Bangalore District Court
State Of Karnataka vs Sri Nehru C Olekar on 13 February, 2023
KABC010041272021
IN THE COURT OF XC ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-91)
Present
Sri B. Jayantha Kumar, B.A.Law., LL.M.,
XC Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-91)
(Special Court exclusively to deal with criminal cases
related to elected former and sitting MPs/ MLAs in the State of Karnataka)
Dated this the 13th February, 2023
Spl.CC. No. 143 / 2021
COMPLAINANT: State of Karnataka
by Haveri Lokayukta Police Station
Haveri District.
V/s
ACCUSED: 1. Sri Nehru C Olekar
S/o Channabasappa Olekar
Aged about 63 years
Minister,
R/o Shedenoor,
Byadagi Taluk, Haveri District
2. Sri Manjunath N Olekar
S/o Nehru Channabasappa Olekar
Aged about 32 years
R/At Shedenoor Village
Byadagi Taluk
Haveri, Karnataka
3. Sri Devaraj N Olekar
S/o Nehru Chennabasappa Olekar
Aged about 31 years
-2- Spl.CC 143/2021
Contractor
R/At Shedenoor Village
Byadagi Taluk
Haveri District
4. Sri H K Rudrappa
S/o A.D.Kariyappa
Age: 65 years
Retired Deputy Director
Commerce and Industry Department
R/At Analekoppa Town
Sagar Taluk
Shivamogga District
5. Sri H.K.Kallappa
S/o A.H.Kallappa
Aged about 64 years
Occupation :
Retired Assistant Executive Engineer
Public Works Department
R/At No.1672/9, 1st Main
1st Cross, Vidyanagara,
Davanagere
6. Sri K.Manjunath S/o Nagappa
Aged about 55 years
R/At Tayee Krupa
T.B.Road, Bharmapura
Harihara Taluk
Davanagere
(DEAD)
7. Sri Shivakumar Puttaiah Kamadod
S/o Puttaiah Kamadod
Aged: 42 years
OCC: SDC, Purasabhe, Shiggaon
R/At Gangdhi Galli
Behind Nagra Sabha
Rani Bennuru
Haveri District
8. Sri Chandramohan P.S.
S/o K.Subbaraya
Aged about 61 years
-3- Spl.CC 143/2021
Occ: Retired Assistant Executive
Engineer, PWD,
R/At . 1st Main Road, 1st Cross
Jayangara West, Tumkuru
9. Sri K. Krishna Naik
S/o Kamala Naik
Aged about 55 years
Occ: Assistant Engineer
Nagarasabe, Haveri
R/At No 1726/9 S.V.S Convent Line
Near H.K.R.Circle
Nittuvalli, Davanagere
Date of offence The incident took place between
2009 to 2011
Date of report of offence 09.10.2012
Name of the complainant Sri Shashidhar Mahadevappa Hallikeri
Date of commencement of 08.10.2021
recording of evidence
Date of closing of evidence 15.07.2022
Offences complained of Sec.197, 198, 409 and 420 of IPC and
Sec.13(1)(d) R/w 13(2) of the
Prevention of Corruption Act, 1988
Opinion of the Judge Accused No.1 to 5 and 7 to 9 are
found guilty
State represented by Sri Santhosh S.Nagarale
Learned Special Public Prosecutor
Accused defended by Sri M.R.Hiremathad, Advocate For
Accused No.1 to 3
Sri R.Satish Chandra, Advocate for
Accused No.4, 5, 7 to 9
-4- Spl.CC 143/2021
JUDGMENT
This case is arising out of a private complaint filed under Sec.200 of Cr.P.C., by the complainant before the Hon'ble District and Sessions Judge and Special Judge, Haveri District, against accused No.1 to 7 alleging offences punishable under Sec. 197, 198 420 and 409 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
2. Immediately after receipt of the private complaint, learned Prl. District and Sessions Judge and Special Judge, Haveri, referred the private complaint under Sec.156(3) of Cr.P.C., to the Karnataka Lokayukta for investigation and to submit report. After completion of investigation, the Superintendent of Police, Karnataka Lokayukta, Davanagere submitted charge sheet against the accused No.1 to 9 for the offences punishable under Sec.197, 198, 409 and 420 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
3. Brief facts of the case of the complainant are as follows:-
Complainant Sri Shashidhara Mahadevappa Hallikeri, R/o Yalakki Oni, Haveri, filed private complaint under Sec.200 of
-5- Spl.CC 143/2021 Cr.P.C., before the Prl. District and Sessions Judge and Special Judge, Haveri, against accused persons alleging that the accused No.1 is MLA of Haveri Constituency, accused No.2 and 3 are children of accused No.1, accused No.4, the then Municipal Commissioner, City Municipal Council ('CMC' for short), Haveri, accused No.5, the then Assistant Executive Engineer, CMC, Haveri, accused No.6, the then Junior Engineer, CMC, Haveri, accused No.7, the then SDA, City Municipal Council, Haveri, accused No.8 and 9, the then Assistant Executive Engineers, CMC, Haveri.
