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Judgment
N. Ananda, J.—The appellant (hereinafter referred to as accused) was tried and convicted for offences punishable under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. Therefore, he is before this court. I have heard Sri. A.H. Bhagavan, learned counsel for accused and Sri. C.H. Jadhav, learned Senior Counsel for respondent-CBI.
The accused was tried for the following charges:
Firstly, that you accused-A. Ravi, while functioning as a Public Servant in the capacity of Inspector, Income Tax, Office of the Deputy Director (Investigations) Unit II (3), C.R. Building Annex, III Floor, Bangalore, on 3.9.2002 with an intention to derive undue pecuniary advantage for yourself by corrupt or illegal means, by abusing your official position as a Public Servant demanded an amount of Rs. 1,00,000/- as a bribe for doing an official favour for not causing trouble in the matters of Income-tax related to Sri C.V. Reddy''s business establishments and thereafter when the complainant expressed his inability to arrange such a huge amount, you reduced it to Rs. 35,000/- and agreed to receive the same on 7.9.2002 through a friend of C.V. Reddy by name Sri James and on that day when Sri James was waiting near the corner of the road opposite to Hotel Satyaprakash, S.C. Road, Seshadripuram, Bangalore, you accused came on a Yamaha motor-cycle and asked Sri James to sit behind you and proceeded towards a narrow road next to Nataraj Theater and there you demanded and accepted the bribe amount of Rs. 10,000/- from Sri James, friend of Sri C.V. Reddy, the complainant. In the presence of two independent witnesses, you were caught read handed while accepting the bribe of Rs. 10,000/- by way of cash and thereby, you have committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988 and within my cognizance.
Secondly, that you accused while functioning in the said capacity as Inspector, Income Tax, demanded and accepted a sum of Rs. 10,000/- as an illegal gratification other than legal remuneration from Sri James, a friend of Sri C.V. Reddy and the said amount was also recovered from you and thereby you have committed an offence of criminal misconduct which is punishable under Section 13(2) r/w Section 13(1)(d) of P.C. Act.
On behalf of prosecution P.W''s. 1 to 9 were examined and documents as per Ex. P1 to P 23 and material objects as per M.O''s. 1 to 10 were marked.
The learned trial judge on appreciation of evidence has answered the aforestated charges in affirmative to convict the accused for offences punishable under Section 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state certain facts which are not in dispute and the allegations made against accused.
During the year 2002, the accused was working as an Inspector of Income Tax in the office of Deputy Director (Investigation) Unit-II (3), C.R. Building, Bangalore.
At the relevant time, P.W. 7-C.K.K. Nair was working as Assistant Director of Income Tax (Investigation) Unit-III (1), C.R. Building, Bangalore. P.W. 8-Amol Kamath was working as Deputy Director (Investigations), Department of Income Tax at Bangalore.
On 03.09.2002, the raiding team led by P.W. 7- C.K.K. Nair conducted search in the premises of one B.G. Somashekar (not examined before the court) situate at S.C. Road, Sheshadripuram Bangalore. The raiding party consisted of one Mathew, Suresh Babu, Jamadar and the accused (Income Tax Inspector). In the aforestated premises, B.G. Somashekar was running Hotel Shiva International. P.W. 1-C.V. Reddy had taken the Basement floor of the said building on lease from B.G. Somashekar. P.W. 1 was intending to start a hotel under the name and style of "Anusha" and he had entrusted the work of interior decoration to P.W. 3-James who was an Interior Decorator.
The raiding party after searching the premises of B.G. Somashekar felt that he was carrying some business in the basement floor. Therefore, they searched the basement floor which was in occupation of P.W. 1-C.V. Reddy. On search and verification, they found that C.V. Reddy had taken the basement floor on lease from B.G. Somashekar and he was making necessary arrangements including interior decorations to start a hotel under the name and style of "Anusha". P.W. 7 found that the hotel business which P.W. 1 had intended to start had nothing to do with the hotel business or other commercial activities of B.G. Somashekar. Therefore, P.W. 7 told P.W. 1-C.V. Reddy that he has nothing to do with the hotel business of B.G. Somashekar and he could carry on his activities to commence his Hotel. Thereafter, the raiding party led by P.W. 7 left the hotel.
It is the case of prosecution that on the same day, the accused met P.W. 1 near the ramp of hotel and introduced himself as the Inspector of Income Tax and told P.W. 1 that if the accused minds, he could create income tax problems to P.W. 1 and P.W. 1 should pay him a sum of Rs. 1 Lakh as bribe for accused and other staff members to desist from probing into income tax matters of P.W. 1. The accused left the hotel however, on the same day he had made repeated calls. P.W. 1 has stated, he had not committed any mistakes, even then the accused made repeated calls and demanded bribe from PW1. The accused reduced the bribe to a sum of Rs. 35,000/-. Thereafter, P.W. 1 and P.W. 3 met C.R. Dass, the then Additional Commissioner of Income Tax and complained the matter to C.R. Dass, who advised PW1 and PW3 to report the matter to CBI.
On 04.09.2002, P.W. 1-C.V. Reddy and P.W. 3-James visited the office of Superintendent of Police, CBI, Bangalore and lodged the first information at about 6.30 p.m. Even when they were talking with the Superintendent of Police, accused called to the cell phone of P.W. 1 and demanded P.W. 1 to arrange money. The Police Inspector (PW.6-Stephen Dorairaj) requested the Government of Karnataka to accord sanction to investigate the case against accused. The Government of Karnataka gave permission in terms of Notification dated 05.09.2002 (marked as per Ex. P20). The first information was registered at 5.00 p.m., on 05.09.2002 and it was dispatched to the learned Sessions Judge who received the same at 8.30 p.m., on 05.09.2002.
At this juncture, it is relevant to state that the first information was registered after receipt of notification issued by the Government of Karnataka authorising CBI to investigate into the case registered against accused for an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
When P.W. 1 was in the office of Superintendent of Police, CBI, he received a phone call from the accused demanding P.W. 1 to bring bribe amount of Rs. 35,000/- to Hotel Chalukya before 7.30 p.m. Therefore, the Police Inspector secured panch witnesses and made preparations to lay the trap. The Police inspector received a sum of Rs. 1.0,000/- (10 currency notes of Rs. 500/- denomination and 50 currency notes of Rs. 100/- denomination) from PW1 and the police inspector demonstrated the phenolphthalein test to P.W. 1 and other members of raiding party. The police inspector smeared phenolphthalein powder on the currency notes and entrusted the tainted currency notes to P.W. 1 to give the same to accused if accused were to demand bribe from him. The raiding party led by Police inspector P.W. 6- Stephen Dorairaj reached Hotel Chalukya. As expected, the accused reached the Hotel at about 7.00 p.m. The police inspector had instructed P.W. 1 to meet the accused and pay bribe amount if it is demanded by him. CW.4-R.K. Prasad (not examined before the court) was asked to accompany P.W. 1 to observe as to what would transpire between P.W. 1 and accused. CW.4 was a shadow witness. The accused met P.W. 1 in the hotel however, after wishing him good luck in his new venture of starting hotel, left the hotel.
