3 SCC 123 (Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and Others) 7. Per contra, learned Spl.P.P. appearing for the respondent-Lokayuktha made submission that so far as issuance of the sanction order is concerned, the order of the Court below was not at all challenged by the appellant herein. So the said order becomes final and now the appellant is not permitted to challenge the validity of the earlier order. So far as subsequent sanction order which is produced in this case, the learned Spl.P.P. clarified to this Court that the legal opinion taken from the advocate was not with regard to the merits of the order to be issued in this case but the legal opinion was only to the extent to know who was the competent authority to issue the sanction order. Hence, he submitted that even there is reference in the sanction order that the legal opinion is taken, that by itself will not invalidate the sanction order.
Regarding merits of the case, learned Spl.P.P. made submission that though shadow witness was not sent along with the complainant into the chambers of accused, but the complainant has clearly deposed in the complaint as well as in his oral evidence that there was demand made by the accused to attend to the said work. It is also the submission of learned Spl.P.P. that when the complainant approached Lokayuktha polilce, the Lokayuktha police had given tape recorder to record conversation in between the complainant and accused, and accordingly it was recorded. Therefore, it clearly shows that there was demand made by the accused for bribe from the complainant. So far as certification to transcript, that is conversation taken out from the said tape recorder, is concerned, the learned Spl.P.P. made submission that it bears signature of the concerned competent authority, but specifically there is no such certification put by the authority. Referring to the transcript of the conversation taken from the tape recorder, he made submission that the signature by the competent authority itself amounts to certification of the said entries. He made submission that in oral evidence of P.W.1 which is corroborated by the evidence of investigating officer, there is satisfactory proof of demand of bribe amount by the appellant accused. Drawing attention of this Court to the oral evidence of prosecution witnesses, learned Spl.P.P. made submission that there is mention by the investigating officer that they asked the accused where is the bribe amount and the accused told that it is in the table drawer. Therefore, if the accused was not concerned with the bribe amount, he was not supposed to tell before the investigation officer that the said amount was in the drawer of the table. Therefore, it also supports the contention of the prosecution that bribe amount was received by the accused. Learned Spl.P.P. drawing the attention of this Court to the fact that when the amount has been recovered, under Section 20 of the P.C. Act, it raises presumption, and burden is on the accused to rebut the said presumption. He also submitted that the oral and documentary materials produced in the case by the prosecution have been properly appreciated by the Court below and it has considered the said materials extensively and came to the right conclusion in holding that the prosecution has proved its case beyond reasonable doubt. No illegality has been committed by the Court below nor perverse or capricious view has been taken by it. Hence, there are no grounds made out by the appellant-accused in this appeal to interfere with the judgment and order passed by the Court below. Lastly, the learned Spl.P.P. submitted that there is no merit in the appeal and the same is to be dismissed confirming the judgment and order of the Court below.
In support of his arguments, learned Spl.P.P. has relied upon the following decisions:
1. (2016) 1 SCC page 709 – Indra Vijay Aloki Vs. State of Madhya Pradesh 2. Crl.Apl.No.133/2010 – V Rajagopalaiah and another Vs. State of Karnataka 3. (2012) 11 SCC page 642 – Mukut Bihari and another Vs. State of Rajasthan 4. 1980-Crl.L.J.564 – Hazari Lal Vs. The state (Delhi Admn) 5. 2016 (4) KCCR SN 371 – Mukhtiar Singh Vs. State of Punjab 6. (2016) 13 SCC 258 – S C Goel Vs. State Through Central Bureau of Investigation 8. I have perused the grounds urged in the appeal memo, judgment and order of conviction passed by the Court below, oral evidence of the prosecution witnesses PW 1 to 5 so also the documents, Ex-P1 to P26. I have also considered the oral submissions made by the learned Senior Counsel for the appellant and also the Special Public Prosecutor for respondent Lokayuktha, during the course of hearing of the above appeal and perused the decisions relied upon by the learned counsel for both the sides.
9. A per the prosecution case, the complainant approached the accused person firstly on 13.12.2010 and when the accused person came for a spot inspection nearby the house bearing No.385/18, 19 at about 11:00 a.m. and told that the electrical poles have to be installed and TC is also to be erected for giving electricity connection to the said house, at that time, the accused person demanded Rs.10,000/- from the complainant. For this he has not agreed but complainant told the accused person that he will give Rs.3,000/-, for which the accused did not agree. Then accused went away asking the complainant to come tomorrow to his office to see him.