It is further alleged that Accused No.1 is the sitting MLA of Haveri and Chairman of State SC-ST Commission and also member of the CMC, Haveri. The accused No.2 and 3 are the sons of accused No.1. The accused No.1 contested election as a BJP candidate from Haveri Constituency and he has got MLA grant of Rs.1 crore for developmental works to be carried out in his constituency. The accused No.1 with an intention to siphon out the MLA grant, addressed a letter dated 28.2.2010 to the Deputy Commissioner to release funds for undertaking developmental works in his constituency to the tune of Rs.50 lakhs and accordingly, the Deputy Commissioner released funds. Out of the 10 developmental works
-6- Spl.CC 143/2021 listed in the recommendation letter of accused No.1, item No.1, 7, 8 and 9 were allotted to the accused No.2, who is the elder son of accused No.1 and with the influence and recommendation of his father, accused No.2 secured several public works contracts and he secured contract for construction of concrete road at M.G.Thimmapur Village with estimated cost of Rs.5 lakhs and he has also bagged contracts for construction of concrete road at Nelogal Village and Thotada Yellapur Village of Haveri Taluk and Honnikoppa Village of Savanur Taluk, each contract estimated at Rs.5 lakhs. It is alleged that the accused No.1 in collusion with accused No.2 and 3 has managed to bag all the Government Contracts without allowing any other individual to secure the contracts, either by threat or other means unknown to law.
It is further alleged that the accused No.1 being the member of Malanad Area Development Board, Shivamogga ('MADB' for short), addressed a letter to the Secretary of MADB on 8.9.2009 to grant permission for 8 developmental works to be carried in Savanur Taluk of his constituency for the year 2008-09 at an estimated cost of Rs.30 lakhs. Out of the 8 developmental works, two work contracts at Sl. No.7 and 8 namely Development of Tank Depth at Ichangi village
-7- Spl.CC 143/2021 and Hoovina Sigli village were allotted to the accused No.2 estimated cost at Rs.5 lakh and Rs.3 lakh respectively.
It is further alleged that the accused No.1 again addressed a letter to the Secretary, MADB, which was received by the MADB on 20.07.2010, recommending to grant permission for the developmental works to be carried out at Savanur Taluk of his constituency for the year 2010-2011 at an estimated costs of Rs.17 lakhs. Out of the three developmental works, one contract pertaining to construction of concrete road at Hattimattur village estimated at Rs.5 lakhs came to be allotted to accused No.3. The second work allotted through e-procurement process in which two persons participated i.e., the accused No.2 herein and one Honnappa H.Malagi who has been set up by the accused No.2, the tender submitted by said Honnappa Malagi came to be rejected and finally the tender for Development of Tank Bed at Ichala Yellapur village of Savanur Taluk came to be allotted to the accused No.2.