It is the case of prosecution that accused who came to the hotel suspected the presence of CW.4-R.K. Prasad, therefore, he did not demand bribe amount and abruptly left the hotel. The raiding party returned to CBI office and prepared mahazar incorporating the events that had occurred on 05.09.2002.
On 06.09.2002, the raiding party including P.W. 3-James assembled in the CBI office and the police inspector was all along waiting for the call from the accused. The accused did not contact P.W. 1. The raiding party including the police inspector were waiting in the office of CBI till 1 evening and dispersed however, the investigation officer instructed CW.4 (a shadow witness) including P.W. 2 to assemble in the office of CBI at 10.30 a.m., on 07.09.2002. In the meanwhile, the accused had contacted P.W. 1 on his cell phone and demanded bribe. P.W. 1 told the accused over the phone that he had entrusted the money (bribe amount) to P.W. 3-James. The accused contacted P.W. 3 over phone and confirmed that he was in possession of bribe amount. The accused told P.W. 3-James that he would meet him near Anusha Hotel at 11.30 a.m., on 07.09.2002.
The raiding party reassembled in the office of CBI at 10.30 a.m., on 07.09.2002. P.W. 7 made a trap mahazar and prepared contemporaneous record. The police inspector received tainted currency notes from P.W. 1-C.V. Reddy and kept the tainted currency notes in a pocket of green colour and smeared phenolphthalein on green coloured cover and entrusted the same to P.W. 3 with an instruction that he should give the cover containing bribe amount to accused only if it is demanded by him. The raiding party came near Hotel Shiva International situate at S.C. Road, Bangalore and waited for the accused. The accused did not come. At about 6.00 p.m., (evening) when the members of raiding party were about to disperse, P.W. 3 received a phone call from the accused. The accused told P.W. 3 to wait for him in front of Hotel Sathyaprakash situate at a distance of 50-60 feet from Hotel Shiva International. Some of the members of raiding party were sitting on a motorcycle and some of them were sitting in a Maruthi Van. At about 7.00 p.m., the accused came on a motorcycle and asked P.W. 3 to sit on the pillion of motor cycle. Thereafter, the accused took turn towards right side near Nataraja Talkies and rode the motorcycle into lanes and bye-lanes. The police inspector and other members of raiding party followed them in a Maruti van. One Rajashekar, Head Constable of CBI (not examined before the court below) followed the motorcycle ridden by the accused on their motorcycle and chased the motorcycle on which accused and P.W. 3 were proceeding.
It is the case of prosecution that even when the motorcycle was on motion, the accused demanded and received from PW3 bribe amount kept in a pale green colour cover. P.W. 5 overtook the motorcycle of accused and stopped the motorcycle ridden by the accused. In the meanwhile, the other members of raiding party reached that place in a Maruthi Van. P.W. 5 held both the hands of accused. The police inspector questioned the accused but he did not receive satisfactory answer. Therefore, he brought the accused to Hotel Shiva International and conducted further proceedings in a room situate in the basement floor of the building. The police inspector conducted phenolphthalein test by dipping the right and left fingers of accused in Sodium carbonate solution. The police inspector recovered tainted currency notes (a sum of Rs. 10,000/- kept in the pale green colour cover) and also a sum of Rs. 29,320/- from the possession of accused. The police inspector also recovered a chit containing telephone numbers of P.W. 1- C.V. Somashekar Reddy and P.W. 3-James from the possession of accused. The police inspector seized the incriminating articles and prepared a mahazar. The police inspector seized the shirt worn by accused and dipped the shirt pocket in the sodium carbonate solution, the resultant wash turned into pink colour confirming presence of phenolphthalein. The Police inspector took the accused to office of CBI at Gangenahalli. The police inspector found that the accused did not give satisfactory explanation for possession of Rs. 29,320/- (not a part of bribe amount), therefore, he took the accused to a house at Vijayanagar where the accused was residing and seized a sum of Rs 10,000/- from that house. Thereafter, the police inspector took the accused to a Gymnasium at Vijayanagar and searched the Gymnasium. The police inspector did not find any incriminating articles, therefore, the accused was brought to CBI officer at Gangenahalli and he was detained in the CBI officer on the night of 07.09.2002. On 08.09.2002, the accused was produced before the jurisdictional court and he was released on bail. The further investigation was conducted by P.W. 9-K. Jayakumar Nair and final report was filed against the accused.
On perusal of documents filed along with the final report, P.W. 4-N.P. Singh who was then working as Director of Income Tax (Investigation) accorded sanction to prosecute the accused in terms of sanction order date 24.10.2002 (marked as per Ex. P12)
The trial court on consideration of sanction order and competence of P.W. 4 to accord sanction has accepted the sanction order. After going through the sanction order, I find that the sanction; was accorded by the competent authority on proper application of mind to the investigation records, facts and circumstances of the case. Therefore, the sanction order accorded in terms of Ex. P12 cannot be assailed on the ground of its validity or competence of P.W. 4.
In this appeal against judgment of conviction, the points that would arise for determination are as follows:
1) Whether the prosecution has proved that accused being a public servant demanded bribe of Rs. 1,00,000/- from P.W. 1-C.V. Reddy for showing official favour in the income tax matters pertaining to C.V. Reddy on 03.09.2002 and later reduced the bribe to a sum of Rs. 35,000/-, the accused repeated the demand for bribe on 04.09.2002, 05.09.2002, 06.09.2002 and 07.09.2002?
2) Whether the prosecution has prove that in furtherance and continuation of demand stated in point No. 1, the accused demanded and accepted bribe of Rs. 10,000/- from P.W. 3 -James on a Bye Lane near Nataraja Talkies at 7.00 p.m., on 07.09.2002, thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3) Whether the prosecution has proved that accused being an Income Tax Officer (public servant) by misusing his office committed criminal misconduct by demanding and accepting illegal gratification as stated in point No. 2, thereby committed an offence punishable under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988?
4) Whether the learned Special Judge has properly appreciated the evidence on record?
5) To what order?
