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TMI Blog2023 (6) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ly after 9.15 p.m. by showing the name of the accused. Therefore, when the accused was not present on the spot and the chit left by him along with the cash was not handed over to P.W. 5, then it was the case required for preliminary enquiry before registering the FIR. Even otherwise, if it is a definite case that the accused came and gave money as it is cognizable offence, then registering FIR is mandatory and then the investigation officer could have seized the cash under the panchanama, but P.W. 5 seized the cash and started investigation prior to the registering the FIR. Therefore, the very foundation of the prosecution commencing the investigation and thereafter registering the FIR vitiates the entire investigation and proceedings. That apart, P.W. 3 who is the colleague of P.W. 1, definitely used to support P.W. 1 and he has not seen the accused. The prosecution tried to connect the accused with the crime on the ground that the accused had a case before the P.W. 4-Assistant Commissioner and this P.W. 1 being joint commissioner compounded the offence and they received the tax amount from the accused. Such being the case, the work of the accused with P.W. 1 or P.W. 4 has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nglauru Urban District is hereby set aside - The appellant is acquitted of the offence punishable under Section 12 of P.C. Act and his bail bond stands cancelled - The criminal appeal is allowed. - CRIMINAL APPEAL NO. 622 OF 2011 - - - Dated:- 6-6-2023 - HON'BLE MR. JUSTICE K. NATARAJAN For The Appellant (By Sri Muralidharan R., Advocate For Sri B S Raam Prasad Raam And Co.) For The Respondent (By Sri B.J. Rohith, H.C.G.P.) JUDGMENT This appeal is filed by the appellant under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the Special Judge, Prevention of Corruption Act, Benglauru Urban District (Hereinafter referred to as 'trial Court'), in Spl. C.C. No.37/2005 dated 28.05.2011 for having convicted the appellant under Section 12 of Prevention of Corruption Act (PC Act) and the trial Court also sentenced the appellant[1]accused to undergo one year rigorous imprisonment and to pay fine of Rs. 10,000/-, and in default of payment of fine, he shall undergo further imprisonment of six months, which is under challenge. 2. Heard the learned Counsel for the appellant and Sri B.J. Rohith learned High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btaining anticipatory bail, the accused surrendered before the police. In turn, after completion of investigation, the Lokayuktha police filed charge sheet. 6. The trial Court secured the presence of the accused and the charge was framed. The accused pleaded not guilty and claimed to be tried. 7. In order to prove the case, the prosecution, in all, has examined seven witnesses as per P.Ws. 1 to 7 and marked 20 documents as per Exs. P.1 to P.20 and two material objects as per M.O. 1 and 2 were marked. After closing the evidence of the prosecution witnesses, the statement under Section 313 of Cr.P.C. was recorded. The case of accused is one of total denial, and not entered any defence. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced to undergo imprisonment and to pay fine, as stated above. 8. The learned counsel for the appellant has seriously contended that the judgment of the trial Court convicting the appellant is erroneous, and the evidence of prosecution is insufficient. P.W. 2, who is the wife of P.W. 1, received the bundle containing money from the accused, but she has not mentioned about this in her evidence. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader for respondent supported the judgment of conviction and sentence passed by the Trial Court. The learned High Court Government Pleader/Special Counsel for respondent has contended that the accused approached the complainant for releasing the amount for having supplied the goods. The complainant was required to issue certificate regarding the payment of taxes. Though the accused was a private person, but the offence committed by him falls under Section 12 of the P.C. Act, which refers that any person, not being a public servant, trying to bribe the public servant is punishable under Section 7 of the P.C. Act. The evidence of the prosecution witnesses is reliable. Though the independent witnesses were not examined, but P.Ws. 1 to 3 have given the evidence, which is sufficient to prove the guilt of the accused. It is further contended that the investigation officer has collected all the documents to show the work pending with the complainant, which belongs to the accused. Therefore, prayed for dismissing the appeal. 13. Having heard the arguments of learned counsel appearing for the parties, perused the records. 