State of Karnataka Vs Sri. C. J. Prabhakar

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4TH DAY OF MARCH, 2025

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BEFORE

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THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No.1828/2019

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BETWEEN :

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State of Karnataka Represented by Police Inspector Karnataka Lokayuktha Bengaluru – 560 001.

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… Appellant

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(By Sri Venkatesh S Arabatti, Advocate)

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AND :

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Sri C J Prabhakar Son of Sri Jogi Gowda Aged about 34 years Sub Registrar Rajarajeshwarinagara – 560 098.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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Resident of No.8, 18^th ‘A’ Cross Arogya Nilaya, Hebbala, Kempapura Bengaluru – 560 024.

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Sri G Chandrappa @ Chandregowda Son of Sri Javaregowda Aged about 51 years

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Thimmasandra Village Lalaghatta Post, Channapattana Taluk Ramanagara District – 562 159.

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3. Sri Nataraj

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Son of Sri Narasimhaiah Aged about 40 years Second Division Assistant Office of the Sub Registrar Rajarajeshwarinagara Bengaluru - 560 098.

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Resident of No.347/1, 2^nd Main Jagajyothinagara Layout, Mariyappanapalya Bengaluru – 560 021.

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… Respondents

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(By Sri P P Hegde, Senior Counsel for Sri Sangamesh R B, Advocate for R1 V/o dtd. 27.02.2025, appeal against R2 abated. Sri K R Srinivasa, Advocate for R3)

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This Appeal is filed under Section378(1) and (3) Cr.P.C praying to grant leave to file the appeal against the judgment and order of acquittal by the judgment dated 09.02.20218 passed by the court of the LXXVII Additional City Civil and Sessions Judge, (PCA) Bengaluru in Spl. C.C.No.134/2011 and etc.,

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This Criminal appeal having been heard and reserved for Judgment, this day, Shivashankar Amarannavar J , delivered the following;

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JUDGMENT

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This appeal is filed by the Karnataka

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Lokayukta Police, Bengaluru challenging the judgment of acquittal dated 09.02.2018 passed in Spl.C.No.134/2011 by the LXXVIII Additional City Civil and Sessions Judge and Special Judge(PCA), Bengaluru, whereunder respondents have been acquitted for offences punishable under Sections 7, 8, 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “P.C. Act” for brevity) and Sections 201 and 120-B of Indian Penal Code (hereinafter referred to as “IPC” for brevity).

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The brief facts of prosecution case are as under:

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The complainant – K.M. Manjunath (P.W.1) has given a complaint on 30.12.2010 before the Lokayukta

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Police stating that he is working as Registration Assistant with an advocate in Sri Vinayaka Enterprises and is assisting parties in registering documents and on 23.12.2010, Rafiq Ahmed came to him and has informed that a sale deed of property purchased by his father-in-law –Chand Pasha is to be registered and on the same day, the sale deed was registered in the office of Sub-Registrar, Raja Rajeshwarinagara, Bengaluru. At that time, accused No.1 who was the Sub-Registrar, called the complainant and asked him to pay Rs.30,000/-. The complainant informed Rafiq Ahmed about the demand by accused No.1, but Rafiq Ahmed was not ready to give the amount. Accused No.1 asked complainant to somehow arrange the amount and told that if amount is not paid, he knows what to do when he again brings documents for registration in future. Thereafter, on 27.12.2010, when

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the complainant met accused No.1, he again demanded amount and complainant by promising to pay the amount, took the sale deed and gave it to Rafiq Ahmed. Thereafter, accused No.1 contacted complainant over phone and demanded the bribe amount. Again on 29.12.2010, accused No.1 called complainant and demanded bribe and conversation has been recorded and on the same day evening accused No.2 – Chandrappa who is a private person assisting in the office of the Sub-Registrar has called the complainant and asked him to pay amount and this conversation is also recorded. With these averments, the complainant has given complaint to the Lokayukta Police Inspector along with C.D. containing recorded conversation and after registering complaint in Crime No.70/2010, the Lokayuktha Police have sent FIR to the Court. Lokayukta Police by securing two panchas

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conducted pre-trap proceedings and on the same day made arrangements to trap the accused. The trap was laid, trap procedure has been followed and trap mahazar was drawn. After completion of investigation and after obtaining sanction to prosecute accused Nos.1 and 3 from the competent authority, charge sheet has been filed against accused Nos.1 to 3 for offences punishable under Sections 7, 8, 13(1)(d) read with 13 (2) of the P.C. Act and Sections 201 and 120 – B of IPC.

