1. 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- 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 Court Government Pleader for respondent.

3. The rank of the parties before the trial Court is retained for convenience.

4. The case of prosecution is that P.W.1-Harsha Gupta, who is said to be Joint Commissioner of Commercial Taxes, filed a written complaint as per Ex.P.1 on 01.08.2001 alleging that on the said date at about 6.00 p.m., he received telephone call from his wife that a person by name Giri Prasad Kulkarni came to home at 5.30 p.m. and handed over a packet stating that it contained some official papers and to be handed over to the complainant and the said person is said to be told that he would come and meet him (complainant) and he also said to be left the mobile phone number as 9844065789. Then his wife verified the same and had a doubt that the packet contains some money. Then she found that the packet contained 500 rupees notes bundle. Then she called him through neighbour's phone and informed the same. Immediately, he called the D.C.P. Sri Venugopal overmobile phone, who informed that he would send jurisdictional police inspector to his house. Then the complainant went to his house at 7.30 p.m. By the time, the police inspector was waiting and then, he gave statement to him.

5. The complainant-P.W.1 further stated in the complaint that one Giri Prasad Kulkarni had met him two days back and asked for some favour, but for that, the complainant told him that he can proceed as per the law and it was not possible to do any favour. About two months back, the Assistant Commissioner had detected a case in which supply to Government department was made by bogus dealers who had not obtained certificates from the Sales Tax Department. Thus, notice was given to the bogus dealers and asked to pay the taxes. Though the taxes were paid, but was not paid the penalty and therefore, the payments were not released. On this back ground, the said Giri Kulkarni, approached him and he has informed Giri Kulkarni that it could not be released until the assessing sale tax officers given their approval. Therefore, on this background, the said Kulkarni was trying to bribe him. After registration of the complaint, the police officer got registered the case against the accused and issued FIR for the offences punishable under Section 12 of the PC Act. Subsequently, the amount of Rs.50,000/- was seized from the house of the de-facto complainant. After obtaining 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 learned counsel further submitted that, in the complaint, it is stated that the accused left a slip containing cell phone number and the same is not produced and marked. The complainant was aware of the commission of the offence and he has tried to call the accused by phone, but not lifted the phone. There are no call records seized by the police to show that the accused contacted the complainant in the office frequently. Absolutely, there is no connecting evidence in the case. The slip said to be left by the accused has been taken out by P.W.2 but she has stated that it was misplaced. The investigation officer came to the house and obtained the slip, but the same was suppressed. Therefore, when the slip and phone number were not placed before the Court, the question of convicting the accused does not arise. Therefore, the conviction of the appellant-accused is not sustainable.

9. The learned counsel for the appellant further contended that the burden of proof was wrongly placed. The person who compelled to bribe may be a victim, but not an accused. The complainant has withheld the payment receivable by the accused. Therefore, the chances of making demand by the complainant was not ruled out. It is further contended that the accused said to be stayed in the house of the complainant. When P.W.2 went to neighbouring house for phone call, at that time, the accused was present, and at the second time, he was not present. P.W.2 was unable to identify the accused in the first stage, subsequently, the accused was shown to her and then she has stated as 'seen him'. Therefore, the identification of accused by P.W.2 is doubtful.

10. The learned counsel for the appellant-accused further contended that P.W.4, a panch witness to the seizure panchanama, is none other than the colleague and the friend of P.W.1. The signature has been obtained by him to prove the case. The independent witnesses have not been examined. The police have failed to collect the call records. When the independent witnesses are not examined, the story of prosecution cannot be believable. The complaint was filed against the accused as well as partners, but charge sheet was filed only against one person, the accused. The accused cannot be convicted under the PC Act as he is not a public servant. Hence, prayed for allowing the appeal.

11. Per contra, learned High Court Government Pleader 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) Whether the prosecution proves beyond reasonable doubt that, on 01.08.2001, the accused came to the house of P.W.1 for bribing the public servant and given Rs.50,000/- and he has abetted P.W.1 for commission of the offence Punishable Under Section 7 of P.C. Act, thereby he has committed the offence punishable under Section 12 of the P.C. Act

(ii) Whether the judgment of conviction and sentence passed by the Trial Court calls for interference "

15. On perusal of the records, prior to appreciating the evidence on record, it is worth to mention the evidence added by the prosecution before the trial Court.

