Karnataka High Court
Sri L Sathish Kumar vs State Of Karnataka on 7 December, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION NO.15314 OF 2022 (GM-RES)
BETWEEN
SRI L SATHISH KUMAR
S/O G LAKSHMAN RAO
AGED ABOUT 59 YEARS
ADDITIONAL COMMISSIONER
OF COMMERCIAL TAXES
SMT ZONE -1 VTK-1
GANDHINAGAR
BANGALORE - 560009
PERMANENT R/O 1247
3RD CROSS
PADUVANA ROAD
T K LAYOUT
MYSORE - 570023 ... PETITIONER
(BY SRI SANJAY J. CHOUTA, SENIOR ADVOCATE
FOR SRI SUNIL KUMAR S., ADVOCATE)
AND
1 . STATE OF KARNATAKA
BY KARNATAKA LOKAYUKTHA
REP. BY SPP, LOKAYUKTA
AMBEDKAR ROAD
M.S. BUILDING
BANGALORE - 560001
2
2 . SMT SHYALAJA N
W/O MADANMOHAN
AGED ABOUT 48 YEARS
ACCOUNT MANAGER
NEXYS CONTROLS PRIVATE LIMITED
BEHIND SURANA COLLEGE
KOMMAGATTA MAIN ROAD
KENGERI UPANAGARA
BENGALURU - 560060
... RESPONDENTS
(BY SRI B.B. PATIL, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA READ
WITH SECTION 482 OF THE CODE OF WRIT PROCEDURE,
PRAYING TO QUASH ORDER DATED 27.04.2022 IN
SPL.C.C.NO.150/2020 (CRIME NO.18/2016 OF ANTI-
CORRUPTION BUREAU) PASSED BY THE HONBLE XXIII
ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE (P.C ACT) AT BANGALORE (CCH 24) FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 13(1)(d), 13(2)
OF THE PREVENTION OF CORRUPTION ACT 1988
PRODUCED AT ANNX-A. QUASH THE CHARGE DATED
27.04.2022 FRAMED BY THE HONBLE XXIII ADDL. CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (P.C
ACT) COURT, BANGALORE (CCH-24) FOR OFFENCES
PUNISHABLE UNDER SECTIONS 13(1)(d), 13(2) OF THE
PREVENTION OF CORRUPTION ACT 1988 IN
SPL.C.C.NO.150/2020 PRODUCED AT ANNX-B. GRANT AN
AD-INTERIM ORDER TO STAY OF PROCEEDINGS IN
SPL.C.C.NO.150/2020 PENDING ON THE FILE OF THE
HONBLE XXIII ADDL. CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE (P.C ACT) COURT, BANGALORE
(CCH-24) IN SO FAR AS THE PETITIONER IS CONCERNED.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.11.2022 THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
This petition filed by the petitioner/accused No.2 under article 226 and 227 of Constitution of India and read with 482 of Cr.P.C to quash order dated 27.04.2022 in Spcl.C.C.No.150/2020 in Crime No.18/2016 of Anti- Corruption Bureau passed by XXII Additional City Civil and Sessions Judge and special judge (P.C. Act) at Bangalore for offence punishable under Sections 13(1)(d), 13 (2) of the Prevention of Corruption Act 1988.
2. Heard learned senior counsel for the petitioner and special court for respondent.
3. The case of the prosecution is that on the complaint of one Shylaja N.k, an accounts Manager of Nexys Controls Pvt. Ltd. Bengaluru filed complaint to the Lokayuktha alleging that the company claimed refund of Rs.6,03,917/- as excess tax amount from the Assistant Commissioner of Commercial Taxes LVO-60. An application came to be filed, at that time the accused No.1 the Assistant Commissioner, demanded 10% of the amount of 4 Rs.60,000/- as bribe for refund that on 4.11.2016 the accused No.1 said to have had telephonic conversation with this petitioner and he has agreed to receive Rs.30,000/- each for accused No.1 and for the petitioner by way of two separate envelops. The complainant was not willing to pay bribe and lodged complaint and after lodging the complaint the trap was set up. The amount has been sent to accused No.1 in two envelops, while accepting the same by accused No.1 the Lokayuktha trapped accused No.1 and seized the cash. After registering the case, the police charge sheeted against the accused Nos.1 and 2 and this petitioner being accused No.2 challenged the charge sheet before this court by way of this writ petition.
