The State of Karnataka Vs C Rajagopal

C RAJAGOPAL AGE MAJOR REVENUE INSPECTOR ADVERTISEMENT DIVISION EAST ZONE, B B M P OFFICE, UTILITY BUILDING BENGALURU. R/AT NO 61, KOTTIGEPALYA MAGADI MAIN ROAD VISWANEEDAM POST BENGALURU - 560 091.

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…RESPONDENT

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THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C PRAYING TO A) GRANT LEAVE TO PROSECUTE THE APPEAL AGAINST THE JUDGMENT/DISCHARGE/ACQUITTAL ORDER DATED 05.01.2019 PASSED BY THE LXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (P.C.A) AT BENGALURU IN SPL.C.C.NO.321/2016. TO B) SET ASIDE THE JUDGMENT/ORDER DATED 05.01.2019 PASSED BY THE LXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL

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JUDGE (P.C.A) AT BENGALURU IN SPL.C.C.NO.321/2016. C) CONVICT THE RESPONDENT/ACCUSED FOR OFFENCE P/U/S.7 OF PREVENTION OF CORRUPTION ACT, 1988 AND CONSEQUENTLY SENTENCE THE RESPONDENT/ACCUSED FOR THE CHARGES LEVELED AGAINST HIM. SUBMITTED THE ADVOCATE FOR THE PETITIONER HAS NOT COMPLIED THE OFFICE OBJECTIONS EVEN AFTER LAPSE OF SIX WEEKS TIME.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the State represented by the Police Inspector, Karnataka Lokayuktha, being aggrieved by the Judgment of conviction and order on sentence dated 05.01.2019 passed in Special CC No. 321/2016 on the file of LXXVIII Additional City Civil Judge and Sessions Judge & Special Judge (P.C.A), Bengaluru (CCH 79) (hereinafter referred to as "trial Court") in and by which the trial Court has acquitted the accused from the charges levelled against him for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988.

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There is a delay of 902 days in filing the above appeal. In the affidavit accompanying the application, it is contended that the impugned judgment and order passed on 05.01.2019 and

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on receipt of the same, the matter was referred to the Government for approval, authorising to file an appeal. The file pertaining to the matter was entrusted to the panel advocate representing the Lokayukta-institution. That the process consumed time beyond the reasonable control of the person concerned and in the meanwhile there was COVID-19 pandemic situation. Hence the delay.

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Heard perused the records.

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The reasons assigned as noted above fall short of the requirement of Section 5 of the Limitation Act, 1963.

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Even on merits, the case of prosecution is that one Ramesh had lodged a complaint dated 17.03.2014 before the Lokayuktha Police alleging that he was carrying on the work of removing unauthorised posters, banners and buntings in the Bengaluru East Zone of Bruhat Bangalore Mahanagara Palike from 2009 by obtaining the licence in the name of one K.S.Mailegowda-CW4. That complainant- PW1 was receiving the cheques from the office of BBMP as per the bill submitted in the name of said Mailegowda-CW4 and was also presenting the

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same for encashment to the bank account of K.S.Mailegowda-

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CW4. That there were dues for 2 months payable by the BBMP to the complainant.

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That accused- C Rajagopal was working as a Revenue Inspector in the Advertisement Division of BBMP East Zone and was responsible for passing of the bills of the complainant. Though the complainant had visited his office 4 to 5 occasions, he had not prepared the bills. On 12.03.2014, complainant met the accused at his office and enquired about the bills, to which accused demanded Rs.30,000/- as bribe, which was reduced to Rs.20,000/-.The conversation ensued between the complainant

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and the accused was recorded in the mobile phone of the complainant and was thereafter transmitted into a compact disc. Since the complainant was not interested for payment of the bribe, he lodged the complaint dated 17.03.2014 before the Lokayukta Police along with the CD containing his conversation with the accused.