Therefore, the complainant wanted to lodge a complaint in this regard and went to Lokayuktha Office on 14.12.2010 and informed as to what has happened at that time. Lokayuktha Police gave one digital voice recorder asking the complainant to record the conversation which happens between himself and the accused person and asked him to come back. In the morning, he went to the office of the accused at Sahakara Nagara, met him and when spoke to the accused person, he repeated what he has told on the previous day i.e., he demanded Rs.10,000/- for signature. For that PW1-complainant told that he will give Rs.5,000/- and stated that he will bring the said amount on the next day and came back. The conversation is recorded in the voice recorder. Therefore, again he went to the Lokayuktha office and he told what has happened between himself and the accused person. He produced the voice recorder before the Lokayuktha Police.
10. In this connection, let me examine what is the material placed by the prosecution to establish the demand and acceptance of the alleged bribe amount. Admittedly, in this case, the shadow witness has not at all accompanied the complainant because it has come on record through the prosecution material itself that as the complainant raised suspicion that in case the shadow witness accompanies him to the office of the accused, then accused may raise suspicion and as told by the complainant, the idea of sending the shadow witness along with the complainant was dropped by the Lokayuktha Police. So this aspect goes to show that it is the complainant alone who entered the office of the accused person. The complainant has been examined as PW1. On his evidence in the examination-in-chief, he has deposed that he has seen the accused who was working as Junior Engineer in BESCOM. He further deposed that about 5 to 6 years back, on behalf of his customer he has given an application for getting the electricity connection to the house of his customer. In the next sentence, he deposed that he does not remember the name of his customer. When he met the accused in that connection, accused told him that estimate has to be prepared and asked him to come after 4 to 5 days. After 5 days when PW1 approached the accused, accused told that for preparing the estimate he has to pay Rs.10,000/- and PW1 told it is not possible for him to pay that much amount and that he is prepared to pay Rs.8,000/-. In the complaint, he has mentioned that when the accused demanded to pay Rs.10,000/- he told that he is prepared to pay only Rs.3,000/-but in his oral evidence and in examination-in-chief he has deposed that it is not possible to pay Rs.10,000/- and that he is prepared to pay Rs.8,000/-. As he was not willing to pay the bribe amount, he went to the Lokayuktha Police and gave the complaint.
The Complaint is Ex-P1. Another important aspect is, after lodging the complaint, Lokayuktha Police has given one voice recorder to him whereas, as per his complaint on 13.12.2010 itself he met the accused person and when accused demanded Rs.10,000/- then on 14.12.2010, PW1 went to the Lokayuktha Office and told before the Lokayuktha Police about the demand made by the accused person to attend to his work of giving electricity connection to the house of customers of the complainant and he mentioned in the complaint that after telling so, the Lokayuktha Police gave him voice recorder. He lodged a complaint after having conversation between himself and the accused person and after recording the same in the voice recorder, came back to the Lokayuktha Office. But in the oral evidence on oath, his deposition is altogether different. It goes to show that after he lodged the complaint as per Ex –P1, he was given a voice recorder and he went and recorded the conversation between himself and accused person. Therefore, there is total inconsistency in the evidence of PW1 regarding the Lokayuktha Police giving him the voice recorder, so also the bribe amount that he has agreed in the complaint itself i.e., Rs.3,000/- for which he agreed in the oral evidence. He deposed on oath that he agreed to pay Rs.8,000/-. He further deposed that he has produced Rs.5,000/- before the Lokayuktha Police. If the demand made by the accused person is Rs.8,000/- why and how he produced Rs.5,000/- before the Lokayuktha Police is also not explained and he has not given any explanation in that regard. In the further examination-in-chief, he deposed that at the time of lodging the complaint, he gave the voice recorder to the police. This is again contrary to his evidence that he has stated in the previous part of the examination-in-chief.