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The trial Court took cognizance against accused persons for aforesaid offences. The trial Court has framed charges for the aforesaid offences. In order to prove charges, the prosecution has examined eleven witnesses as P.W.1 to P.W.11, got marked documents as Ex.P.1 to Ex.P. 35 and material objects as M.O. 1 to M.O. 24. Ex.D1 and Ex.D2 are two photos got marked

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by defence. The statements of accused persons have been recorded under Section 313 of Cr.P.C. Accused No.1 has given his statement in writing and produced documents at the time of recording his statement under Section 313 of Cr.P.C. The learned Special Judge after hearing arguments on both sides has formulated points for consideration and acquitted respondents – accused Nos.1 to 3 by the impugned judgment. The said judgment has been challenged by the Karnataka Lokayukta Police, Bengaluru in this appeal.

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Heard learned counsel for the appellant, learned Senior Counsel for respondent No.1 and learned counsel for respondent No.3. Respondent No.2 –accused No.2 who was private person has been reported to be dead and the appeal against him came to be dismissed as abated.

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5. Learned counsel for the appellant would

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contend that the impugned order is opposed to law and is contrary to the material evidence on record. Learned trial Judge has erred in coming to the conclusion that since the sale deed was already given to P.W.1, there was no work pending with accused No.1. The learned Judge has failed to appreciate that if the illegal gratification is relatable to any official work, pending or otherwise the offence is attracted. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Sita Soren Vs Union of India¹ . The learned trial Judge has erred in coming to the conclusion that the demand for the bribe amount has not been proved by the prosecution on ground that the mobile number stated in the complaint –Ex.P1 does not belong to accused No.1. Learned trial Court has erred

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1 Reported in (2024) 5 SCC 629

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in rejecting transcriptions (Ex.P12 and Ex.P.13) of C.D.

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on the ground that same are not sent for expert opinion and the source of recording C.D. itself is not properly explained and established. He further contended that learned trial Judge has erred in relying on the judgment of Hon’ble Apex Court in the case of Anwar P.V. Vs P.K Basheer and Others² , delivered on 18.09.2014 which has been rendered after filing the charge sheet in this case. As on the date of submission of the charge sheet, the judgment of the Hon’ble Apex Court in the case of State (N.C.T of Delhi) Vs Navjot Sandhu³ was applicable. The learned trial Court has failed to appreciate that though demand of bribe amount is proved by evidence of P.W.1, there is no evidence of demand of bribe by accused Nos.1 and 2 on 27.12.2010 and 29.12.2010 by phone which is hair

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2 Reported in (2014) 10 SCC 473

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3 Reported in AIR 2005 SC 3820

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splitting argument. The learned trial Judge has given benefit of doubt stating that huge demand of Rs.30,000/- for registration of single sale deed is unbelievable. The learned trial Judge has failed to appreciate the evidence of P.W.1 which is clear, cogent and sufficient to prove the case of the prosecution. Learned trial Judge has given much credence to nonrecovery of Rs.25,000/- of the tainted notes. The learned trial Judge has erred giving benefit of the doubt to the accused after watching video recorded in C.D - M.O.19 on the ground that series doubts are raised about the hand wash procedure. Learned Judge has wrongly come to the conclusion that accused Nos.1 and 2 were not in possession of tainted currency notes and demand for illegal gratification is not established.

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The demand and acceptance of bribe has been established by evidence of P.W.1 and P.W.3. The

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trial Court ought to have considered the presumption under Section 20 of the P.C Act. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of M. Narsingh Rao Vs State of Andra Pradesh⁴ . He contends that statements of P.W.1 and P.W.2 have been recorded under Section 164 of Cr.P.C and they both admit giving statement before the Magistrate. Learned trial Judge has failed to take into consideration said statements of P.W.1 and P.W.2 recorded under Section 164 of Cr.P.C which are at Ex.P.4 and Ex.P.10 respectively. Even though, P.W. 2 has turned hostile, the statement given by him before the Magistrate under Section 164 of Cr.P.C as per Ex.P10, requires to be considered. On that point he placed reliance on the decision of the Hon’ble Apex Count in the case of Vinod Kumar V State of