My findings on the above points and reasons thereof are as follows:--
Re. Point No. 1
In the discussion made supra, I have narrated the events that had transpired on 03.09.2002. The prosecution has relied on the evidence of P.W. 1 to prove that on 03.09.2002, the accused had demanded bribe of Rs. 1,00,000/- from P.W. 1 to desist from collecting incriminating materials and create income tax problems to P.W. 1 in relation to his hotel business namely "Anusha" hotel.
P.W. 1 has not supported the case of prosecution. P.W. 1 has given three versions. P.W. 1, during examination-in-chief supported the case of prosecution. His evidence suffers from certain material discrepancies. During cross-examination of P.W. 1 by learned counsel for accused, PW1 has given go by to the case of prosecution. Therefore, the learned Public Prosecutor appearing for CBI sought for permission to treat P.W. 1 as hostile witness. The learned trial judge granted permission to treat P.W. 1 as hostile witness. P.W. 1 was cross-examined by the learned Public Prosecutor.
During cross-examination by the learned Public Prosecutor, P.W. 1 has admitted the case of prosecution. His evidence relating to demand of bribe on 03.09.2002, 04.09.2002, 05.09.2002, 06.09.2002 and 07.09.2002 does not inspire confidence. During cross-examination by the learned Public Prosecutor, P.W. 1 has come out with a version that accused had not demanded bribe form P.W. 1 however, he learnt from P.W. 3 that accused had demanded bribe. P.W. 1 has given discrepant evidence regarding denominations of tainted currency notes which according to the case of prosecution were entrusted to P.W. 3 on the date of trap. P.W. 1 has deposed; that before lodging the first information, he had gone to the Income Tax office wherein he was told that he should file a complaint with CBI.
During cross-examination by the learned Public Prosecutor, P.W. 1 has deposed; that he had not met any of the higher officials of Income Tax Department to complain about the accused.
In the first information lodged by P.W. 1 on 04.09.2002, he has categorically stated that on 04.09.2002, before going to CBI office to lodge first information, they had gone to Income Tax Officer, Central Revenue Building, Queens Road, Bangalore and had met C.R. Dass, the then Additional Commissioner of Income Tax and complained against the accused. Sri. C.R. Dass-Additional Commissioner of Income Tax advised complainant to report the matter to CBI.
At this juncture, it is necessary to state that the prosecution has not examined C.R. Dass, the then Additional Commissioner of Income Tax to prove that P.W. 1-C.V. Reddy and P.W. 3-James had met C.R. Dass to complain against the accused. According to the case of prosecution, it was the first occasion during which P.W. 1 had revealed that accused had demanded bribe from him. For the reasons not made known to the court C.R. Dass was not examined as a witness before the court. On the other hand, the prosecution has examined P.W. 8-Amol Kamath who was then working as Deputy Director (Investigations) in the Income Tax Department at Bangalore.
P.W. 8-Amol Kamath has deposed; that on 03.09.2002, the Income Tax Department had conducted search of the premises of Hotel Shiva International. The accused was a part of the search team. On the next day, viz., on 04.09.2002 when P.W. 8 was in his office, two persons namely James and C.V. Reddy came and met him and made an oral complaint that accused had demanded bribe from PW1. P.W. 8 took Mr. James (PW.3) and C.V. Reddy (PW.1) to P.W. 4-Mr. N.P. Singh, who was the then Director of Income Tax (Investigation). Mr. N.P. Singh advised P.W. 1 and P.W. 3 to give a written complaint to the department to enable the department to initiate action against the accused. Thereafter, the said persons (PW. 1 and P.W. 3) left the office subsequently they had not met P.W. 8-Amol Kamath or N.P. Singh.
Thus, we find from the contents of first information that P.W. 1 and P.W. 3 had met one C.R. Dass and he had advised them to lodge a complaint with CBI does not inspire confidence.
P.W. 1 has not deposed; that he had met P.W. 8. Therefore, the case of prosecution that P.W. 1 had also complained to the Superiors of accused regarding demand of bribe made by the accused has not been substantiated.
Before adverting to evidence of P.W. 1 and P.W. 3 about alleged demand and acceptance of bribe by the accused, it is necessary to refer to the contents of first information lodged by P.W. 1. In the first information (marked as per Ex. P1) it is stated by P.W. 1 that accused had demanded bribe from P.W. 1 on the false pretext that accused can find any number of faults with P.W. 1 and the accused demanded bribe not only for himself but also to distribute the same amongst other staff members. There were repeated calls from the accused to the mobile phone bearing No. 98450-56693 of P.W. 1
In the first information, P.W. 1 has categorically stated that accused has made more than 10 phone calls to his mobile phone bearing No. 98450-56693. In the first information, it is stated that even when P.W. 1 was discussing with the officials of CBI at about 6.50 p.m., on 04.09.2002, the accused contacted P.W. 1 over his cell phone and demanded P.W. 1 whether he is going to pay bribe amount and P.W. 1 told accused that he is arranging money.
At this juncture, it is necessary to state that the. prosecution has not collected call details of Cell Phones of P.W. 1 and also Cell Phone of accused. Though the prosecution cannot be expected to prove the actual conversation between P.W. 1 and the accused, yet the prosecution should have produced the statement of calls of mobile phone of accused and mobile phone of P.W. 1 to prove that accused had contacted P.W. 1 and demanded bribe.
It is also alleged in the first information that P.W. 1 was in the office of CBI for lodging first information, he received a phone call to his mobile phone from the accused. If the prosecution had collected the statement of call details that could have clinched the issue about allegations made in the first information that accused had. made calls to P.W. 1 when he was in the process of lodging the first information in the office of CBI on 04.09.2002.
P.W. 1 has stated that accused demanded bribe from P.W. 1 by threatening P.W. 1 that he can create problems to P.W. 1 in income tax matters. However, from the evidence of P.W. 7, we find that after P.W. 7 and other officials of Income Tax Department had raided the premises of B.G. Somashekar on 03.09.2002, the members of raiding team suspected that the basement floor was also in occupation of B.G. Somashekar had conducted search of the basement floor which was in occupation of PW1, however, on search they did not find incriminating materials in the basement floor which was in occupation of P.W. 1. P.W. 1 had nothing to do with the business activities of B.G. Somashekar. Therefore, P.W. 7 had told P.W. 1 that he had nothing to do with the business of B.G. Somashekar and P.W. 1 can carry on his business without any hurdles. In the circumstances, it is difficult to conceive that P.W. 1 apprehended problems at the hands of accused who was an Income Tax Inspector P.W. 1 is a Diploma Holder in Mechanical Engineering and he was running Hotels under the name and style of Anusha Hotels. He had taken the new venture of opening a branch hotel in the basement floor of Hotel Shiva International which belonged to P.W. 1- B.G. Somashekar. In the circumstances, P.W. 1 had no reasons to believe that accused could create income tax problems to P.W. 1, more particularly, P.W. 7, who had conducted search had told P.W. 1 that he had nothing to worry and he could carry on his business.
