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State Of Karnataka By Lokayuktha … vs H.K. Ashwath on 22 February, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22nd DAY OF FEBRUARY, 2019 R
BEFORE

THE HON’BLE MR.JUSTICE B.A.PATIL

CRIMINAL REVISION PETITION No.353/2016

BETWEEN:

State of Karnataka
by Lokayuktha Police
Represented by PSI Lokayuktha Police
Bengaluru-560 001.
…Petitioner
(By Sri B.S. Prasad, Advocate)

AND:

H.K. Ashwath
S/o Krishnappa Shetty
Aged about 49 years
Occ: Driver of Govt. Vehicle of
District Malaria Officer,
Bangalore Urban District
Food Protection and Quality Maintenance Act,
Bengaluru-560 001.
… Respondent
(By Sri M.T. Nanaiah, Senior Counsel for
Sri Prabhugowda B. Tumbigi, Advocate)

This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
04.08.2015 passed by the Principal Sessions Judge and
Special Judge, Bengaluru Rural District, Bengaluru, in
Special Case No.93/2015.
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This Criminal Revision Petition coming on for
Admission, this day the Court made the following:-

ORDER

The present criminal revision petition has been filed

by the State of Karnataka by Lokayuktha Police,

challenging the order dated 4.8.2015 passed by Principal

Sessions Judge and Special Judge, Bengaluru Rural

District, Bengaluru, in Special Case No.93/2015.

2. I have heard the learned counsel for the petitioner

Sri Prasad B.S. and Senior Counsel Sri.M.T.Nanaiah on

behalf of the respondent.

3. The gist of the complaint is that, the complainant

has a water plant in Iggalur Village, Attibele Hobli, Anekal

Taluk and he used the same for filtering water for his own

use. On 19.01.2014 at about 11.00 a.m. accused No.1 who

was working as a District Malaria Officer in Bengaluru

Urban District along with accused No.2 who is the driver of

his jeep went there and told CW.7-Chandan, the nephew of
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the complainant that without licence the water plant has

been installed and threatened him and locked the plant

and took away the key. While going, accused No.1 gave his

visiting card to the nephew of the complainant and told

him that the complainant should meet him on the next

day. On 20.01.2014 the complainant called accused No.1

over phone, for which accused No.1 told him that he would

not come to the office on that day and the complainant

should meet him on the next day. Accordingly, on

21.1.2014 the complainant went to the office of the

accused, but accused No.1 had not come to the office.

Therefore, he contacted over phone, for which accused

No.1 responded by saying that he had told everything to

his driver accused No.2 and the complainant should speak

to him. Accused No.1 was then found in a Tata Sumo and

he got down from it and left the place. Thereafter, the

complainant, spoke to accused No.2 and the latter told him

that the water plant has been installed without licence and

if the matter is reached to the Court, a sum of Rs.50,000/-
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had to be paid as penalty, instead if he was to pay a sum of

Rs.30,000/- as bribe, he would see that there would not be

any trouble to him. Then the complainant pleaded his

inability to pay a sum of Rs.30,000/-, for which accused

No.2 told him that at-least a sum of Rs.25,000/- has to be

paid and again the complainant pleaded his inability and

then accused No.1 also came there. Accused No.2 told

accused No.1 that the complainant was not heeding to his

advice. Then accused No.1 spoke to the complainant and

demanded a sum of Rs.25,000/- and after bargaining he

reduced it to Rs.15,000/-. On the same day, the

complainant drew a sum of Rs.5,000/- from the ATM and

handed over the same to accused No.1 through accused

No.2 and he suggested that the balance amount has to be

paid on the next day. Unwilling to pay the balance amount,

the complainant lodged a complaint with the Lokayuktha

Police on 22.1.2014. On the basis of which FIR was

registered for the offences punishable under Sections 7,
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13(1)(d) punishable under Section 13(2) of the Prevention of

Corruption Act (herein after referred to as ‘Act’ for short)

4. On 22.1.2014 a trap was laid, but it was failed and

another trap was laid on 29.1.2014, on that day also it was

failed. After having found that there was demand for bribe

and a sum of Rs.5,000/- had been received by accused

No.1 through accused No.2, the investigating agency after

obtaining the sanction, filed the charge sheet under

Sections 7 and 13(2) of the Act. Thereafter, the present

order has been passed after hearing the learned Public

Prosecutor and the learned counsel appearing for the

parties.

5. The trial Court after considering the material

placed on record has come to the conclusion that there are

no grounds to frame the charge against accused No.2 and

accordingly he was discharged and there are grounds to

frame the charge as against accused No.1 for the offence

punishable under Section 7 and it was posted for framing
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the charge. Being aggrieved by the said order, the

Lokayuktha Police is before this Court.