It is further alleged that the accused No.2 was a Class-III contractor in 2007 till 2008 and registered himself as a Class II Contractor on 19.6.2009. The accused No.2 registered himself as Class I contractor after completion of statutory period of one year on
-8- Spl.CC 143/2021 2.7.2010. It is further alleged that the office of Executive Engineer, PW, Ports and Inland Water Transport Department, Haveri, called for a tender for the development of Hiremugadoor-Kadakol Road via Krishnapur, K.B.Thimmapur, Basavanakoppa and upto Taluk border in Savanur Taluk of Haveri District at a tender price of Rs.1,49,07,000/-. It is alleged that the condition precedent for participating in the tender are that the participant should have completed developmental work equal to or at least 80% of the value of the current tender price. In order to qualify for the tender, the tenderer should have achieved in at least two financial years a minimum financial turnover of Rs.397.50 lakhs satisfactorily completed at least 80% of the contract value as a prime contractor, at least one similar work such as Road work of value not less than Rs.119.25 lakhs executed in any one year, the given quantities of listed work, only that person can participate in the e-procurement. It is alleged that the accused No.2 in order to bag the said tender, procured false work done certificate from Asst. Executive Engineer and the Commissioner of CMC, Haveri certifying that the accused No.2 has completed the work order No.2/5:2009-10 dated 28.07.2009 relating to CMSMTDP package ward No.5, 6, 15, 18, 20 and 29 - construction of cement concrete drains amounting to Rs.2.15 crores
-9- Spl.CC 143/2021 and the same has been completed satisfactorily. For the same work order stated above, another work done certificate was issued by the accused No.4-Commissioner and also certified by the Asst. Executive Engineer that the accused No.2 has executed the said work contract for Rs.1.50 crore and the work was completed on 15.12.2009. The accused No.2 has also procured false Contract Account for the year ending 31.3.2009 and 31.3.2010.
It is further alleged that on perusal of the Contract Account for the year ending 31.03.2009, the annual turnover shown is Rs.4,00,25,697/-. The contracts bagged from the Executive Engineer, PRE Division amounts to Rs.3,32,10,099/- and from MADB amounts to Rs.58,10,056/- which is totally false and baseless. The statement issued by MADB showing annual turnover of accused No.2 for the year 2009-09 is Rs.3,59,539/- whereas the forged and fabricated contract account show Rs.58,10,056/- as amount received from MADB. Further the contract account for the year ending 31.3.2010 show a total turnover of Rs.4,05,92,956/- and the contracts bagged from Executive Engineer PRE Division and MADB amounts to Rs.3,32,07,999/- and Rs.58,14,456/- respectively, whereas the TDS certificate issued by the Executive Engineer, PRE Division, Haveri,
- 10 - Spl.CC 143/2021 indicates that the total value of the contracts bagged for the year 2009-10 after TDS amounts to Rs.36,06,345/- and the statement issued by MADB showing annual turnover of the accused No.2 for the year 2009-10 is Rs.9,16,782/- of which Rs.7,95,436/- was paid to the accused No.2 after deductions.
It is alleged in the complaint that the Executive Engineer's Office, PWD Dept., issued a letter to the Commissioner, dated 18.03.2011, the Asst. Executive Engineer, CMC, Haveri, to certify the work order amounting to Rs.1.50 crore asserted to have been executed by the accused No.2. The executive Engineer, Haveri has addressed a letter dated 28.03.2011 to the Superintendent Engineer, PW, P & IWTD Circle, Dharwad stating that Sri S.R.Bellary failed to fulfill the tender conditions and as such the bid of accused No.2 has been accepted. It is further alleged that the Executive Engineer, Haveri, issued a letter dated 25.5.2011 to the accused No.2 herein accepting the tender for development work of Hiremugadoor. The Executive Engineer, Haveri also issued letter to proceed with the aforesaid developmental work and the agreement was also executed between the Executive Engineer, PW, P&IWTD Division, Haveri and accused No.2. The accused No.1 has declared his assets and
- 11 - Spl.CC 143/2021 liabilities before Lokayukta as required under law in Form No.4 for the year ending 2009 as well as 2010 respectively. In these two declarations, the accused No.1 has clearly mentioned that the accused No.2 and 3 are his sons and his dependents. It is alleged that the accused No.2 and 3 are sons of accused No.1 and accused No.1 is head of the family. The contract carried by the accused No.2 and 3 are not their independent contract and they are carrying out the contract work only at the behest of the accused No.1 and on his behalf. The accused No.1 himself is a contractor and accused No.2 and 3 are merely name lenders and acting at the behest and on behalf of accused No.1 himself. The accused No.1 misusing his position as a Member of the Karnataka Legislative Assembly and taking advantage of his position is carrying out contract works through the accused No.2 and 3 and thereby obtaining monetary gains which amounts to corruption under the Prevention of Corruption Act. The accused No.4 to 7 are public servants have found to be obliging in every way to the accused No.1 to 3 by misusing their position as public servants and found to be assisting the accused No.1 to 3 and abetting the crimes by misusing their official position, by issuing false work done certificates and such other required documents. The accused No.1 to 3 are carrying out their illegal activities and committing crimes which
- 12 - Spl.CC 143/2021 are found to be continuously aided and abetted by accused No.4 to 7. Hence, the private complaint filed by the complainant by making allegations against the accused persons.