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4 Reported in (2001) 1 SCC 691 / AIR 2001 SC 318

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Punjab⁵ . He contended that considering the entire evidence on record, the prosecution has proved the demand and acceptance of bribe by accused persons. Therefore, the judgment passed by the trial Court is perverse and the Appellate Court has power to reverse the judgment of the trial Court. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Chandrappa Vs State of Karnataka⁶ . He also placed reliance on the decision of the Hon’ble Apex

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Court in the case of Hazari Lal Vs State (Delhi Administration)⁷ on the point that evidence of Police officer who laid trap can be accepted by the Court in corroboration. He further submits that without considering all these aspects learned Special Judge has erred in acquitting respondents- accused Nos. 1 to 3.

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5 Reported in (2015) 3 SCC 220

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6 Reported in (2007) 4 SCC 415

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7 Reported in AIR 1980 SC 873

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On these grounds he prays to set aside the impugned judgment and convict respondents -accused Nos. 1 to 3 for the offences charged against them.

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Learned Senior counsel for respondent No.1 would contend that the trial Court gave reasons and findings and they are not perverse. He further submits that reasons and findings recorded by the trial Court are correct and the Appellate Court cannot interfere in the appeal filed challenging the judgment of acquittal. He further argued that certificate under Section 65-B of Indian Evidence Act regarding the C.D. M.O.6 and M.O.16 are not produced and therefore contents of M.O.6 and M.O.16 are not authentic. The contents reduced in writing as per Ex.P12 and Ex.P.13 are not scientific. Placing reliance on the decision of the Hon’ble Apex Count in the case of Arjun Panditrao Khotkar

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Vs Kailash Kushanrao Gorantyal and Other⁸

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learned Senior counsel submits that the production of certificate under Section 65-B of the Indian Evidence Act is mandatory as secondary evidences has been produced in the form of C.D. - M.O.6 and M.O. 16. The prosecution has to either produce original or if secondary evidence is produced they have to furnish certificate under Section 65-B of Indian Evidence Act. He further contends that the work of the complainant i.e., registration of the sale deed and handing over of the original sale deed was over prior to the complaint and therefore, no work was pending with accused persons. Learned Senior counsel placing reliance on the decision of the Hon’ble Apex Court in the case of

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Roopawanti Vs State of Haryana and Others⁹

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would contend that in order to exercise powers to

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8 Reported in (2020) 7 SCC

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9 Reported in 2023 SCC OnLine SC 179

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reverse an acquittal, the order of trial Court is to be not only erroneous but also perverse and unreasonable. He further submits that documents produced along with statement recorded under Section 313 of Cr.P.C will itself clearly establish enmity of complainant-P.W.1 with accused No.1 as accused No. 1 has delayed the registration of documents of the complainant -P.W.1 for want of material document i.e., sketch. He further submits that accused No.1 has been exonerated in departmental enquiry, whereunder charges are similar. On these grounds, he prays for dismissal of the appeal.

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Learned counsel for respondent No.3 would contend that there is no recovery of any tainted currency or hand wash of accused No.3. Accused No.3 had applied for half day casual leave and he was not present at the time of trap in the office. P.W.11 has not investigated by going to the house of accused No.3 for

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recovery of Rs.25,000/- of bribe amount alleged to have been carried by accused No.3. Accused No.3 has also been exonerated in departmental enquiry wherein charges are similar. He submits that trial Judge has rightly acquitted accused persons by well reasoned judgment and there are no grounds for interfering with the judgment of the trial Court. On these grounds, he prays for dismissal of the appeal.

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Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. Considering the grounds urged, the point that arises for my consideration is:

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“Whether learned trial Judge has erred in passing the judgment of acquittal of respondents –accused Nos.1 to 3 for offences punishable under Sections 7, 8, 13(1)(d) read with 13 (2) of the P.C. Act and Sections 201 and 120–B of IPC?”

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10. My answer to the above point is in the Negative for the following reasons.