14. The points that arise for my consideration are: (i) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 17. P.W. 2-Smt. Himani, wife of P.W. 1 has deposed that her husband and herself are residing at RMV Second Stage. One day at about 4.30 p.m. when she was on outside playing with her child, a person came in a white Maruthi van and stopped the car in front of her house and informed that he has carried some confidential papers to be given to her husband. He handed over a packet which was semi transparent, she was reluctant to accept it, but he handed over and telling that he knew her husband and he would come and meet her husband in the evening. He got introduced himself as Mr. Kulkarni, she wanted to call her husband, she went to neighbours house and telephoned him, but he could not get her phone. Therefore, once again she went to the neighbours house and rang up to her husband and informed him about the matter. By the time, the person who kept the packet on the tea-poy had left the house. The said pocket contained a small chit with his name and mobile number. She further deposed that at 7.00 p.m. or 7.30 p.m., her husband came to home, the police also came. She saw the pocket which was containing currency notes. Then the police opened the packet, which contained the bundle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le work and he has given complaint as per Ex. P.1. Then he has contacted ACP and they informed to receive the money on the spot. Then he collected the panchas Selvakumar P.W. 3 and C.W.7 Yousuff and conducted spot Mahazar. He has enquired previous crime number and mentioned the crime No.402/2001 for the offence punishable under section 12 of P.C. Act. and seized the cash of Rs. 50,000/- He has identified panchanama as per Ex.P.2 and came to the police station along with panchanama and registered a case in crime No. 402/2001 and issued FIR as per Ex.P.13. He also identified M.O.No. 1 - cash and M.O.No. 2 - cover. Then he has handed over investigation to ACP. 21. P.W. 6 Marthurkar has deposed that when he was ACP in J.C. Nagar Sub Division, he took up further investigation and recorded the statement of Mr. Selvakumar, Smt. Mani Harsha Gupta, Smt. Mary, Smt.Uthara Mary, then recorded the further statement of Harshgupta - P.W. 1. Then handed over further investigation to one Ganesh-P.W. 7. 22. P.W. 7 Ganesh, who was the investigation officer has conducted further investigation. He has deposed that he had collected information through telephone from the Spice Telecom company in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the cash, but he has not stated anything about the slip/chit containing the name and mobile number of the accused. Even though P.W. 1 stated in his complaint that the accused left the chit as well as mobile phone number, it was the duty of P.W. 5 to seize the chit and phone number of the accused i.e. the only document that connects the accused with the crime, but neither P.W. 1 nor his wife[1]P.W. 2 spoken about the chit handed over to the police. 24. Even otherwise, P.W. 3 who is panch witness to the seizure and IAS officer and colleague of the P.W. 1 has not spoken about the chit P.W. 5 investigation officer has also not enquired about the chit that was alleged to be left out by the accused. Only in the cross examination, P.W. 2 has stated that it was misplaced but the main connecting evidence is the slip/chit left by the accused mentioning his name and mobile number and definitely it could have contained the hand writing of the accused, but intentionally the prosecution suppressed the crucial document without producing before the court. If that chit is produced that will connect the accused with the crime to show that he is the person who came to the house of P.W. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii), (iv), (v), (vi) and (viii) read as under: 111) In view of the aforesaid discussion, we hold: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very foundation of the prosecution commencing the investigation and thereafter registering the FIR vitiates the entire investigation and proceedings. 30. That apart, P.W. 3 who is the colleague of P.W. 1, definitely used to support P.W. 1 and he has not seen the accused. The prosecution tried to connect the accused with the crime on the ground that the accused had a case before the P.W. 4-Assistant Commissioner and this P.W. 1 being joint commissioner compounded the offence and they received the tax amount from the accused. Such being the case, the work of the accused with P.W. 1 or P.W. 4 has been completed. The question of the accused bribing the complainant after completion of work cannot be acceptable as there is no working pending with P.W. 1. 31. The Co-ordinate Bench of this Court in the case of P.M. Manjunath Vs. The State by Karnataka in W.P. No. 10027 of 2022 dated 16.11.2022 has held that Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure and gross violation in commencement of investigation without registering FIR have vitiated the entire investigation proceedings. Therefore, in my view, the prosecution has failed to prove the offence committed by the accused that he has abetted the public servant for receiving bribe, which is punishable under Section 7 of P.C. Act. Therefore, I hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 35. The trial Court has committed an error in accepting the evidence of the prosecution witnesses and it has ignored the total serious lapse on the part of investigation officer, commencement of investigation without registering the FIR, which was fatal to the prosecution case. Therefore, the judgment of conviction and sentence passed by the trial Court is liable to be set aside. 36. Accordingly, I pass the following order: (i) The criminal appeal is allowed. (ii) The judgment of conviction and sentence passed by Special Judge, Prevention of Corruption Act, Benglauru Urban District, in Spl. C.C. No.37/2005 dated 28.05.2011 is hereby set aside. (iii) The appellant is acquitted of the offence punishable under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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