It is true that, it is not necessary for the prosecution to establish that accused was capable of performing the duties for which he had demanded bribe. At the same time, the prosecution has to establish that complainant had reasons to believe that accused can show official favour for which bribe is demanded.
In a decision reported in State of Punjab Vs. Sohan Singh, the Supreme Court has held: the need for the accused to possess power to perform official act is also one of the relevant considerations.
In a decision reported in State of Kerala and Another Vs. C.P. Rao, the Supreme Court has held: the accused should be capable of performing undue favour for which the bribe was demanded and it should be one of the relevant considerations.
In view of the evidence given by PW-7 that on search and verification of premises in occupation of PW-1 they found PW-1 has nothing to do with the business of B.G. Somashekar. There was no reason for PW-1 to have any apprehension of problems from the Income Tax Department.
As already stated, the evidence of PW-1 is not consistent. In the first instance, he has supported the case of prosecution. During cross-examination by learned counsel for accused, he has deposed to support the defence version. Thereafter, the learned public prosecutor with the permission of the Court, cross-examined PW-1. During cross-examination by Public Prosecutor, PW-1 has stuck to his version that accused had not demanded bribe from PW-1 and on the other hand, accused had demanded bribe from PW-3 who was an Interior Decorator, to whom the work of interior decoration of the hotel was entrusted by PW-1. The substantial evidence given by PW-1 before the Court does not support the case of prosecution.
Sri. C.H. Jadhav, learned senior counsel for respondent- CBI relying on the judgment of the Supreme Court reported in Akil @ Javed Vs. State of NCT of Delhi, , would submit that PW-1 after his examination was discharged and later he was cross-examined by the counsel for accused. Therefore, during cross-examination by learned counsel for accused, PW-1 has given evidence against the case of prosecution as he was won over by the accused. Therefore, the prosecution could rely upon his evidence. In the decision referred to above, the Supreme Court referring to the earlier judgments reported in Paramjeet Singh @ Pamma Vs. State of Uttarakhand, , Suraj Mal Vs. State (Delhi Administration), , Kunju Muhammed @ Khumani and Another Vs. State of Kerala, , Nisar Khan @ Guddu and Others Vs. State of Uttaranchal, , Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi), , has held that the evidence of witnesses examined by the prosecution gives contrary version in the cross-examination and had not been declared as hostile witness, cannot be relied upon by the prosecution. However, the benefit of such evidence would go to the accused.
In the case on hand, PWs 1 and 3 have been declared as hostile witnesses and they have been cross-examined by the learned Public Prosecutor. Therefore, any part of their evidence which is found credible and trustworthy, can be relied upon by the prosecution to the extent it supports the case of prosecution and also by the defence to the extent it supports the defence version.
In the case on hand, evidence given by PW-1 that. accused had demanded bribe of Rs. 1 lakh from PW-1 to desist from creating income tax problems to PW-1, does not inspire confidence. The alleged demands made by accused on 04.09.2002, 05.09.2002, 06.09.2002 and 07.09.2002 have not been proved by the prosecution. PW-1 has not deposed that the accused had demanded bribe from PW-1 on the aforestated dates.
The case put forth by the prosecution that on 03.09.2002 accused demanded bribe from PW-1 is contrary to the evidence of PW-7, who in fact had categorically told PW-1 that he has nothing to do with the raid of the premises of B.G. Somashekar and he could carry on his business. It is not in the evidence of PW-7 that after completing raid and search, they had allowed the accused (Income tax inspector) to stay in the premises of PW1.
At this juncture, it is relevant to state that PW-3 (interior decorator) engaged by PW-1 has deposed that all the members of raiding party of income tax entered the premises of occupation of PW-1 and PW-1 became aggressive. There was quarrel between PW-1 on one side and income tax officials on the other side. PW-3 heard the noise of pushing-chairs from the cabin of PW-1. PW-1 and income tax officials came out of the cabin after the noise.
The accused is a body builder. It is apparent from records that he was appointed under sports quota. It appears, in the quarrel/scuffle, accused was rather aggressive to control PW-1. PW-1 had developed grudge against the accused. Therefore, PW-1 had ventured to make a complaint to higher officials of the accused though he had no reasons to believe that accused could create problems to him, more particularly when he had not started the hotel and he was not an income tax assessee and there were no income tax problems related to his hotel business which was yet to commence.
The prosecution has relied on the evidence of PW3 to prove demand and acceptance of bribe by accused. PW-3 James in his examination-in-chief has not supported the case of prosecution. Therefore, the learned Public Prosecutor sought permission and he was treated as hostile witness and learned Public Prosecutor was permitted to cross-examine PW-3. During cross-examination by learned Public Prosecutor, PW-3 has half heartedly supported the case of prosecution. However, on crucial points regarding entrustment of tainted currency notes, he has resailed from the case of prosecution. PW-3 having half heartedly supported the case of prosecution has again changed his version when he was cross-examined by learned counsel for accused. PW-3 has denied that accused had demanded bribe from PW-1 and also from PW-3 at any point of time. The accused did not demand bribe from PW-3 either on 04.09.20.02, 05.09.2002, 06.09.2002 and 07.09.2002. Therefore, the prosecution cannot draw any support from the evidence of PW-3.
In a decision reported in Banarsi Dass Vs. State of Haryana, , the Supreme Court while dealing with offences under Sections 5(2) and (1)(d) of the Prevention of Corruption Act, 1947, has held thus:--
It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. 40. In the case on hand, we find that evidence of PWs 1 and 3 is not sufficient to prove that accused had demanded bribe from PW-1. The case put forth by prosecution that accused had power to create income tax problems to PW1 by misusing his official position as an income tax officer does not inspire confidence.
We are left with the evidence of PW-2 Ramachandra (witness for the trap), who was then working as Vigilance officer in HAL, PW-5 M. Jayachandraraj, Police Inspector of CBI, PW-6 Stephen Dorairaju, Investigating officer and trap laying officer. PW-9 K. Jayakumar Nair, Inspector of Police, CBI, who completed the investigation and filed charge sheet.