11. Looking to the trap proceedings, the evidence of this PW1 goes to show as if the accused person received the bribe amount from his hands and handled the tainted currency notes with both of his hands because he has stated in his oral evidence that both the hands of the accused person were washed in Sodium Carbonate Solution prepared separately in two bowls and he has also stated that the Sodium Carbonate Solution taken for the hand wash of the accused person did not turn into pink colour. I have also perused the oral evidence of PW4 another panch witness to the mahazar. He has deposed before the court in his evidence that the hand wash of both the hands of the accused persons taken in two separate Sodium Carbonate Solution, did not turn into pink colour. The evidence of the Investigating Officer is contrary to the evidence of PW1 and PW4 regarding taking the hand wash of the accused person. The Investigating Officer deposed in his evidence that when he entered into the chamber of the accused person and when he asked the complainant about the bribe money, the complainant told him that he kept the bribe amount in the table drawer of the accused person. Therefore, in view of such statement made by the complainant, he dropped the idea of washing hands of the accused person in Sodium Carbonate Solution. Therefore, the evidence of the Investigating Officer goes to show that hand washing of the accused person in the Sodium Carbonate solution was not at all required in the case. But as per the evidence of PW1 and PW4, hand wash was taken in Sodium Carbonate Solution. Inspite of that, the solution did not turn into pink colour.
12. Regarding the demand and acceptance of the bribe amount of the accused person is concerned, the evidence of PW5, Investigating Officer is also more important in this case, because in his evidence he has deposed, after the complainant, giving pre-arranged signal, himself and his staff along with other panchas entered into the chamber of the accused person. Accused was sitting on his chair and he asked the complainant about the bribe money. At that time, the complainant himself told that as the accused refused to receive the bribe amount, he has kept the same in the table drawer of the accused. Therefore, the evidence of PW5, Investigation Officer also goes to show that in his presence, in the office of the accused, complainant told before him that accused refused to receive the bribe amount and hence, the complainant kept it in the table drawer of the accused. But in the trap mahazar proceedings, it is recorded that when Investigating Officer asked the accused about the bribe money, accused told the Investigating Officer that when he was perusing some papers, without bringing to his knowledge the complainant kept the bribe amount in the table drawer. The accused also offered his explanation separately which is as per Ex-P19, wherein also he has stated the same thing that he has not received the said amount. Therefore, the materials go to show that the tainted currency notes were not at all touched by the accused person in this case, otherwise there is no reason for the Investigating Officer to drop the idea of taking hand wash of the accused person in the Sodium Carbonate solution. Though, it is stated by PW1 and PW4 that the hand wash was taken firstly against evidence of PW5 Investigating Officer, secondly even if their evidence is accepted as true for the purpose of appreciation of the case of the prosecution, they themselves have admitted that after the hand wash in the Sodium Carbonate solution there is no change in the colour. Therefore, this goes to show that the tainted currency notes were not at all handled by the accused person and even the trap mahazar proceedings as well as oral evidence of the prosecution witness clearly goes to show that the said currency notes were taken out from the drawer of the accused person. It is true that one Thontaradhya took out the tainted currency notes from the drawer as per the directions of the Investigating Officer and the table drawer was wiped with cotton and when the cotton was washed in Sodium Carbonate solution, it turned into pink colour. Even if it is so, it is the contention of the accused person that it was kept there without bringing to his knowledge and when he was engaged in perusing the papers on his table.
13. The reason for the accused person for demanding the bribe amount, according to the prosecution, the application given by the complainant for taking electricity connection to the house of his customer which was pending and for that reason he demanded the bribe amount. In this connection, the evidence placed on record is material. In the cross examination, PW1 the complainant has deposed that he gave the application seeking electricity connection in the year 2010. He further deposed that when he made such an application, at that time, the accused person was not working in the said office. He admitted the suggestion that when he gave such application the Junior Engineer, EHT sent it to the Superior Officer for clearance. The next sentence of PW1 in the cross examination is very important. When the file was sent to the Superior Officer there was unnecessary delay for about 4 months. For this suggestion, the witness said yes. He further deposed that the case file was sent for EHT clearance. There was a difference of opinion between himself and his customer who is the owner of the house. In the next breath he has deposed that he brought the said file from Assistant Executive Engineer’s Office and handed over the same to the accused person. This evidence of PW1, complainant during the cross examination goes to show that the file was lying with the Superior Officer for EHT clearance and when the application was given by the complainant, the accused was not at all working in the said office. This material placed on record clearly goes to show that the delay in giving the clearance is not because of the accused person as admitted by the complainant himself.