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P.W.1 was working as Assistant to the Deed Writer and getting documents registered in the office of Sub-Registrar, Rajarajeshwari Nagar, Bengaluru. P.W.1 has registered several documents in the office of Sub-Registrar, Rajarajeshwari Nagar, Bengaluru. It is the evidence of accused persons that there was enmity between P.W.1 and accused No. 1 as sale deed got registered by P.W.1 pertaining to his client was kept pending for want of sketch and accused No. 1 had issued notices. Said document got registered by P.W.1 dated 06.08.2007 registered on 13.08.2007 has been produced along with the statement of accused No. 1 while recording his statement under Section 313 of Cr.P.C. Said notices issued by accused No. 1 dated 13.08.2010 and 09.11.2010 are also produced at that time. On perusal of the said sale deed there is signature of P.W.1 as a witness to the sale deed. As there is delay in releasing

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the said sale deed for more than 3 years, P.W.1 who was angry against accused No. 1 – Sub-Registrar, insisted the Sub-Registrar to release the document even in the absence of production of sketch. P.W.1 in his cross-examination has admitted that document placed by him was not registered for want of sketch and that was even before accused No.1 assuming charge. Said two notices dated 13.08.2010 and 09.10.2010 indicate that the said document produced for registration by P.W.1 was kept pending for want of sketch and it was about a month prior to the alleged complaint. Considering the said aspect the accused have raised a probable defence that there was grudge by P.W.1 against accused No. 1. It is the contention of the accused persons that as there was grudge P.W.1 has filed a false complaint against the accused. In the light of the said defence, evidence of the prosecution requires careful consideration in order to ascertain whether the prosecution has proved its case beyond all reasonable doubts and whether the learned

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trial Judge has rightly appreciated the evidence on record or not.

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P.W.1 had presented a sale deed of relative of P.W.2 for registration and it was registered on 23.12.2010. As per Ex.P.1 – complaint, after registration, accused No. 1 called P.W.1 and asked him to pay Rs.30,000/- and again on 24.12.2010 and 27.12.2010 when P.W.1 went to receive the registered document, accused No. 1 demanded amount and even he made phone call to P.W.1 demanding bribe. P.W.1 has stated in his evidence and also in the complaint – Ex.P.1 that he received the document on 27.12.2010. P.W.2

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– Rafiq Amhad whose relative has registered the document has stated that on the date of registration itself, i.e., on 23.12.2010 C.W.5 has received the registered sale deed. Copy of the certificate obtained under RTI Act has been produced by accused No. 1 at the time of recording his statement under Section 313 of Cr.P.C. to show that C.W.5

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Chand Pasha has received the original registered

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document on 23.12.2010 and he has also certified that no papers pertaining to the said document were retained by the Sub-Registrar. As the registered document was already given to C.W.5, there was nothing more to be done by accused No. 1 with regard to said sale deed of C.W.5 – Chand Pasha. There is no allegation either in the complaint or in the evidence that at the time of registration of sale deed of C.W.5, accused No. 1 demanded bribe or had refused registration without payment of bribe. As per P.W.1, after registration of the document, the SubRegistrar, i.e., accused No. 1 had called him and asked him to pay bribe. P.W.1 in his evidence and also in Ex.P.1 – complaint has stated that document was given to P.W.2 by accused No.1 and at that time accused demanded the amount. Considering the same, as on 30.12.2010 – the date of complaint, registered document was already given and there was no work pending with accused No. 1 – SubRegistrar with regard to the said document. The scope of

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demanding bribe would arise if there is possibility of doing any official favour to the complainant. In respect of document of C.W.5, there is no possibility of accused Nos. 1 to 3 doing any official favour to P.W.2 or C.W.5 as the work was already done. Therefore, there is no scope for the accused to demand bribe. Therefore, the prosecution has failed to show that there was some work of complainant or his customer pending at the time of lodging the complaint and that was to be attended by the accused. The possibility of the accused doing an official favour to the complainant as on that day is also not made out by the prosecution.

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Learned counsel for appellant placing reliance on the decision of the Hon’ble Apex Court in the case of Sita Soren (supra) has contended that pendency of work is not the criteria and in the said decision it is held as under:

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“ 122. Under Section 7 of the PC Act, the mere "obtaining", "accepting" or "attempting" to obtain an undue advantage with the intention to act or forbear

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from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The First Explanation to the provision-further strengthens such an interpretation when it expressly states that the "obtaining, accepting, or attempting" to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained.

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123. It is trite law that illustrations appended to a section are of value and relevance in construing the text of a statutory provision and they should not be readily rejected as repugnant to the section. The illustration to the First Explanation aids us in construing the provision to mean that the offence of bribery crystallises on the exchange of the bribe and does not require the actual performance of the act. It provides a situation where "a public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section."