The allegations made against the accused No.8 Sri P.S.Chandramohan, AEE, and accused No.9 Sri K.Krishnanaika in the charge sheet is that they had issued false work done certificates mentioning that the accused No.2 had done the work of metalling and asphalting work of Karadigudda Road situated at Nagendranamatti village, the cost of the work Rs.1.50 Crore, date of the work order as 28.07.2009 and completed on 15.12.2009 and further certified that the contractor has completed the work satisfactorily. It is further alleged that when the Executive Engineer, PWD, Haveri forwarded the above certificates for verification, accused No.4 Sri H.K.Rudrappa, Commissioner, CMC, Haveri and accused No.5 Sri H.K.Kallappa, AEE, CMC, Haveri have re-endorsed the false certificates and returned to PWD certifying the same as genuine.
4. After filing of the charge sheet, the District and Sessions Judge and Special Judge for P.C.Act, Haveri took cognizance of the offence against accused persons and P.C.No.3/2012 was registered as Spl.C.C No.12/2013 against the accused No.1 to 9 for the offences
- 13 - Spl.CC 143/2021 punishable under Sec.197, 198, 409, 420 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
5. During the pendency of the case, accused No.6 was reported dead and therefore, case against accused No.6 was abated. After appearance of the accused persons and after hearing both sides, District & Sessions Judge and Special Judge, Haveri framed charges against the accused No.1 to 9 for the offences punishable under Sec.197, 198, 409, 420 R/w Sec.34 and 149 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988. The accused No.1 to 5, 7 to 9 have pleaded not guilty and claimed to be tried.
6. On 30.01.2021, Prl. District and Sessions Judge and Special Judge, Haveri passed order for transferring the case to this Court i.e., Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/ MLAs in the State of Karnataka. After receipt of the records, this Court registered the case as Spl.CC No.143/2021 and this Court issued summons to the accused No.1 to 5, 7 to 9. In pursuance of summons, accused No.1 to 5, 7 to 9 appeared before this Court and got released on bail and this Court altered the charge, read over and explained to accused No.1 to 5, 7 to 9, they pleaded not guilty and claimed to be tried.
- 14 - Spl.CC 143/2021
7. To substantiate the case against the accused persons, prosecution examined in all 13 witnesses as PW1 to PW13 and got marked documents as per Ex.P.1 to Ex.P.99 and closed its side.
8. After closure of the prosecution evidence, accused were examined U/s.313 of Cr.P.C, so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. The accused No.1 to 5, 7 to 9 have denied their complexity in the crime and did not choose to lead any defence evidence on their behalf.
9. Heard the arguments of learned Public Prosecutor for State and learned counsel for the accused. Meticulously, perused the records.
10. The points that arise for my determination are:-
1. Whether the private complaint filed by the complainant is not maintainable ?
2. Whether the prosecution against accused No.1 is vitiated by the lack of previous sanction by the competent authority?
3. Whether the prosecution against accused No.4, 5, 7 to 9 are vitiated for want of valid sanction?
- 15 - Spl.CC 143/2021
4. Whether the prosecution proved that the accused No.2 and 3 corruptly used the false work done certificates as true certificates issued by accused No.4, 5, 7 to 9 to establish their eligibility to procure civil contracts, knowing that the same to be false, under the influence of accused No.1 and misused the government Grants?