14. Regarding the voice recorder and so also the button camera which was fixed to the complainant with instructions to keep it on during the course of the trap proceedings, it is evident that after the trap was over he handed over the button camera and also the voice recorder to the Investigating Officer. So far as the voice recorder is concerned, if the evidence of PW-5 is considered in this case, it is evident in the examination-in- chief that on 14.12.2010, the complainant came to the Lokayuthka Office, met him and he orally told before him about the accused making a demand for the bribe amount. But, at that time, the Lokayuktha Police has not at all received the same in writing to treat it as a complaint. Inspite of that, it is evident that he gave the digital voice recorder to the complainant asking him to meet the accused person again and discuss the matter and if the accused person again demands, record the same and come back to the Lokayuktha Office. Now, in this connection, how far the giving of the voice recorder to the complainant and asking him to go and record the conversation is relevant and admissible is to be considered by this Court. As per the decision of the Hon’ble Apex Court in Lalita Kumari Vs Government of U.P & others case reported in (2014) 2 SCC 1: “Whenever there is an information about the committing of cognizable offence, the registration of FIR is mandatory under Section 154 of the CRPC. Immediately the police have to register the complaint without causing any sort of delay.” No doubt in the said case their lordships of the Hon’ble Apex Court also considered in the same case by way of explanation, that in corruption cases, family matters, commercial transactions, medical negligence cases etc., wherein their lordships observed that preliminary enquiry in such cases is permissible even before registration of the complaint, immediately. But in this case whether the giving of the voice recorder for the purpose of conducting preliminary enquiry or for the purpose of collecting evidence by the prosecution is an important aspect to be looked into by this Court. When on 14.12.2010, the complainant came to the Lokayuktha Office and narrated everything as to what has happened between himself and the accused person the accused person alleged to have demanded Rs.10,000/- bribe amount for giving NOC clearance in respect of giving the electricity connection to the houses of customers of the complainant. All the details were furnished to the Lokayuktha by the complainant at that moment of time itself. Therefore, the information furnished by the complainant on 14.12.2010 clearly goes to show in respect of cognizable offence. Therefore, however, no information was required by the police when the person who demanded the bribe amount, his name, purpose of demand of the bribe amount, everything has been informed to the Lokayuktha Police. FIR ought to have been registered immediately as per Section 154(1) of Cr.P.C. Therefore, the materials clearly go to show that giving of the voice recorder to the complainant, again asking him to go to the accused, have the conversation about the bribe amount recorded in the voice recorder is nothing but with an intention to collect the evidence. Therefore, the said voice recorder cannot be considered as a relevant piece of evidence in this case.
15. Apart from that, as contended by the prosecution, even if for the sake of appreciation it is taken for the purpose of making preliminary enquiry, the said voice recorder has been given to the complainant to go and have a conversation again and record the same in the voice recorder. Subsequently, it is the case that the conversation which was transferred to the compact disc (CD) with the help of computer and now the question is about the admissibility of CD or the conversation taken out by way of script which is produced before the learned Special Judge. Looking to the judgment and order passed by the trial court, the trial court has also properly considered the said material i.e., the conversation in the voice recorder, said to have been recorded by the complainant about the conversation regarding the demand for bribe amount and subsequently, transferred to the CD with the help of the computer, which cannot be received in evidence as observed by the learned Special Judge because Section 65B of the Indian Evidence Act is not at all complied with. So in this connection I am also referring to the full bench decision of Hon’ble Apex Court reported in AIR (2014) 10 Supreme Court Cases, Page 473 in the case of Anvar P.V. Vs. P.K. Basheer and others. In this decision the principle laid down and the relevant paragraphs at para No.19 and 22 reads as under:
“19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, (State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715) does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, Chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”
16. Therefore, looking to the decision and the observation of their lordships, in this case, I am of the opinion that the learned Special Judge is also justified in not receiving the conversation, which is in the form of CD produced before the Court because there is no compliance of Section 65B of the Indian Evidence Act. Learned SPP during the course of arguing this point, made the submission that the statement is having the signature of the competent officer and the signature itself is to be treated that it is a certification as required under Section 65B of Indian Evidence Act.