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On receipt of the complaint a case in Crime No. 07/2014 was registered. The police secured two panchas and made all arrangements to trap the accused on the same day. However,

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the said trap attempt failed as the accused was not available at his office. Thereafter on 18.03.2014, trap team went to the office of the accused in Utility building, M.G. Road. Even the said trap failed as accused did not come. As there was no likelihood of accused receiving the tainted notes, the trap plan was dropped. The investigation officer continued the investigation by collecting the sample voice of the accused and sent it for the expert's opinion. Thus on obtaining the opinion, final charge sheet was filed against the accused for the offence committed under Section 7 of the Prevention of Corruption Act, 1988.

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Charges were framed and on denial of charges by the accused trial was conducted. 5 witnesses have been examined under the prosecution as PW1 to PW5 and 20 documents were marked as Ex.P1 to Ex.P20 and 6 material objects were marked as MO.1 to MO6(a).

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Since accused had denied the incriminating material brought against him during the recording of Statement under Section 313 of Cr.P.C. the trial Court framed the point for consideration and on appreciation of the matter answered the

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same in a negative and consequently acquitted the accused of the offences as noted above.

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Perusal of the impugned order, more particularly

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paragraphs 11, 12, 13 and 17 indicate that the original licence holder for the purpose of carrying out the work of removal of unauthorised posters, banners, buntings was issued by BBMP in

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the name of one K.S. Mailegowda-CW4. Charan-PW3, has spoken that said K.S. Mailegowda-CW4 had in turn authorized him to do the work on his behalf. The complainant was only a driver of said K.S. Mailegowda-CW4. The trial Court taking note of this aspect of the matter and also referring to the statement of K.S. Mailegowda-CW4 recorded under Section 161 of Cr.P.C. during the investigation and the deposition of PW3 has come to the conclusion that the complainant had no work with the accused and according to CW4 and PW3, BBMP did not owe any amount whatsoever to the original licensee.

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The trial Court has also taken note of the defence setup by the accused that the complainant had attempted to create fake bills upon which a complaint was filed against him and to vindicate vengeance he had filed a false complaint against the

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accused. The trial Court has come to the conclusion that the genesis of the complaint itself had no basis and has therefore refused to accept the case of prosecution of the accused demanding bribe for payment of the bill to the complainant.

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The trial Court has further at paragraph 13 has found serious discrepancies and contradictions in the version of PW1 complainant and PW5- Investigation Officer. While PW1 has deposed that he had recorded the conversation in the voice recorder and had produced the same at the time of giving complaint by transmitting the same into a CD. However, as per the version of PW5, on 12.03.2014, PW1 had recorded his conversation with the accused in his mobile and transmitted to CD and produced the same before the Lokayukta Police. Though PW1 had stated that PW5 had given the voice recorder, PW5 has denied the same. The trial Court has found this fundamental discrepancy between the versions of PW1 and PW5 with regard to the very recording of alleged conversation ensued between the complainant and the accused to be unbelievable.

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Further though a certificate required under Section 65B(4) of the Indian Evidence Act, 1872 was produced as per Ex.P9, the same was produced after 2 years of complainant furnishing the CD to the Investigation Officer. As per contents of Ex.P9, the trial Court has noted that the same was issued by PW1 while according to the version of PW1 the voice recorder was converted into CD at the cyber centre and it was not done by PW1 as such he could not have issued Ex.P9 certificate. The trial Court has also taken note of the fact that the said Ex.P9 do not disclose in which cyber centre recording in the voice recorder in the mobile was transmitted into CD and it also does not mention the owner of the such cyber centre who had transmitted the recorded conversation of his mobile.

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Thus, on account of these serious discrepancies the trial Court has declined to accept the said material evidence. The trial Court has also taken note of the failed attempts to trap the accused. Since, the element of demand and acceptance has not been proved and established by the prosecution, the trial Court on aforesaid four counts has declined to accept the case of prosecution.

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