PW-2 Ramachandra has deposed that he was working as Vigilance Officer in HAL. On 05.09.2002, pursuant to requisition sent by PW-5, he was deputed to go to the office of CBI. The prosecution cannot draw any sustenance from evidence of PW-2 in proof of events that had taken place on 03.09.2002 and 04.09.2002. PW-2 has deposed about the preparations made to trap the accused. PW2 has deposed that while preparations were going on to trap the accused, they were not aware of the place where PW-1 should go and give bribe to accused. When the preparations were going on, PW-1 received a phone call from the accused and accused told PW-1 that he would meet PW-1 in Chalukya Hotel and instructed PW-1 to give the bribe amount positively. At this juncture, it is relevant to state, till the alleged phone call made by accused, none of the members of raiding party was aware, where PW-1 should meet the accused or where accused would meet PW-1 to receive the bribe amount. The prosecution has not collected the statement of phone calls of PW-1 and accused to prove that during evening of 05.09.2002, PW-1 had received a phone call from accused. Though the prosecution cannot be expected to prove the conversation between PW-1 and accused, yet, the prosecution was required to prove that accused had made a phone call to PW-1 when he was in the office of CBI during the evening of 05.09.2002.
This lapse becomes significant in view of the fact that on 05.09.2002, the trap did not materialise. As per evidence of PW-2 and Investigating officer PW-5, one CW-4 R.K. Prasad was asked to accompany PW-1 to observe as to what would transpire between PW-1 and accused. PW-2 has deposed that accused became suspicious by seeing CW-4. Therefore, he returned back without demanding or receiving bribe from PW-1. The prosecution has not examined CW-4 R.K. Prasad to prove that accused had met PW-1 in Hotel Chalukya, Bangalore at 7 p.m., on 05.09.2002. PW-2 has admitted that he was not in a position to see what had transpired between the accused and PW-1. PW-2 has admitted that he had not seen the accused before 05.09.2002.
In the circumstances, evidence of PW-2 that accused had met PW-1 and he developed suspicion after seeing CW-4 and abruptly left the hotel, looks highly improbable. PW-2 and other witnesses had again reassembled in the office of CBI on 06.09.2002 on the assumption that accused may again call upon PW-1/to demand bribe. After making necessary preparations, the raiding party reached the premises of Hotel Shiva International, S.C. Road, Bangalore, and waited for accused and accused did not turn up. The accused had not contacted PW-1. Therefore, the raiding party returned back to the office of CBI and wound up the proceedings of the day and prepared a mahazar.
As per the evidence of Investigating officer PW-6, on 06.09.2002, it was decided by the Investigating officer to deploy PW-3 James as bribe giver. The Police Inspector felt that accused had developed suspicion and he had lost faith in PW-1 and he may not receive bribe from the hands of PW-1. They also felt the accused had faith and confidence in PW-3. The police Inspector thought it better to substitute PW-3 with PW-1 to give bribe to the accused. PW-3 also told Police Inspector that the accused had told him to give bribe amount after putting it in a cover and he would not directly touch the currency notes. Therefore, they smeared phenolphthalein powder on currency notes which were taken from the possession of PW-1 and kept them in a pale green colour cover. They smeared phenolphthalein powder on the pale green cover and entrusted the same to PW-3. The Police Inspector has not assigned reasons for this change in modus operandi. The evidence of PW2 and PW6 does not reveal that accused had agreed to receive bribe from PW3. The Police Inspector instructed PW-3 to give bribe amount (a sum of Rs. 10,000/- contained in a pale green cover) to accused if the bribe amount is demanded by accused. After making necessary preparations, the raiding party including PW-3 left the office of CBI and reached Hotel Shiva International and waited for the accused. The accused did not turn up upto 6 p.m. When the raiding party was about to disperse, PW-3 informed the Police Inspector that he had received a phone call from the accused. The accused had told him to wait near Hotel Sathya Prakash and PW-3 should bring the bribe amount. Therefore, all the members of raiding party swung into action. PW-5 was ready with a motor cycle and one Rajashekar (Head Constable of CBI) was the pillion rider.
The evidence of PW-5 and PW-6 about the preparations made by them and positions taken by them before arrival of the accused, gives an impression that they had determined to trap the accused under all circumstances. This impression can be inferred from the subsequent conduct of PW6, who conducted raid and search in the house of accused and also in the Gymnasium allegedly belonging to accused.
PW-2 has deposed that the accused came near Hotel Sathyaprakash on his motor cycle, after seeing PW-3 James, the accused asked PW-3 to sit on pillion of his motor cycle and proceeded towards the road leading from Nataraj Talkies towards Malleshwaram. The accused rode his motor cycle at high speed. Even when the motor cycle was running at high speed, the accused demanded and received bribe amount (pale green colour cover containing tainted currency notes in a sum of Rs. 10,000/-) from PW-3 and kept the same into left side pocket of his shirt. PW-5, who was riding motor cycle behind the motorcycle ridden by the accused over took the motor cycle of accused and stopped the accused. In the meanwhile, PW-6 and other members of raiding party, who were following the accused in a Maruti Van reached that place and apprehended accused. PW-5 held both the hands of accused. The raiding party brought the accused and motor cycle to the Basement floor of Hotel Shiva International. As instructed by the Police Inspector, accused dipped his right hand fingers and left hand fingers into two bowls which contained sodium carbonate solution and hand wash of accused was collected in two separate bottles and seized the same. PW-6 searched the person of accused and removed a pale green colour cover from the shirt pocket of accused and seized a sum of Rs. 29,320/- which was found in the pockets of the accused. PW-6 also found a chit containing the phone numbers of PWs 1 and 3 in the pocket of accused. The seized articles were separately packed. The accused was taken to office of CBI along with incriminating articles. Thereafter, accused and other members of raiding party took the accused to house bearing No. 237, 1st cross, II main road, Prashanth Nagar, Bangalore-40 and seized a sum of Rs. 10,000/- from the drawer of a table found in that) house. They later took the accused to Gymnasium situated at No. 11, 60 ft. road, Amarjyothinagar, Vijayanagar, Bangalore-40 and searched the Gymnasium, but did not find any incriminating articles. Thereafter, the accused was brought back to the office of CBI at Gangenahalli.
The evidence of PW-2 would reveal that he was well aquatinted with officials of CBI at Bangalore. PW-2 had appeared as witness for CBI in several cases. PW-2 was working as Vigilance officer at HAL, PW2 has not produced documentary evidence to show that he had taken permission from his higher officials or he was deputed to CBI office on 05.09.2002 and attended the CBI office on 06.09.2002 and 07.09.2002. PW-2 has admitted that he would frequently appear before the court in several CBI cases and he was a panch witness. The conduct of PW2 after accused was trapped would create a reasonable doubt in his evidence. PW-2 with his past experience and also as a Vigilance officer was aware that the Police Inspector PW-6 was not competent to investigate into an offence under Section 13(e) of the P.C. Act.