6. The main grounds urged by the learned counsel

appearing for the petitioner are that the impugned order of

the Special Judge is contrary to law and evidence and

material placed on record. The Special Judge has not

properly appreciated Section 7 of the Act. He further by

referring to Section 7 of the Act submitted that if anybody

being a public servant accepts or obtains or agrees to

accept or attempts to obtain from any person, that itself

amounts to an offence under Section 7 of the Act. He

further submitted that there is material including the

statement of the complainant to show that there was

conversation between accused No.2 and the complainant

and through him an amount of Rs.5,000/- has been

received and the same has been paid to accused No.1. He

further submitted that accused No.2 has also negotiated

for demand of bribe and there is conversation of the said

material. He further submitted that prima facie there is a
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material to frame the charge. He further by relying upon

the decision of this Court in Anand Gurappa Chitragar Vs.

The Karnataka Lokayukta in Criminal Petition

No.11085/2013 dated 7.8.2014 submitted that this Court

after considering the material held that if there is a

demand on behalf of the accused and on behalf of the

others including the petitioner, then under such

circumstances it attracts provisions of Section 7 of the Act.

Under the said facts and circumstances the trial Court

ought to have framed the charge instead of discharging

accused No.2. He further submitted that the FSL report

also clearly indicates that it is the voice of accused No.2

which has been recorded in the voice recorder and if the

statement of the complainant and other materials are

perused, there is prima facie material to frame the charge.

The trial Court without considering the said aspect has

come to a wrong conclusion and has wrongly discharged

accused No.2. On these grounds he prays to allow the

petition and to set aside the order of the trial Court.
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7. Per contra, the learned Senior Counsel

Sri.M.T.Nanaiah, vehemently argued and submitted that

there must be demand and acceptance of the bribe and he

further by relying upon the decision of the Hon’ble Apex

court in Dashrath Singh Chauhan Vs. Central Bureau of

Investigation reported in LAWS(SC)-2018-10-13 submitted

that there must be demand and acceptance of a illegal

bribe amount from the complainant and without the said

ingredients the said provision is not attracted. He further

submitted that the prosecution has to prove the twin

requirement of “demand and acceptance of the bribe

amount by the appellant”. If it is not proved, then under

such circumstances, the accused is entitled to be

discharged. He further by relying upon the decision in the

case of Anvar P.V. Vs. P.K.Basheer and Others reported in

2015(1) Kar.L.J. 547(SC) submitted that the electronic form

of recording of any material, if it is not in compliance of

Section 65B of the Evidence Act, then under such

circumstances, the said evidence cannot be relied upon. He
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further submitted that no certificate as contemplated

under Section 65B of the Evidence Act has been produced

in the charge sheet material, then under such

circumstances the said material which has been intended

to be relied upon by the prosecution cannot be relied upon.

He further submitted that the trial Court after considering

all the material placed on record has come to a right

conclusion and rightly discharged accused No.2. On these

grounds he prayed to dismiss the petition.

8. I have carefully and cautiously gone through the

submissions made by the learned counsels appearing for

the parties and also perused the records including the

charge sheet material which has been made available

during the course of the argument.

9. On going through the charge sheet material

including the complaint which is filed by the complainant,

it discloses the fact that when accused No.1 along with

accused No.2 went to the place of the complainant, they

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met CW.7- nephew of the complainant and there they told

him that they are using the said plant unauthorizedly and

threatened him and locked the plant and asked the

complainant to come and meet him and on 20.1.2014

complainant called accused No.1 over phone for which

accused No.1 told him that he would not come to the office

on that day and the complainant should meet him on the

next day. On 21.1.2014 the complainant went to the office

of the accused, but accused No.1 had not come, when he

contacted accused No.1 over phone, accused No.1

responded saying that he had told everything to his driver

i.e. accused No.2 and it is further stated that thereafter he

talked with accused No.2 and he told that he has installed

the said plant without licence and if the matter reaches to

the Court, a sum of Rs.50,000/- has to be paid as penalty

and instead of that he asked him to pay Rs.30,000/- and

when he expressed his inability, then accused No.2 told

him to pay at-least a sum of Rs.25,000/- and again when

the complainant pleaded his inability, then he told accused

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No.1 who in turn spoke to the complainant and demanded

a sum of Rs.25,000/- and it was again reduced to

Rs.15,000/- and thereafter an amount of Rs.5,000/- has

been received by accused No.1 through accused No.2. All

these materials would clearly go to show that there is

demand by accused No.2 also. In order to attract the

provisions of Section 7 of the Act, if a public servant

accepts or obtains or agrees to accept or attempts to obtain

from any person for himself or for any other person, then

under such circumstances, the provisions of Section 7 of

the Act are going to be attracted. For the purpose of

brevity, I quote Section 7 of the Act which reads as under:

Section 7. Public servant taking
gratification other than legal
remuneration in respect of an official
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 remuneratin, as a motive or

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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 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 three years but which may extend to
seven years and shall also be liable to
fine.”