4. The learned senior counsel for the petitioner has contended mainly on three grounds (1) That there is no demand or acceptance of bribe by this petitioner, (2) there is no work pending with him as on the date of demand made by the accused No.1 as on 5.11.2016 as this 5 petitioner already sent back the file on 2.11.2016. There is no conversation between accused Nos.1 and 2 with this petitioner, the telephonic conversation also not produced by the Investigating officer in order to show the accused No.1 contacted accused No.2 and the complainant. (3) It is contended that the State initially not accorded any sanction for filing the charge sheet against this petitioner and subsequently the Investigating Officer sent back the file for according sanction, later, without application of mind the sanctioning authority granted sanction. Therefore, absolutely there is no connecting evidence in the prosecution papers to say this petitioner demanded any bribe and accepted and also any work pending with him. Therefore, the alleged offences would not attract against this petitioner, hence prayed for allowing the petition and to quash the criminal proceedings.
5. In support of his contention the learned counsel for the petitioner relied upon judgments of the coordinate bench of this court as well as order passed by this court in 6 Writ Petition No.915/2022 in case of Mr.N.Thejas Kumar Vs State of Karnataka and Anr., in W.P.No.15314/2022 in case of L.Satish Kumar Vs. State of Karnataka By Lokayuktha and Writ Petition No.10027/2022 in the case of Sri.P.Manjunath Vs State of Karnataka and also in another case of Hon'ble Supreme Court (2022) 4 Supreme Court Cases 574.
6. Per contra learned counsel for the respondent has contended that as per the telephonic conversation held in front of the informant the accused No.1 telephoned to the present petitioner and the present petitioner demanded money from the complainant through accused No.1 on 5.11.2016. Subsequently, the amount of Rs.30,000/- each kept in two envelopes and accused No.1 accepted, at that time trapped, the telephonic conversation clearly reveals there was demand by this petitioner and therefore it is contended there is sufficient materials placed on record to show that demand and acceptance by this petitioner. The accused No.1 agreed to sign the refund order after 7 confirming the same by the petitioner, therefore, the petitioner required to face the trial and hence prayed for dismissing the petition
7. Having heard the arguments and perused the records, on perusal of the same, it is an admitted fact, the petitioner is an accused No.2 he is said to be a Assistant Commissioner of Commercial tax and the informant filed complaint to the Lokayuktha police alleging that their company filed application for refund of excess tax for Rs.6,03,917/- and in order to refund the same, the accused No.1 demanded 10% of the refund amount as bribe and the trap was set up by the police and while the accused No.1 accepting the two envelops having Rs.30,000/- each has been trapped by the Lokayuktha- police on 8.11.2016, at that time this petitioner was not present. The only allegation by the first informant that on 5.11.2016 the complainant met the accused No.1 in the office and in front of the complainant the accused No.1 contacted accused No.2 through telephone and inturn the 8 accused No.2 the present petitioner demanded Rs.30,000/- each through accused No.1 and subsequently the complainant agreed to pay Rs.60,000/- and later filed complaint. Admittedly the accused No.1 was trapped by the police while accepting two envelops consisting of Rs.30,000/- each and the Mahazar was drawn the handwash of accused No.1 have been turned to pink and subsequently accused No.1 was arrested and later the police also arrested accused No.2 and filed the charge sheet against both the accused.
8. The learned senior counsel for the petitioner has contended when the Investigation Officer sought permission to prosecute cases against accused No.1 and 2 Government rejected grant sanction and subsequently the sanction has been granted on the further request of the police. On this admitted background, now coming to the contentions of learned senior counsel that there is no demand and acceptance of the bribe amount by this petitioner required to be considered by this Court. In this 9 regard, the learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court held in the latest judgment related K. Shanthamma Vs State of Telangana stated supra at para 10 and 11 as under:-
"10:- We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.
11:-In P. Satyanarayana Murthy Vs State of A.P. this Court has summarised the well settled law on the subject in para 23 which reads thus: (SCC p.159) " "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction there under."10
9. This court also taken similar view in the case N Tejas Kumar Vs state in Writ Petition No.915/2022 and also the coordinate bench of this court in Crl.P.No.100272/2022 dated 16.11.2022 where the coordinate bench has considered regarding the demand and acceptance by the public servant of illegal gratification is sine qua non for establishing the offence under Section 7 of PC Act. The coordinate bench also held "without demand and acceptance of the bribe by the public servant and continuing the proceedings against the accused is abuse of process of law and quashed the criminal proceedings. This court also taken similar view in Tejas Kumar case stated supra.
10. On that background of the principle laid down by Hon'ble Supreme Court and perusal of averments made in complaint and charge sheet. Now coming to the first ground urged by the learned senior counsel for petitioner in respect of demand and acceptance.