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It is clear that regardless of whether S actually processes the ration card application on time, the offence of bribery is made out. Similarly, in the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete.

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124 . Even prior to the amendment to the PC Act in 2017, Section 7 expressly delinked the offence of bribery from the actual performance of the act for which the undue advantage is received. The provision reads as follows:

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"7. Public servant taking gratification other than legal remuneration in respect of an official

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act .- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice

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to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to seven years and shall also be liable to fine.

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Explanations.- (a)-(c) * * *

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(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression." (emphasis supplied)

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125. The unamended text of Section 7 of the PC Act also indicates that the act of "accepting", "obtaining", "agreeing to accept" or "agreeing to obtain" illegal gratification is a sufficient condition. The act for which the bribe is given does not need to be actually performed. This was further clarified by Explanation (27) to the provision. In explaining the phrase "a motive or reward for doing", it was made clear that the person receiving the gratification does

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not need to intend to or be in a position to do or not do the act or omission for which the motive/reward is received.

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126. XXX XXX XXX

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127. Recently, in Neeraj Dutta v. State (NCT of Delhi) a Constitution Bench listed out the constituent elements of the offence of bribery under Section 7 of the PC Act (as it stood before the amendment in 2017). B.V. Nagarathna, J. formulated the elements to constitute the offence: (SCC p. 749, para 5)

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"5. The following are the ingredients of Section 7 of the Act:

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(i) the accused must be a public servant or expecting to be a public servant:

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(il) he should accept or obtain or agrees to accept or attempts to obtain from any person;

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(iii) for himself or for any other person;

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(iv) any gratification other than legal remuneration; and

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(v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.”

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Consequently, the actual “doing or forbearing to do” the official act is not a constituent of the offence. All that is required is that the illegal gratification should be obtained as a “motive or reward” for such an action or omission whether it is actually carried out or not is irrelevant.”

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In the said case it is held that what is required is that the illegal gratification should be obtained as a motive or reward for such an action or omission and whether it is actually carried out or not is irrelevant. In the said case bribe was obtained and in furtherance of the same, the promised act was not done. In the case on hand the demand of bribe is not regarding any act to be done by the accused. Considering the said aspect the said decision is not applicable to the facts of the case on hand. Even if the alleged demand of bribe is not met, the accused cannot do anything with regard to registration of sale deed of C.W.5 as the said work was already over.

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In Ex.P.1 – complaint it is stated that P.W.1

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informed about demand of bribe by accused No. 2 to P.W.2, but, he was not ready to pay and thereafter, on 27.12.2010, when P.W.1 went with P.W.2 to take the registered document, accused No. 1 demanded bribe of Rs.30,000/-. As per Ex.P.1 – complaint in the evening of 27.12.2010 accused No. 1 called P.W.1 through his mobile and demanded bribe amount and again on 29.12.2010 accused No. 1 and even accused No. 2 called P.W.1 on mobile and demanded bribe amount and that has been recorded. P.W.2 has not stated anything about such demand made by accused No. 1 in his presence. P.W.1 in his evidence has not stated about accused No. 2 calling him and demanding bribe amount on 29.12.2010. As per the evidence of P.W.1, he has received phone call on 29.12.2010 from accused No. 1 and on the same day he lodged the complaint. P.W.1 has stated that he has received phone call from mobile phone of accused No. 1

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demanding amount and he has recorded the said conversation in the voice recorder which was given to him by P.W.11. P.W.1 had met P.W.11 on or before 29.12.2010, taken the voice recorder, then recorded the conversation dated 29.12.2010 and then converted it into CD. P.W.1 has stated that contents of the voice recorder have been transmitted on a sheet of paper by the Lokayuktha Police staff. However, P.W.11 has stated that P.W.1, for the first time, appeared before him on 30.12.2010, i.e., on the date of complaint. P.W.11 has denied that P.W.1 met him on 27.12.2010 and 29.12.2010. Therefore, the evidence of P.W.1 that he met the Lokayuktha Police on 27.12.2010 and 29.12.2010 is not corroborated by evidence of P.W.11.