16. P.W.1 Harsha Gupta is the complainant. He has deposed, in support of his complaint, that the accused said to be running a firm in the name of 'M/s. Baltronix' and he has supplied the electronic goods to the government departments, through fake invoices and collected taxes for supplying the goods. On filing of the complaint, the investigation was done by the Assistant Commissioner, Commercial Tax, Investigation Wing and sales tax dues were recovered from accused and the case was compounded. P.W.1 has further deposed that the appellant-accused paid the tax, but certificate was not issued to the accused as he had not paid the penalty. On this back ground, the accused approached P.W.1 in the office and he was informed that the Assessing Officer was not in station and therefore, his work was not done. P.W.1 further deposed that on that back ground on the evening his wife-P.W.2 called him though phone and informed him that a person calling himself as Giriprasad Kulkarni came and left a bundle stating that it was confidential document to be handed over to her husband. Subsequently, his wife-P.W.2 found that the bundle was containing Rs.500/- of 100 currency notes. Immediately, she once again called and informed him about the same and hence, he telephoned to DCP and asked to send a police to his house. P.W.1 also deposed that when he reached his house, the jurisdictional police inspector was present in the home. Then, P.W.1 lodged the complaint as per Ex.P.1. The police officer also prepared panchanama and seized the cash under panchanama as per Ex.P.2. P.W.1 has identified Exs.P.1 and P.2 and also cash at M.O.1. He also identified Exs.P.4 to 12 which are the documents pertaining to the accused in respect of the tax matters.

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 of Rs.500 of 100 currency notes. The police recorded her statement and she had identified the said cash as M.O.1 and the cover as M.O.2. She also stated that because of long gap of five years, she cannot recall that person. When the accused was shown to the witness who was standing in the witness box, she identified as the said person.

18. P.W.3 one S. Selvakumar, IAS officer and colleague of P.W.1, has stated that on 1.8.2001, he came to Bangalore to attend the official work. On that date, P.W.1 asked him to come to his house at 8.00 pm. When he went to the house, P.Ws.1 and 2 were present and they informed that one Kulkarni came to the house and left the bundle of cash He further deposed that the police opened the bundle in their presence that was containing Rs.500/- 100 currency consisting of Rs.50,000/- The police seized the same under panchanama as per Ex.P.2 and he has identified M.O.1 and 2 -the cash as well as cover.

19. P.W.4 Shivashankar, the Deputy Commissioner, who has stated that he was working as Assistant Commissioner of Commercial Tax and at the relevant point of time, P.W.1 was Joint Commissioner and in charge of investigation. He deposed that the accused coming to the office and contacting P.W.1 regarding KST tax matter. On 12.4.2001, the accused appeared before him and submitted that he had supplied equipment for Rs.45.50 lakhs and he wanted to discharge the tax liability. Accordingly, he has discharged his liability by giving two pay orders for Rs.2,59,000/- and after compounding the offence the accused required to pay the penalty of Rs.25,937/-. P.W.4 further deposed that compounding the offence was decided by the Joint Commissioner. He further deposed that on 2.8.2001 he came to know that the accused was trying to pay money to Joint commissioner and the complaint was registered. He further deposed that the accused admitted the lapses and also discharged the liability and he has furnished the documents as per Exs.P.4 to P.9.

20. P.W.5 A.Purushotham, has deposed that when he was working as inspector in Sanjay Nagar police. On 1.8.2001, the DCP informed and instructed to go to the house of P.W.1. At about 7.25 pm., he reached the house of P.W.1 and after reaching the house, P.W.1 also came there and told that the accused Giriprasad Kulkarni came and placed one bundle of cash on his tea-poy to do favourable 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 respect of phone number 9844065789 as per Ex.P.15. The bill paid by the accused for mobile phone is marked as Ex.P.16 and he has filed charge sheet.

23. On perusal of the evidence of prosecution witnesses and the arguments addressed by the learned counsel for the appellant, it is seen that, in the cross examination of P.W.2 who was the only person seeing the accused that he came to the house and given the bundle of cash. P.W.2 has stated that the accused himself informed that he is Kulkarni and he wants to hand over the bundle to her husband. Then she went to neighbour's house and made telephone call to P.W.1 but could not contact her husband. She says that the accused came to home at 4.30 p.m. and he was standing there in the house and tried to hand over the same. But once again P.W.2 went to the neighbour's house and contacted P.W.1 and informed about the arrival of the accused. When she came back, the accused was not there, but he left the bundle consisting of cash and he left the chit containing the name and phone number. P.W.2 has not stated in her evidence that, what was the phone number left by the accused in her house. She also says that she lost the chit left by the accused and said that it was misplaced when she went to the neighbour's house for making telephone call to her husband. The learned counsel for the appellant has seriously disputed the arrival of the accused to the house and contended that when the phone number was mentioned by P.W.1 in the complaint as well as which was left along with the bundle of cash, the question of missing the slip does not arise, but it was purposely suppressed by the prosecution. P.W.2 was unable to say as to how she lost the important documentary evidence where it contains the name of the accused along with the phone number which is in his hand writing. When she lost the slip containing the phone number and name, while telephoning to the P.W.1 while in the neighbour's house, it is difficult to accept as to whether she was able to remember the mobile phone number of the accused in order to inform P.W.1. P.W.1 who is the husband of P.W.2 has also stated that her wife informed that a chit and name of the accused was left in the house. The investigation officer P.W.5 police inspector who went to the house of the complainant prior to the arrival of P.W.1 said he has seen the bundle 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- 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.