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(I) Demand and Acceptance:-
i) Regarding Demand In this regard the petitioner counsel contended there is no demand and acceptance of illegal gratification and contended that the petitioner was Assistant Commissioner and he was not present when there was demand said to be made by the accused No.1 on 4.11.2016 at 12.45 p.m. by meeting accused No.1 he is said to be demanded Rs.60,000/- at the rate of 10% on Rs.6 lakhs and odd amount refundable by the excise Commercial Tax officer.
Subsequently, the complainant lodged complaint to the police and thereafter a trap was laid on 08.11.2016 and even at that time the petitioner was not present, the accused No.1 was trapped. Therefore, it is contended there is no demand and acceptance by this petitioner. On perusal of the complaint filed by the respondent No.2 herein which reveals he is said to be approached accused No.1 on 03.03.2016 but they have not refunded the amount, therefore, the complainant approached accused No.1 on 04.11.2016 at that time the accused No.2 was not 12 present. The accused No.1 said to have demanded 10% of Rs.6 lakhs for Rs.60,000/- as bribe, therefore the complainant went back and discussed with Sunil Naik the managing director of their company and CEO of the company, then they lodged the complaint. Admittedly the accused No.1 was demanded bribe at the rate of 10% on 6 lakhs for Rs.60,000/- for refund of Rs.6 lakhs. The complainant has stated that the accused No.1 said to have informed the accused No.1 present petitioner through mobile phone and accused No.2 said to have demanded the bribe through accused No.1. Admittedly, except the oral statement of the complainant where the accused No.1 told that the accused No.2 had demanded the amount but infact the complainant not met the accused No.2 and also the accused No.2 the present petitioner not made any demand to the complainant. It is only the accused No.1 who has stated that he has to pay Rs.30,000/- to accused No.2, there is no direct or indirect evidence to show this petitioner demanded either Rs.60,000/- or Rs.30,000/- from the complainant and it is also an admitted fact. In 13 this regard, the police relied upon the statement of the complainant where she has stated when she met accused No.1, the accused No.1 who demanded the amount and accused No.1 said to have telephoned to accused No.2 the present petitioner and the present petitioner informed the accused No.1 for payment of Rs.60,000/- and Rs.30,000/- for accused No.1 and Rs.30,000/- for this petitioner. Even there is no record of any telephonic conversation to show accused no.2 actually demanded the bribe from the complainant through accused No.1.
11. On perusal of the both panchanamas i.e., entrustment panchanama as well as pre-trap panchanama where the conversations are mentioned in the pre-trap panchanama or in the entrustment panchanama, where the complainant has stated accused No.1 informed that accused No.2 demanded but there is no telephone conversation or call records to show the accused No.1 actually contacted accused No.2 and contacted the complainant and accused No.2 demanded the money from 14 the complainant. The call digit record does not reveals the accused No.1 actually contacted the complainant through his mobile phone of accused No.1 from the mobile phone of accused No.2. it appears the accused No.1 took up the phone and told the complainant that accused No.2 also demanding bribe of Rs.30,000/-, it reveals purely accused No.1 informed to the complainant that he has to pay Rs.30,000/ to accused No.2. Absolutely there is no connecting material to show the accused No.2 demanded any bribe from the complainant either directly or indirectly through accused No.1 and accused No.2 not spoken with the complaint at all. Therefore, it is not acceptable that the accused No.1 demanded gratification from the complainant. The trial court also, observed in the order of dismissal of discharge application that there is no occasions for the complainant to record the telephone conversation between accused Nos.1 and 2 and complainant. That apart, the telephone conversation produced by the prosecution is only the telephonic 15 conversation between accused No.1 and the complainant but not by the accused No.2 with complainant.
ii) Regarding Acceptance:-
It is an admitted fact, that after lodging the complaint the police set up the trap and sent two envelops containing Rs.30,000/- each on 08.11.2016 whether the same was accepted by the accused No.1 and he was trapped, his hand wash turned to pink in order to show that he has accepted the envelope from the complainant. Admittedly, the accused No.2 was not present in the office and said to be in the meeting with Deputy Commissioner and as per the trap panchanama the accused No.1 alone trapped while acceptance of the envelope from the complainant, therefore, absolutely there is no connection between the demand and acceptance of the bribe money by the accused No.1 with this accused No.2 and in the explanation offered by the accused No.1 during the trap, the accused No.1 has stated that he has received the envelopes and kept it in the drawer of the table and it was seized from accused No.1 but accused No.2 was in the 16 meeting with Deputy Commissioner and later he was arrested by police, therefore it is a clear case that there is no demand and acceptance by accused No.2 from the complainant regarding any illegal gratification. It is well settled by the Hon'ble Supreme Court that the demand and acceptance is sine quo non for establishing the offence under Section 7 of the PC Act. The Hon'ble Supreme Court has held in the case of K Shanthamma vs State of Telangaa stated supra and the co-ordinate bench as well as this court also held in Thejas Kumar's case, as well as in Manjunath's case absolutely, there is no demand and acceptance by accused No.2 for illegal gratification from the complainant and he has been implicated only based upon the voluntary statement of the accused No.1.