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P.W.11 has stated that P.W.1 had brought the recorded CD and that was played at the time of pre-trap mahazar – Ex.P.2. But, P.W.1 in his cross-examination has stated that in the Lokayuktha office the conversation was transmitted into CD. What was the instrument with which

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P.W.1 recorded his conversation with the accused, when, where and how he recorded the conversation and when he transmitted the conversation recorded to CD is not made clear. P.W.11 has admitted that he has not seized the mobile to which accused Nos. 1 and 2 had made calls and spoke with P.W.1 and in which the conversation of accused was recorded. Even the voice recorder stated by the complainant is not produced before the trial Court. Ex.P.12 and Ex.P.13 are transcriptions from CD produced by P.W.1. What was the source of recording to CD itself is not explained and established. Therefore, the transcriptions which are at Ex.P.12 and Ex.P.13 from CD would not help the prosecution to prove the alleged demand of bribe by the accused.

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The mobile number of accused No. 2 with which he made call to P.W.1 has not been mentioned in Ex.P.1 – complaint. The mobile number of accused No. 1 which is stated to be used to make a phone call to P.W.1 has been

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mentioned in the complaint – Ex.P.1. The call details of the said mobile is at Ex.P.31. Said mobile number mentioned in Ex.P.1 is in the name of one Nagaraj. P.W.11 has not obtained the details of Nagaraj in his investigation. Said mobile which is alleged to have been used by accused No. 1 to speak with P.W.1 is not in the name of accused No. 1. There is no evidence to link this Nagaraj with accused No. 1. The report given by the District Registrar, as per Ex.P.27, that accused No. 1 was using the said mobile number has no basis and author of the said report has not been examined. The mobile number which is mentioned in Ex.P.1 from which P.W.1 has received call demanding bribe is not the mobile of accused No. 1 and it is not standing in his name. The alleged voice of accused No.1 contained in the CD produced by P.W.1 has not been sent for expert’s opinion and the same has been admitted by P.W.11.

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The trial Court has observed that certificate under Section 65-B of the Indian Evidence Act has not been

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produced with regard to the CDs which are at M.O.6 and M.O.16. The trial Court relying on the decision of the Hon’ble Apex Court in the case of Anwar P.V. Vs. P.K. Basheer and others reported in 2015 (1) SCC (Cri) 24 has held that CDs produced are secondary evidence of electronic records and as no certificate under Section 65-B of the Indian Evidence Act has been produced, the contents of the said CD cannot be admitted in evidence. Learned counsel for respondent placing reliance on the decision of the Hon’ble Apex Court in the case of Arjun Panditrao (supra) contends that certificate under Section 65-B of the Indian Evidence Act is mandatory to admit secondary evidence of electronic evidence. Learned counsel for appellant would contend that the decision in the case of Anwar P.V. and Arjun Panditrao (supra) are subsequent decisions and the decision which was prevailing as on the date of charge sheet was in the case of Navjot Sandhu (supra) and therefore, those decisions cannot be

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applied retrospectively. The Hon’ble Apex Court has interpreted Section 65-B of Indian Evidence Act in the said decisions and has not laid down new law. Section 65-B of the Indian Evidence Act was in force as on the date of filing of charge sheet. The interpretation of the said provision subsequently by the Hon’ble Apex Court cannot be said to be prospective. The CD produced is said to contain the conversation copied in it from a device i.e., voice recorder or Pen Spy Camera and the primary evidence would be voice recorder or Pen Spy Camera. The voice recorder or Pen Spy Camera can easily be produced as primary evidence. In the case of Navjot Sandhu (supra) the secondary evidence which was produced was call details copied from server which cannot be easily produced. In the case on hand the voice recorder or Pen Spy Camera can be easily produced. Even if the CD is produced, it has to be

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accompanied by certificate as required under Section 65-B of Indian Evidence Act and the said certificate has not been produced by the prosecution.

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In the case on hand the bait amount is Rs.30,000/-. As per Ex.P.2 – pre trap mahazar said bait amount was kept in the pant pocket of P.W.1 with an instruction to give it to the accused on demand by the accused as a whole, i.e., in the entirety. As per the evidence of P.W.1 he gave Rs.25,000/- initially to accused No. 2 and subsequently, he gave another sum of Rs.5,000/- to accused No. 2. At what point of time P.W.1 has bifurcated the bait amount of Rs.30,000/into Rs.25,000/- and Rs.5,000/- has not been made clear. P.W.11 who has recorded the statement of P.W.1 has not asked him regarding the same. Therefore, P.W.1 has handled the bait amount applied with

¶140

34

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phenolphthalein powder prior to he handing it over to the accused persons.