25. Apart from that the prosecution has not examined the independent panch witnesses for Ex.P.2 Though they cited as One Yousuff panch witness C.W.7 was not examined before the Court. The other two maid servants working in the house of P.W.1 were also not examined before the court to confirm that the accused himself came to the house and left M.Os.1 and 2.

26. P.W.3, an I.A.S officer and batch mate of P.W.1 said to be came to Bangalore and on invitation of P.W.1, he came to the house of P.W.1. The police opened the bundle and found the cash the same was seized under panchanama as per Ex.P.2. P.W.5 who was the person who registered FIR by obtaining complaint and prepared panchanama.

27. P.W.5 has categorically stated he has prepared the panchanama Ex.P.2 and seized the cash between 8.30 and 9.10 p.m. Then he came to the police station and registered the FIR as per Ex.P.13. Ex.P.13-FIR reveals that it was registered by the police after 9.30 p.m. An entry was made in the general station house diary at 9.15 p.m., which clearly reveals that the police officer seized M.O.No.1 and 2 under the panchanama Ex.P.2 between 8.30 and 9.10 pm prior to the registration of the case and issued FIR after 9.15 p.m. Therefore, there is gross violation of the procedure as contemplated under Section 154 of Cr.P.C. and the procedure and guidelines issued by the Hon'ble Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1. It is well settled by the Hon'ble Supreme Court that in a cognizable case, the police are required to register the FIR and then investigate the matter. The Hon'ble Supreme Court has also held that the police are required to make a preliminary enquiry in P.C. Act cases. Here in the present case, P.W.5 seized the cash from the house of P.W.1 by receiving the complaint without registering the FIR which was gross violation of mandatory provisions and the guidelines issued by the Hon'ble Supreme Court. Lalita Kumari's case P.W.5 could have made preliminary enquiry in order to confirm the name of the accused and phone number prior to registering the FIR and after receiving the complaint, he could have seized the cash in the presence of the independent witnesses.

28. The Hon'ble Supreme Court in the Lalitha Kumari's case (supra), has held at paragraph No.111(i), (ii), (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 to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

29. On perusal of the guidelines issued by the Hon'ble Supreme Court when P.W.1 informed DCP Venugopal and in turn, the DCP informed P.W.5 police inspector to go the house of P.W.1. The cash handed over by the accused to P.W.2 becomes cognizable offence under the provisions of the P.C. Act. Immediately, P.W.5 could have informed the police station for making an entry in SHD regarding commission of offence and receipt of the complaint at 8.30 p.m., but he has seized the cash at 8.30 p.m. and thereafter he went to the police station and registered FIR only 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.

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 is a failure."

32. Though the prosecution produced Exs.P.4 to P.12, but those documents reveal that the work of the accused was already completed and the matter was compounded by P.W.1. Actually, the assessing officer was P.W.4. Such being the case, the possibility of P.W.1 demanding bribe from the accused, is not ruled out. The accused might have brought money on demand made by P.W.1. When the accused came to the house of P.W.1 and at the same time, P.W.3 might have come to the house and witnessed the cash left by the accused. Then there is every chance of P.W.1 or P.W.2 informing the police for registering the case. Otherwise, how the accused could come to the house of P.W.1, who had given the address to the accused in order to bring money. As rightly contended by the learned counsel for the appellant, the accused might be the victim and P.W.1 might have demanded money for having done favourable work to the accused. Therefore, when there are two views are possible, one, the accused might brought the money for bribing P.W.1 for having done his work and compounding the offence, or second, P.W.1 might have demanded bribe from the accused for completion of the work of the accused by compounding the case and then the amount brought by the accused was witnessed by P.W.3. In order to avoid filing of the complaint by the accused before the Lokayuktha police, they have not touched the same and on the other hand, P.W.1 lodged the complaint to the local police against the accused. If two views are possible, the view which is favourable to the accused shall be accepted.

33. That apart, suppressing the chit left on the spot, mentioning the phone number and name of the accused by the prosecution witnesses creates serious doubt in the mind of the Court. In addition, no call detail records are collected and produced to show as to whether the accused telephoned P.W.1 or contacted P.Ws.1 or 4 through his mobile phone, prior to the alleged incident or whether the police or P.W.1 tried to contact the accused through mobile phone, are not forthcoming. Therefore, the benefit of doubt shall be extended to the accused.

34. Apart from that, P.W.2, who is the wife of P.W.1-complainant, was not able to identify the accused as there was long gap of five years and she had seen only one time in the house. The non-examination of independent witnesses for 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 Section 12 of P.C. Act and his bail bond stands cancelled.

(iv) The fine amount, if any, collected or deposited, is ordered to be refunded.