12. Therefore, without demand and acceptance the offence under Section 7 of the PC is not made out for the purpose of framing of charge and proceed with trial against accused No.2, which is nothing but abuse of process of law.
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(II). As regards to the Work Entrusment/Work pending with the accused No.2/petitioner
i) The learned senior counsel submits that as on the enquiry made by the complainant with accused No.1 on 4.11.2016 or the subsequent demand on 5.11.2016 the file is not pending with the accused No.2 and he has already sent back the file to the accused No.1 as on 2.11.2016 itself, there is no dispute in this regard. The accused No.2 also given explanation that there is nothing pending with him as on the date of demand and acceptance by accused no.1. That apart the Investigating Officer seized the file belonging to the complainant from the accused No.1 and there is no order passed by accused No.2 for refund of taxes requested by the complainant. Therefore, in this regard the prosecution utterly failed to connect the accused No.2 with the work of the complainant pending with the accused No.2. He may be an authority for passing the order but accused no.1 had kept the file, it was seized by the police from the custody of the accused No.1, therefore it cannot be said that the work was 18 pending with accused No.2/present petitioner. The similar view was taken by this Court in the Tejas Kumar's case. Therefore, there is no material to proceed against this petitioner for trial.
(III) As regard to the regarding Sanction It is an admitted fact, that the Investigating Officer sent requisition to the State Government for seeking permission to prosecute against the accused Nos.1 and 2. The State Government has considered the case of the prosecution and the complainant passing an order on 30.05.2018 by granting the sanction to prosecute case against accused no.1 and rejected the prayer for sanction for the prosecution against petitioner accused No.2. Subsequently, the investigation officer once again requested the State Government to accord sanction to prosecute against this petitioner on 08.02.2019, thereafter once again the State Government accorded sanction to prosecute against this petitioner on 06.05.2019. The learned senior counsel for the petitioner has contended 19 there is no specific reason assigned by State while reconsidering the rejection of the Sanction Order and granting sanction to prosecute against this petitioner. Both the rejection order as well as granting sanction order were produced which reveals the Under Secretary of State Government has in detail order, by application of mind had rejected the prayer of the Lokayuktha police for granting sanction against petitioner accused no.2. But while according sanction there is no proper reason assigned while granting sanction on 06.05.2019. In order to reconsider the rejection of sanction order the State not assigned any specific reason for reconsidering the previous order. It has just mentioned the fact of the case, seizure of the cash from accused no.1 and granted permission. Absolutely there is no application of mind by State while granting sanction. Therefore, without any adequate reason and application of mind, the State has granted sanction to prosecute case against accused No.2 by overruling the previous order for rejection of sanction. Hence, the 20 sanction accorded by State is non-application of mind, which cannot be considered as valid sanction.
13. The coordinate bench of this court in case of Manjunath Vs State quashed the criminal proceedings on the same ground in W.P.No.10027/2022 relying upon the principle laid down by the Hon'ble Supreme Court in the case of State of Haryana Vs Bhajan lal. This court also taken the similar view in Tejas Kumar's case. Considering the reason assigned by this court in the above para of the order that there is no demand and acceptance of bribe/gratification for prosecuting case against accused No.2 and in view of the non-application of mind while setting aside the rejection of sanction order and granting sanction, subsequently without any reasons, on this ground the prosecution cannot be proceeded against the accused No.2 for the reason that there is no demand and acceptance of bribe by the accused No.2 from the complainant and there is no work pending with him as on 05.11.2016 and no valid sanction. Therefore, continuing 21 the proceedings against this petitioner, is nothing but abuse of process of law, hence the proceedings against the petitioner is liable to be quashed.
Accordingly, this petition filed by petitioner/accused No.2, is allowed.
Consequently, the order dated 27.04.2022 in Spcl.C.C.No.150/2020 registered in Crime No.18/2016 of the then Anti-Corruption Bureau passed by XXII Additional City Civil and Sessions Judge and special judge (P.C. Act) at Bangalore for offence punishable under Sections 13(1)(d), 13 (2) of the Prevention of Corruption Act 1988 is hereby quashed.
Sd/-
JUDGE AKV