It is not the case of prosecution that accused was found in possession of wealth disproportionate to his known source of income. PW-2 was a member of raiding party when search was conducted in Gymnasium and also in the house of accused without there being any search warrant and PW6 had not been authorised under Section 17 of the P.C. Act. Therefore, it can safely be inferred that PW-2 was not an independent witness. He had acquiesced all the acts performed by PW-6. The evidence of PW-2 that he was sitting in Maruthi van and he was able to see as to what had transpired between PW-3 and accused when they were proceeding on a motor cycle looks highly improbable. The road on which they were proceeding on the motor cycle is located in the centre of Bangalore City and there was much traffic at the time of incident. PW-2 has admitted that he was sitting on a rear seat of Maruthi Van and therefore, he was not able to see what had transpired between accused and PW-3, yet PW-3 has asserted that accused demanded and accepted bribe from PW3 when they were proceeding on a motor cycle. The Investigating officer has not brought on record the place where the bribe was demanded and accepted by the accused and the place where the motor cycle of the accused was intercepted.
As already stated, the alleged demand and acceptance of bribe on the motor cycle took place in a busy locality of Bangalore city where number of cross roads and land marks were available to fix the identity of place of demand and acceptance of bribe. In the circumstances, evidence of PW-2 that PW6-police Inspector and PW2 had followed the motor cycle ridden by accused in a car and the accused demanded and accepted bribe from PW3 when they were proceeding on a motor cycle looks highly improbable.
It is not the case of prosecution that PW-3 had sought for any official favour from the accused. The evidence on record does not disclose that the accused had contacted or demanded bribe from PW-3. The evidence on record does not disclose that accused had agreed to receive bribe from PW-3 on behalf of PW-1. The evidence on record does not indicate that accused had instructed PW-1 to use PW-3 as a conduit to give bribe to accused.
In the circumstances, evidence of PW-2 regarding alleged demand and acceptance of bribe by the accused from PW-3 does not inspire confidence. At this juncture, it is relevant to state that PW-3 has deposed, the accused had contacted PW-3 about half-an-hour before the alleged demand and acceptance of bribe. The prosecution has not produced the statement of phone calls of mobile phone of accused and mobile phone of PW-3 to prove that PW-3 had received phone call from the accused at the crucial time viz half-an-hour before the alleged trap.
In the discussion made supra, I have held that evidence adduced by prosecution in proof of events that occurred on 3rd, 4th, 5th and 6th September 2002 does not inspire confidence. The conduct of PW6 (Investigating Officer) in conducting raid and searching the house of accused and gymnasium and keeping members of raiding party at his disposal on 5th, 6th and till evening of 7th September 2002 would clearly demonstrate that PW6 had determined to trap accused under all circumstances.
This is clear from evidence of PW-6 that he had told his informants to verify about the antecedents of accused and the source of informant told him that reputation of accused is bad. PW-6 was the Investigating officer. He had registered the first information against accused and he was expected to investigate the case in accordance with law. PW-6 should not have probe into antecedents of the accused even before the accused was trapped. It is seen from records and evidence of PW-6 that he had obtained permission from the Government of Karnataka to investigate the case against accused in terms of the order dated 05.09.2002. He had registered first information after receiving order from the Government of Karnataka in terms of the order at 5.00 p.m. on 05.09.2002. In the circumstances, evidence of PW6 that he had probed into antecedents of accused before he commenced the investigations cannot be accepted. PW6 had made preparations to trap the accused on 05.09.2002. PW6 was under impression that accused may demand bribe from PW-1 at any moment. PW6 has also come out with an explanation to justify his acts of keeping the party ready even before the accused had informed PW1 of the place where he should bribe the accused. PW6 has deposed that accused (bribe taker) would keep the time and place as a secrete till the last moment. Therefore, PW-6 had made necessary preparations to lay the trap even before the time and place is indicated by the accused.
In my considered opinion, the explanation given by PW-6 has to be accepted with a pinch of salt. In the first place, PW-6 had to trap the accused in a city like Bangalore. If the. accused were to keep the place and time as a secret till the last moment and divulge the same to bribe giver at last moment, it would be difficult for the bribe giver to meet the accused at the place and time indicated by him as the place where the bribe giver and the accused would be staying at the crucial point of time is unpredictable.
PWs 5 and 6 had made preparations to trap the accused on 05.09.2002 only on the assumption that accused is likely to demand bribe from PW-1. In the trap preparation mahazar on 05.09.2002, PW-6 has stated that the accused has told PW-1 that positively he would receive the bribe amount on 05.09.2002 evening around 7.30 p.m. in Chalukya Hotel at Bangalore for not causing income tax problems to PW-1. In the first place, the investigating officer PW-6 had not collected any material to show that PW-1 had any income tax problems. On the other hand, evidence of PW-7 then the Assistant Director of Income Tax would reveal that he had told PW-1 that he had nothing to do with the business transactions of B.G. Somashekar and he can carry on with his business. There is no evidence to prove PW-1 was not an income tax assessee or he had commenced any business. There is no evidence to prove that incriminating records were seized from possession of PW1.
It is obvious that PW6-Investigating Officer had not. ensured that PW-1 had any official favour to seek from the accused or accused was capable of causing or creating problems in income tax matters of PW-1, more particularly, when accused was only a income tax inspector and the income tax matters relating to raid and search were being dealt by higher officials like Assistant Commissioner or Deputy Commissioner of the Income Tax. The Investigating officer had not obtained or secured the call details to show that accused had demanded bribe from PW-1 and also to prove when PW-1 was in the office of CBI, accused had demanded PW-1 to come with bribe amount to Hotel Chalukya at 7.30 p.m. on 05.09.2002.
The prosecution has not examined CW-4 R.K. Prasad who according to the case of prosecution had accompanied when PW-1 had met the accused in Hotel Chalukya at 7.30 p.m. on 05.09.2002. The Investigating officer (PW-6) has come out with a story in his evidence. PW6 has deposed that after PW-1 met the accused in Hotel Chalukya, accused told PW-1 to sit on pillion of his motor cycle. In other words, the intention of accused was to take away PW-1 on his motor cycle from Hotel Chalukya, which is not the evidence of other prosecution witnesses who were with PW6.
PW6-Investigating Officer had not shown responsibility while giving evidence in relation to crucial aspects of demand and acceptance of bribe.
In the discussion made supra, I have narrated the events that had take place on 07.09.2002. As already stated the evidence on record does not disclose that accused had told PW-1 to send bribe amount through PW-3. The evidence on record does not disclose that PW-3 was in any way connected with the accused or there was any reason for the accused to trust PW-3.