17. In this connection, let me refer to the oral evidence of PW-5 at para No.23 (page 79 of paper book) of his deposition, wherein he has stated that in respect of N.P.16 prescribed that “there is no signature of the complainant and the person who typed it, so also the signature of the Investigating Officer.” He admitted the suggestion about keeping the bribe amount in the table drawer of the accused person is not at all recorded in the recorder. He said yes for the said suggestion. But however, he denied the next suggestion that the amount was not at all kept in the said drawer of the table and it was not recorded in the said recorder. Therefore, looking to this aspect and his deposition, in the next sentence that button camera and the voice recorder were not at all seized by him, this also goes to show the important material piece of evidence according to the prosecution case is also not seized as per the evidence of the Investigating Officer. He further deposed at the end of para-24, that as per Section 65B of the Indian Evidence Act, for using the electronic equipment as evidence, there is no certification. So this itself clearly goes to show the very Investigating Officer himself admitted that there is no such certification to the said document. In view of the contention of the learned SPP that, the mere signature itself to be treated as certification could not be accepted at all. Therefore, looking to the legal aspect in this matter, the mandatory requirement of Section 65B of the Indian Evidence Act, when the button camera entries and the voice recorder entries are out of consideration then the only material available on record is the evidence of PW1, the complaint and even with regard to the evidence of the complainant is concerned, I have already made a reference, that his evidence is not worth believable, it is also not in consonance with the words stated in the trap mahazar proceedings. It is contrary to the contents of the trap mahazar proceedings. As I have already observed above, the complainant himself is not definite about the amount that he has agreed to pay. At one breath, he deposes that he agreed to pay Rs.3,000/- and at another breath he deposes he agreed to pay Rs.8,000/- but he stated before the Lokayuktha that he produced Rs.5,000/-
. Considering these aspects of the matter, there is no consistency in the evidence of the prosecution witness, more particularly the complainant PW1. Apart from that, as per the request of the public prosecutor, PW1-
complainant was treated as a hostile witness and he has been cross examined by the learned Public Prosecutor. Learned Public Prosecutor goes on making suggestion of the prosecution case to the witness and he goes on saying yes to all the suggestions. When a person is not definite in his stand and he is giving the answer both ways, it is not safe for the court to rely on evidence of such witness for the purpose of appreciating the material. Even with regard to the time at which they went to the office of the accused on 16.12.2010 for the purpose of the trap proceedings, there is no consistency in the time as deposed by the PW1, so also the Investigating Officer. Even looking to PW1 evidence in the cross examination by the learned defense counsel in para No.17 of the deposition, he admitted that the accused told before the Investigating Officer that when he was looking into the file, forcibly the complainant put the amount into the drawer of the table and he has not demanded any amount and the accused person told the same before the police and when he was enquired about this, the witness No.1 said yes. This also probabilises the defense of the accused person that he has not received the bribe amount and it is the complainant who put it in the table drawer. Looking to the evidence of PW4, another panch witness regarding the time they went to the office and the time mentioned is 8:30 a.m., but the time mentioned in the trap mahazar proceedings is that they have left and reached the place at 10:05 a.m. and even this witness also deposed in para -15 of his deposition that when they went, the complainant told immediately to the Lokayuktha Police that the amount is in the drawer. Another important aspect is, looking to the evidence of PW1 and PW4 when it is stated before the Investigating Officer that as the accused has not received the amount the amount was kept in the table drawer. Even after that, instead of taking out the amount, the hands of the accused person were washed in the Sodium Carbonate Solution. Therefore, it raises a reasonable doubt in the mind of the Court that the evidence of the prosecution witnesses more particularly, the complainant so also the panch witness PW4 are not acceptable one. In the very paragraph -15, the witness deposed that with the help of Thontadarya the amount was taken out from the drawer and thereafter the hand wash of the accused was taken and when the suggestion was made by the defense that the hand wash of the accused was not taken in Sodium Carbonate solution, the said suggestion has been denied by a witness PW4 and this raises a doubt in the mind of the Court regarding their very presence during the alleged trap mahazar proceedings.
18. When it is the case of the prosecution that the amount kept in the drawer was taken out by Thontaradbya as per instructions of the Investigating Officer, where the tainted currency notes were kept in the drawer, that place was also cleaned with cotton and when the cotton was washed in Sodium Carbonate solution, it turned into pink colour. Then, in that case, it was necessary for the prosecution to examine the said Thontaradhya, as a witness. But in this case, the said witness has not been examined before the Court during the trial. A perusal of the materials placed on record clearly goes to show that the learned Special Judge has not at all considered the materials placed on record and wrongly arrived at the conclusion to convict and to hold that the accused person committed the offence of demanding and accepting the bribe amount.
19. Now going to the sanction aspect, there are two sanction orders. On earlier occasion also there was one sanction order produced by the prosecution. Learned Special Judge discharged the accused from the proceedings holding that there is no valid sanction order.