5. Whether the prosecution proved that the accused No.4, 5, 7 to 9 being public servants issued false work done certificates in favour of accused No.2 and 3 to procure Civil Contracts work under the influence of accused No.1, knowing or believing that the such certificates are false?
6. Whether the prosecution proved that the accused No.4, 5, 7 to 9 being public servants issued false work done certificates to accused No.2 and 3 and the accused No.2 and 3 used the false work done certificates to procure civil contract works and to have unlawful gain and dishonestly misappropriated the government fund for their use and caused loss to the Government and committed criminal breach of trust?
7. Whether the prosecution proved that the accused No.4, 5, 7 to 9 being public servants issued false work done certificates in favour of accused No.2 and 3 to procure civil contract works and fraudulently and dishonestly deceived the government and got contract work and thereby cheated the government and made unlawful gain
- 16 - Spl.CC 143/2021 for themselves and thereby committed the offence of cheating?
8. Whether the prosecution proved that the accused No.1, 4, 5, 7 to 9 being the public servants, misused the public office and got allotted civil contract works under the influence of accused No.1 in favour of his sons i.e., accused No.2 and 3 and created false work done certificates and committed criminal misconduct, which is unbecoming of Government servant and used as true certificates to make unlawful gain and caused loss to the Government exchequer?
9. Whether the prosecution proved beyond all reasonable doubt that the accused No.1 to 5, 7 to 9 have committed offences punishable under Sec.197, 198, 409, 420 of IPC and Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988?
10. What order or sentence?
11. My answer to the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : In the Affirmative Point No.5 : In the Affirmative Point No.6 : In the Affirmative Point No.7 : In the Affirmative
- 17 - Spl.CC 143/2021 Point No.8 : In the Affirmative Point No.9 : In the Affirmative Point No.10 : As per final order, for the following REAS O NS
12. Point No.1:- The prosecution has alleged that the accused No.1 to 5, 7 to 9 have committed the offences punishable under Sec. under Sec.197, 198, 409, 420 of IPC and Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988. The case of the prosecution is that the accused No.1 being MLA for the year 2008 to 2013 of Haveri Constituency, got civil contract works in the name of his two sons i.e., accused No.2 and 3 though they are not eligible for getting contract works and under the influence of accused No.1, accused No.4, 5, 7 to 9 created a false work done certificates and issued to accused No.2 and 3, and the accused No.2 and 3 misused the work done certificates and produced the same to get civil contract works and thereby cheated the Government and committed criminal breach of trust and it amounts to criminal misconduct under the provisions of the Prevention of Corruption Act, 1988.
13. The learned counsels for the accused have contended that the private complaint filed by the complainant is not maintainable and the complainant was a civil contractor and there
- 18 - Spl.CC 143/2021 was dispute between him and accused No.4, 5, 7 to 9 with regard to clearing of bills of his contract work and the complainant filed the complaint under personal revenge and he has abused the process of law. They further contended that the complainant has not signed the complaint and therefore the private complaint is vitiated and the prosecution initiated is against the principles of law.
14. It is pertinent to note that the complainant Sri Shashidhar Mahadevappa Hallikeri, lodged a private complaint before the Prl.
District and Sessions Court and Special Judge for Lokayukta, Haveri and said private complaint was registered as PCR No.3/2012 and the said private complaint was referred for investigation and at the time of presenting the private complaint, he has produced some documents and the I.O. has collected number of documents by writing letters to various Departments. Now on perusal of the private complaint, it reveals that the complainant has not signed the complaint. The complaint was signed by the Advocate for complainant. The complainant has filed affidavit and in the affidavit, the complainant has stated that the averments made in para No.1 to 10 of the complaint accompanying this affidavit are true to the best of his knowledge, information and belief.