PW-6 has deposed that on 07.09.2002, he had belief that accused would once again contact PW1, therefore, he had told PW-1 if the accused were to contact PW-1, PW1 should tell the accused that money (bribe amount) was with PW-3 James. On 07.09.2002, when the raiding party including PWs 1 and 3 were in the office of CBI, PW-6 learnt from PW-3 that the accused had contacted him over phone in the late night on 06.09.2002 and PW-3 told PW-6 that the accused had instructed PW-3 to bring the bribe amount on the next day and the accused would meet PW-3 at 11 a.m. near Anusha Hotel and accused had further instructed PW-3 that the bribe amount should be kept in a cover. PW-6 decided to use PW3 as decoy witness to trap the accused. The bribe amount (tainted currency notes) was kept in a cover and cover was smeared with phenolphthalein powder. He had given a cassette recorder to PW-3, which in fact was not used by PW-3. After completing preparations, PW-6 and other raiding party reached Anusha Hotel with the fond hope of trapping the accused, they were expecting to receive phone call from accused at any moment. The evidence given by PW-6 and the preparations made by PW-6 would reveal that he was confident that the accused would come and meet PW-3 to receive bribe amount. PW-6 has deposed that the accused had given a call to PW-3 at about 6.45 p.m. and told him to come with money on the road in front of another hotel. Therefore, PW-3 went near that hotel. The members of raiding party including PW-6 took different positions. At 7 p.m. the accused came and parked the motor cycle in front of the hotel where PW-3 was waiting. As instructed by the accused, PW-3 James sat on the pillion of motor cycle and the accused rode the motor cycle on cross road by the side of Nataraja Talkies. PW-6 has deposed, the motor cycle ridden by accused was followed by motor cycle driven by Rajashekar of which Jayachandraraj was the pillion rider. PW-6 and other members of raiding party followed them in a Maruthi Omni van.
At one breath, PW-6 has deposed that before arrival of the accused, they had taken different positions near the hotel, in the next breath, PW-6 has deposed that soon after the accused took PW-3 and rode motor cycle towards Nataraj talkies and one Rajashekar chased them on a motorcycle and PW5, PW6 and members of raiding party followed them in a Maruthi van. The incident of trap took place around 7 p.m. in the busy locality. It is elicited from PW-3 the place where accused stopped his motor cycle and PW-3 sat on the pillion seat of motor cycle, is a junction of five roads. In the circumstances, it looks improbable that PW6 and other members of raiding party were in a position to get into Maruthi van and they followed the accused soon after the accused took PW-3 as pillion rider of his motor cycle.
These circumstances have to be considered in back ground of subsequent conduct of PW-6. PW-6 has not indicated in the investigation record nor deposed about the time and place where accused had demanded and accepted bribe from PW3. PW-6 has not deposed the place where motor cycle ridden by the accused was intercepted.
As already stated, the alleged demand and acceptance of bribe and interception of motor cycle took place in one of the busiest localities of Bangalore city. The cross road on which the motor cycle was intercepted would certainly bears the number and there are land marks near the interception of motor cycle. The demand and acceptance of bribe deposed by PW-6 and other witnesses is a tangible act. If the demand and acceptance of bribe had taken place within the vision of these witnesses, there was no difficult for them to state the place where the alleged demand and acceptance of bribe took place and where the motor cycle ridden by the accused was intercepted.
PW-6 has deposed that after the accused and motor cycle were brought back to the basement floor of Anusha Hotel, the fingers of accused were dipped into sodium carbonate solution. PW6 recovered tainted currency notes, a sum of Rs. 10,000/- and another sum of Rs. 29,320/- from the possession of accused. In the recovery mahazar, PW-6 has not stated the serial numbers found on the tainted currency notes (bribe amount) which were seized from the possession of accused to ensure that very tainted currency notes had been entrusted to PW-3. It is in the evidence of PW-6 that apart from tainted currency notes, PW-6 had seized a sum of Rs. 29,320/- from the possession of accused. After completing recovery proceedings, they had taken the accused to the office of CBI at Gangenahalli.
It is not the case of prosecution that accused had acquired wealth disproportionate to his known sources of income. It is not the case of prosecution that a case was pending against accused for an offence punishable under Section 13(e) of the P.C. Act. PW-6 was aware that in order to search the premises of the accused, whenever it is alleged that the accused is in possession of assets disproportionate to his known source of income, investigation shall be conducted in accordance with provisions of Section 17 of the P.C. Act. The officer conducting search should obtain search warrant and the search; should be conducted after sunrise and before sunset in the presence of two witnesses of locality if they can be secured. PW-6 had conducted search in the house which was in occupation of the accused even without verifying whether the accused was a tenant or owner or a paying guest. PW-6 had also searched Gymnasium which was allegedly run by the accused.
At this juncture, it is relevant to state PW-6 had not collected any material to prove that the accused was running a Gymnasium. In my considered opinion, this would demonstrate the unauthorized exercise of power by PW-6. It is interesting to notice that PW-6 had seized a sum of Rs. 29,320/- from the possession of accused and a sum of Rs. 10,000/- from the house of accused. PW6 had not subjected these properties to property form. Therefore, it can safely be inferred that PW-6 had determined to trap the accused at any cost. PW6 had seized a sum of Rs. 29,320/- from the possession of accused which was not warranted in the facts and circumstances of the case. PW-6 was a Police Inspector in CBI. He was aware, any property collected and seized in connection with an offence, should be mentioned in the property form and seizure of the property should be reported to the jurisdictional Magistrate/Special Judge under Section 102 of Cr.P.C. For the reasons not apparent on the record, the seizure of Rs. 29,320/- from the possession of the accused and a sum of Rs. 10,000/- from the house of the accused was not reported to the jurisdictional Magistrate/Special Judge. This amount was not even subjected to property form.
In the discussion made supra, I have held that even before commencing investigation, PW-6 had verified about the antecedents of accused through his source informant and had come to the conclusion that accused did not have? good reputation. The law is fairly well settled that investigation should be fair not only from the point of view of the prosecution but also from the point of view of the accused. Therefore, the evidence of PW-6 in proof of demand and acceptance of bribe and seizure of tainted currency notes from the possession of accused cannot be accepted.
PW-9 K. Jayakumar Nair who took over further investigation and submitted final report has deposed; on 20.09.2002, hand wash collected in the case was sent for examination to the laboratory. On 24.09.2002, he questioned the accused and recorded the statement of accused. PW-9 has not given reasons for interrogating the accused when he had been already released on bail by the learned Special Judge. By the time investigation was taken over by PW-9, entire investigation of offences under Section 7 r/w Section 13(1)(d) and 13(2) of the P.C. Act was completed.