In this connection, the learned Senior Counsel during the course of arguing the matter submitted that the learned Special Judge gave a direction to the authorities to issue the sanction order. Hence, it is contended by the learned Senior Counsel that the Court was not supposed to make such order of direction to the authorities to issue the sanction order. It is because of such direction given by the Court, the subsequent sanction order has been issued. In this connection, to gain support for his submission, learned Senior Counsel drew the attention of this Court to Page-146 of paper book and submitted that at Clause (h) it is mentioned as under.
“Legal opinion suggests that sanction, if accorded in these cases, will not create any precedent as the same is as per the direction of the Special Court.”
20. So this clearly goes to show while considering the sanction the direction issued by the Court was also working in the mind of the authorities who was supposed to consider the material and issue the sanction order and also the extract of the proceedings passed by the Board at its 81st meeting held on 16.08.2012 at Corporate Office, Cauvery Bhavan, Bengaluru. On Page 145, in second paragraph, it is stated “The Board deliberated on the judgment of the Special Court, Bangalore and legal opinion furnished by the Advocate Sri. B.C. Prabhakar.” In this connection, learned Special PP tried to make out a case that the legal opinion obtained is only with regard to know who is the competent authority to issue sanction order. The said contention of the learned SPP cannot be accepted because of the reason that there is no specific reason mentioned in the legal opinion and it cannot be taken only for a limited purpose of who is the competent authority to issue the sanction order. Apart from that, even looking to the other material, i.e., the evidence of PW3, the person examined in this connection with the issuance of the sanction order is one Muddu Mohan. No doubt in examination-in-chief, he deposed that on 03.12.2012 he received the requisition in their office for issuance of the sanction order and it was accompanied by all the materials as deposed in his evidence, in detail, the said materials were placed before the KPTCL Board on 16.01.2012, and the Board as per the majority of 15:13 verified the documents in detail and prima facie as it appeared there is involvement of the accused person in demanding the bribe amount for prosecution of the said case, he was authorized by the Board and in view of the said authorization, he issued the sanction order dated 01.03.2012. He has sent the sanction order Ex-P3 and his signature as Ex-P3A and the proceedings of the Board as per Ex-P4. In the cross examination, he denied the suggestion that on 22.03.2012, KPTCL board authorized him to issue the sanction order but he deposed that on 16.01.2012, he was authorized to issue the sanction order. But in the very next sentence he admitted that on 22.03.2012, the proceedings of the Board were issued authorizing him to issue the sanction order. When the authorization itself is on 22.03.2012 by the Board to PW3, how he issued the sanction order much earlier i.e., on 01.03.2012 is to be examined. In the further cross examination, he himself has admitted at the end of para No.3 of the cross examination that before the Board authorized him to issue sanction order, he was not having said authority so there is a clear admission by PW3 himself that, before he was authorized by the Board, he was not having said authority to issue sanction order. Even it is stated on the next page at para-3 that on the basis of deposition in para -3 there is no mention as to whether the accused demanded bribe amount from him, when and how much amount, is not mentioned in the sanction order. Witness said yes. Therefore, looking to the very evidence of PW3, the submission made by the learned senior counsel gains support relying upon the decision reported in (2015) 15, SCC, 629 para 18 of the said decision is relevant and it reads as:
“18. In this regard it would be useful to refer to the decision of this Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622: 1997 SCC (Cri) 1120: 1997 SCC (L&S) 1784, which reads thus: (SCC p.632, Para 19) “19. Since the validity of ‘sanction’ depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration.
If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority ‘not to sanction’ was taken away and it was compelled to act mechanically to sanction the prosecution. ”
21. Therefore, considering these aspects of the matter and the legal position, I am of the opinion, that the appellant/accused is able to establish that the sanction order relied upon by the prosecution in this case, is not a valid sanction order and is not in accordance with provisions of Section 19 of the Prevention of Corruption Act and it goes to show that it was issued mainly because of the direction issued by the Court while discharging the accused in the first instance. All these factual aspects discussed above were not at all considered properly by the learned Special Judge. Therefore, the judgment and order of conviction passed by the learned Special Judge is not in accordance with the materials placed on record. There is a blatant illegality in coming to such a conclusion by the learned Special Judge.
22. Hence appeal is allowed. The judgment and order passed by the learned Special Judge is hereby set aside. The appellant accused is acquitted of both the charges i.e., Section 7 and Section 13(1)(d) read with 13(2) of Prevention of Corruption Act. His bail bonds stand cancelled. The fine amount deposited, if any be refunded to the appellant accused.
Sd/- JUDGE Cs/BVK