On close reading of the said Section it clearly goes to

show that if there is a demand to obtain from any person

that is also an offence under Section 7 of the Act.

10. It is the submission of the learned counsel for the

respondent that, the said conversation which has been

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recorded in the electronic device has not been certified as

per Section 65B of the Evidence Act and the same cannot

be relied upon. He further submitted that the said

certificate has also not been produced along with charge

sheet, the question of admissibility of the said recording

comes into picture only when if the prosecution is going to

rely upon the said recording and at the time of recording

the evidence the accused can object that the said recording

is not certified in accordance with Section 65B of the

Evidence Act. At this pre-matured stage it cannot be held

that merely because the certificate is not there, the said

recording is not having any impact on the case of the

prosecution. If the said devices and recording are intended

to be relied upon, then only the provisions of Section 65B

of the Evidence Act come into play. This proposition of law

has also been laid down by the Hon’ble Apex Court in the

case of Shafhi Mohammad Vs. State of Himachal Pradesh

reported in AIR 2018 SC 714, wherein at paragraphs 14

and 15 it has been observed as under:.

– 14 –

14. The applicability of procedural
requirement under Section 65B(4) of the
Evidence Act of furnishing certificate is to
be applied only when such electronic
evidence is produced by a person who is
in a position to produce such certificate
being in control of the said device and not
of the opposite party. In a case where
electronic evidence is produced by a
party who is not in possession of a
device, applicability of Sections 63 and
65 of the Evidence Act cannot be held to
be excluded. In such case, procedure
under the said Sections can certainly be
invoked. If this is not so permitted, it will
be denial of justice to the person who is
in possession of authentic
evidence/witness but on account of
manner of proving, such document is kept
out of consideration by the court in
absence of certificate under Section
65B(4) of the Evidence Act, which party
producing cannot possibly secure. Thus,
requirement of certificate under Section
65B(h) (sic 65B(4)) is not always
mandatory.

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15. Accordingly, we clarify the legal
position on the subject on the
admissibility of the electronic evidence,
especially by a party who is not in
possession of device from which the
document is produced. Such party cannot
be required to produce certificate under
Section 65B(4) of the Evidence Act. The
applicability of requirement of certificate
being procedural can be relaxed by Court
wherever interest of justice so justifies.

In that light, the contention taken up by the learned

counsel for the respondent is not acceptable. The learned

counsel for the respondent has relied upon the decision

quoted by the Hon’ble Supreme Court, I am not having any

difference of opinion with regard to the ratio laid down by

the Hon’ble Apex Court, that has to be appreciated with

reference to the discussion which has been made by me

above with reference to facts on hand.

11. For framing of a charge, the Judge has to

consider judicially whether on consideration of the

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materials on record it can be said that the accused has

been reasonably connected with the offence and that there

is a reasonable probabilities or chance, accused have been

found guilty. If the answer is in the affirmative, the Judge

will be at liberty to frame the charge. It is also well

established principle of law that even if all the materials

which have been produced by the prosecution, if it is

accepted in its face value and even then if no offence has

been made out, then the Court is at liberty to discharge. If

a strong suspicion created from the material which has

been produced, then this itself is sufficient to frame the

charge.

12. In the light of the discussions held by me above,

on close perusal of the charge sheet material, which is

made available, the contents of the complaint and other

material clearly goes to show that there were some

conversation between the complainant and the accused

No.2 and nephew of the complainant, their conversation

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has also been stated in the complaint and the statement of

these two witnesses.

13. Looking from this angle, prima facie there is

material to show that it is a fit case for framing the charge.

This aspect has not been properly considered and

appreciated by the trial Court and has passed the

impugned order erroneously. The impugned order suffers

from all these infirmities and it requires to be interfered

with and as such the impugned order dated 4.8.2015

passed by the Principal Sessions Judge and Special Judge,

Bengaluru Rural District, Bengaluru, in Special Case

No.93/2015 is set aside, the trial Court is directed to frame

the charge as against accused No.2 and proceed in

accordance with law.

Accordingly, this petition is allowed and the

impugned order dated 4.8.2015 passed by the Principal

Sessions Judge and Special Judge, Bengaluru is set aside.

The observation which has been made while

disposing of this case, will not come in the way of the Court

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below in hearing and deciding the case on merits and in

accordance with law.

In view of disposal of the petition, IA No.2/2016 does

not survive for consideration and accordingly, the same is

disposed of.

Sd/-

JUDGE

*AP/-

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