¶142

chamber of accused No. 1. It is suggested to the prosecution witnesses that P.W.1 sent Rs.25,000/- with P.W.2 and he came out of the chamber of accused No.1. Said amount of Rs.25,000/- has not been recovered. It is alleged that accused No. 3 took Rs.25,000/- and he was not available in the office and P.W.11 made search, but, he could not trace accused No. 3. As per the evidence of P.W.1 he gave cash of Rs.25,000/- to accused No. 2 as instructed by accused No. 1 and again accused No. 2 demanded Rs.5,000/and P.W.1 gave him Rs.5,000/-. After receiving cash of Rs.30,000/- accused No. 2 went out of the office of accused No. 1 and accused No. 3 entered inside the chamber of accused No.1 and went away. The

¶143

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evidence of P.W.1 does not indicate that Rs.25,000/has been handed over by accused No.2 to accused No. 3. The recovered amount of Rs.5,000/- was also kept on a chair along with a kerchief and not from the possession of accused No. 2.

¶145

The trial Court, on perusal of video

¶146

recordings in C.D. – M.O. 19, has observed that at the time of raid when the right hand fingers of accused No.2 were washed in the solution, one of the trap team

¶147

member has put his index finger in the solution and right hand wash solution turned into pink colour and there is no drastic change in the left hand wash solution. As per Ex.P.3 – trap mahazar accused No.2 has counted the money given by P.W.1 with both hands. If that is so, then even the left hand wash solution of accused No. 2 should have turned into pink colour. Considering the said aspect the learned trial

¶148

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Judge has rightly doubted about the genuineness of the said hand wash procedure followed in the trap proceedings. Considering the said aspect, recovery of tainted notes from the accused has not been proved and the same has been rightly observed by the trial Court. Considering the said aspect, the demand and acceptance of bribe has not been established beyond reasonable doubt. Therefore, presumption under Section 20 of the P.C. Act cannot be drawn. Even the statements of P.W.1 and P.W.2 recorded under Section 164 of Cr.P.C are not of much help to the prosecution as the evidence of P.W.1 and other witnesses is contradictory, more so, allegation of enmity and grudge has been made against P.W.1 as noted supra.

¶150

In the case of Chandrappa (supra), the Hon’ble Apex Court has held that in case of acquittal there is double presumption in favour of the accused.

¶151

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¶152

The appellant has failed to make out a case that the findings of trial Court are perverse and the evidence has not been appreciated properly.

¶153

In the case of Roopawanti (supra), the

¶154

Hon’ble Apex Court has held as under:

¶155

“9. Further, in the case of Suman Chandra v. Central Bureau of Investigation wherein the acquittal of the accused was challenged, this court held that while exercising its powers to reverse an acquittal, the order of the trial court must not only be erroneous, but also perverse and unreasonable. The relevant paragraph of the judgment is being extracted herein:

¶156

“It is well settled law that reversal of acquittal is permissible only if the view of the Trial Court is not only erroneous but also unreasonable and perverse. In our considered opinion, the view taken by the Trial Court was a possible view, which was neither perverse nor unreasonable, and in the facts and circumstances of the present case, ought not to have been reversed or interfered with by the High Court.”

¶157

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10. Similarly in the case of Mrinal Das v. The State of Tripura, this Court held that interference in a judgment of acquittal can only be made if the judgment is “clearly unreasonable” and there are “compelling and substantial reasons” for reversing the acquittal. The relevant paragraph of the judgment is being reproduced herein:

¶159

“ An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.”

¶160

Only if the trial Court has ignored the evidence or misread the material evidence or has ignored the material documents, the appellate Court is competent to reverse the decision of the trial Court.

¶161

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The view taken by the trial Court is a possible view, which is neither perverse nor unreasonable and in the facts and circumstances of the present case there are no grounds to reverse or interfere with the well reasoned judgment of the trial Court. Considering all these aspects, the appellant has not made out any grounds for setting aside the judgment of acquittal passed by the trial Court.

¶163

In the result, the appeal is dismissed.

¶164

Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP/LRS Ct.sm

State of Karnataka v. Sri. C. J. Prabhakar

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State of Karnataka v. Sri. C. J. Prabhakar

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