It is seen from the FSL report marked as Ex. P23, the investigating officer had sent the right hand wash of the accused and left hand wash of the accused and pink colour solution (pocket wash of the shirt). It is the case of prosecution that accused had received money from right hand and kept the tainted currency notes to the left side shirt pocket. It is not the case of prosecution when the accused was riding his motor cycle, he had received bribe by left hand. The FSL examination report reveals that the left hand wash of the accused showed the presence of phenolphthalein. The Investigating officer had not sent incriminating articles to prove the case of prosecution that accused had demanded and accepted illegal gratification from PW-3. The Investigating officer had not sent the tainted currency notes, which were allegedly recovered from the possession of accused to the FSL laboratory to prove that they had been smeared with phenolphthalein powder. The Investigating officer had not sent the pale green colour cover in which the tainted currency notes were kept.
It is the specific evidence of PWs 2, 3, 5 and also PW-6 Investigating officer that accused wanted the bribe amount should be placed in a cover otherwise he will not accept the same. Therefore, the investigating officer had kept the tainted currency notes in pale green cover and entrusted the same to PW-3. PW6 has deposed that he had smeared the currency notes with phenolphthalein powder. He had smeared phenolphthalein powder on pale green colour cover and instructed PW-3 not to touch the cover till it is given to the accused.
The prosecution has failed to prove presence of phenolphthalein powder on the pale green colour cover which according to evidence adduced by prosecution was given by PW3 to accused. The case of prosecution that tainted currency notes entrusted to PW-3 were smeared with phenolphthalein powder and they were given by PW3 to accused cannot be accepted. The absence of scientific evidence is fatal to the case of prosecution, in view of the fact that investigating officer had also recovered a sum of Rs. 29,320/- from the possession of accused. We also noticed from the recovery mahazar that investigating officer had not noted serial number of the tainted currency notes (bribe amount) which were allegedly recovered from the possession of accused.
We find from evidence of PW9 that he had recorded statements of PW1-C.V. Reddy and P.W. 3-V. James under section 161 Cr.P.C. on 04.10.2002 (after a period of one month from the date of demand of bribe). PW9 has not offered explanation for belatedly recording statements of these material witnesses.
It is also seen from evidence of PW8 and PW9 that a chit was seized from possession of accused and the chit contained mobile phone numbers of PW1 and PW3. This chit was not produced before court below. Thus, we find the Investigating Officer has failed to collect crucial documentary evidence such as call details, the chit containing phone numbers of PW1 and PW3, which was allegedly found in possession of accused. The Investigating Officer had not sent incriminating articles viz tainted currency notes (M.O.1), a green pale cover (M.O.3) in which tainted currency notes were kept to Chemical Examiner to prove presence of phenolphthalein in aforestated incriminating articles.
The learned counsel for CBI, relying on a decision of the Supreme Court, reported in Narendra Champaklal Trivedi Vs. State of Gujarat, would submit that once prosecution has proved recovery of tainted currency notes from possession of accused, a presumption would arise under section 20 of the Act.
In the aforestated judgment, the Supreme Court has held that before raising presumption under section 20 of the Act, demand or acceptance of illegal gratification has to be established on facts by prosecution.
In a decision reported in Banarsi Dass Vs. State of Haryana, , the Supreme Court has held that mere recovery of money from accused by itself is not enough in absence of substantive evidence of demand and acceptance.
In the discussion made supra, I have held that prosecution has failed to prove that accused had demanded bribe from PW1 or PW3. PW1 had no reasons to believe that accused would create problems in income-tax matters, more particularly when no income-tax matter of PW1 was pending in the office of Assistant Commissioner. PW7, who had conducted search in the house of PW1 had given a clean chit to PW1. The prosecution has not produced statement of calls to prove that accused had repeatedly called over mobile phones of PW1 and PW3 and frequently demanded bribe from them. The prosecution has failed to prove that accused had agreed to receive bribe through PW3. The evidence of PW1 and PW3 is not consistent. PW1 and PW3 have been declared as hostile witnesses. Even during cross-examination of PW1 and P.W. 3 by learned Public Prosecutor, prosecution has not elicited evidence to prove demand and acceptance of bribe by accused.
The learned Special Judge has failed to notice that PW1 and PW3 had given contrary versions at different stages and they were declared as hostile witnesses and they were cross-examined by learned Public Prosecutor. The learned Special Judge has failed to notice that PW1 had no reasons to believe that accused could create income-tax problems to him, more particularly PW7, who had conducted search in business premises of B.G. Somashekar and a portion of premises of PW1 had told PW 1 that he has nothing to do with business of B.G. Somashekar and PW7 had told PW1 that there was nothing wrong with him and he could commence his hotel. The prosecution has relied on phone calls to prove demand of bribe by accused. The learned Special Judge has failed to notice that prosecution has failed to produce call details relating to crucial calls. The learned Special Judge has failed to notice that PW2 had appeared for CBI in several cases and he was a member of raiding team from 05.09.2002 to 07.09.2002. The learned Special Judge has failed to notice that demand and acceptance of bribe by accused on 07.09.2002 is not free from reasonable doubt. The learned Special Judge has failed to notice that prosecution has not adduced credible and consistent evidence to prove recovery of tainted currency notes from accused. The learned Special Judge has failed to notice that Investigating Officer had pre-judged the conduct of accused before taking up investigation. The learned Special Judge has failed to notice that Investigating Officer has determined to trap accused under all circumstances. The learned Special Judge has failed to notice that incriminating articles, in particular, a chit containing phone numbers of PW1 and PW3 said to have been recovered from possession of accused was not produced before court below. The learned Special Judge has failed to notice that incriminating articles viz tainted currency notes and a green pale cover, in which tainted currency notes had been kept, were not sent to Chemical Examiner to prove presence of phenolphthalein in said incriminating articles. The learned Special Judge has not adverted to cross-examination of witnesses. The learned Special Judge has failed to notice in cases relating to offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Act, conviction of accused cannot be founded on the basis of inferences and offences should be proved against accused beyond reasonable doubt, either by direct or circumstantial evidence. The learned Special Judge has drawn inference of demand and acceptance of bribe in the absence of substantive evidence.
In view of the above discussion, I hold that prosecution has failed to prove that accused had demanded and accepted bribe from PW3 on 07.09.2002. Therefore, I pass the following:--
ORDER
The appeal is accepted. The impugned judgment is set aside. The accused is acquitted of offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Act in Special C.C. No. 483/2002, on the file of XXI Addl. City Civil and Sessions Judge and Special Judge for CBI Cases at Bangalore. The bail bond of accused stands cancelled. If accused has deposited fine amount, the same shall be refunded to him. The order of Special Court relating to disposal of properties is confirmed.