- 19 - Spl.CC 143/2021
15. Whether the private complaint is maintainable is to be answered in view of the contention taken by the accused. Now Sec.2(d) of the Cr.P.C., defines complaint which means, 'any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report'. Thus the definition of the word 'Complaint' does not say that a complaint must be in writing and signed by the complainant. It says that the complaint may be oral given to a Magistrate. Sec.200 of Cr.P.C., does not say that the complainant has to sign the complaint. Therefore, merely because the complainant has not signed the complaint, the prosecution initiated on private complaint does not vitiate.
16. The learned counsels for the accused have further argued that the private complaint filed under Sec.200 of Cr.P.C., is hit by the pronouncement of Hon'ble Apex Court in Priyanka Srivastav and another Vs. State of Uttarpradesh and others reported in (2015) 6 SCC 287. The learned counsels for the accused have produced the copy of the decision. They further contended that the accused No.1 has assumed public office and discharged his official duty from
- 20 - Spl.CC 143/2021 25.5.2008 to 30.11.2012 as public servant. I have gone through the said decision of Hon'ble Apex Court rendered in Priyanka Srivastava case. The Hon'ble Apex Court has rendered the said judgment in Crl.Appeal No.781 of 2012 decided on 19.03.2015. Hon'ble Supreme Court of India has observed that the applications filed under Sec.156(3) Cr.P.C., ought to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. In the judgment of "Mrs. Priyanka Srivastava and Another Vs. State of U.P. and others" in Crl.Appeal No.781 of 2012 decided on 19.03.2015, the Hon'ble Apex Court has held as under:
"27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory
- 21 - Spl.CC 143/2021 provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
- 22 - Spl.CC 143/2021
17. Hon'ble Supreme Court of India has further observed that "we are compelled to say so as such kind of applications are being filed in ruthless manner without taking any responsibility whatsoever, only to harass certain persons.
18. Now, I have gone through the order sheet of PCR No.3/2012, the private complaint was presented on 9.10.2012 and the private complaint was referred for investigation under Sec.156(3) of Cr.P.C., on 17.10.2012. The judgment was rendered by the Hon'ble Apex Court in the above referred case on 19.3.2015. Therefore, the learned Special Judge for Lokayukta, Haveri ordered for investigation under Sec.156(3) of Cr.P.C., much prior to the pronouncement of the judgment by the Hon'ble Apex Court.
Therefore, with due respect, I am of the opinion that the said judgment is not applicable to the facts of this case. Therefore, the complaint is maintainable and not vitiated. Accordingly, I answer point No.1 in the Negative.
19. Point No.2 and 3:- Learned counsels for accused submitted that the prosecution has failed to obtain sanction to prosecute accused No.1, 4, 5, 7 to 9. Specifically he argued that the original complaint was filed on 9.10.2012, police have registered FIR
- 23 - Spl.CC 143/2021 on 30.10.2012, cognizance was taken on 12.10.2012 and therefore, at the time of taking cognizance, the prosecution had not obtained valid sanction in respect of accused No.1 and the sanction obtained in respect of accused No.4, 5, 7 to 9 are not in accordance with law and the competent authority have not applied their minds, not verified the original records and blindly issued sanctions.
20. In support of his arguments, the learned counsels for accused has relied on the following decisions:
1. "Suresh Kumar Bhikamchand Jain Vs. Pande Ajay Bhushan" in Crl. Appeal Nos. 1114-15 of 1997 (Arising out of SLP (Crl.) Nos.917-918 of 1997 dated 27.11.1997, wherein Hon'ble Apex Court has held as under:
"After giving our careful consideration to the facts and circumstances of the case and the respective submission of the learned counsel for the parties it appears to us that the question of requirement of sanction under Section 197 Criminal Procedure Code should not be confused with the scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognizance of offence has been taken by the learned Magistrate can lead evidence in support of his defense. The question for consideration is when a Magistrate on the basis of a complaint issued process for appearance of the accused on being satisfied that there is sufficient ground for proceeding
- 24 - Spl.CC 143/2021 and the accused appears before the Magistrate and takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the court has no power to take cognizance except with the previous sanction of the Government as required under sub-section (1) of Section 197 of the Code of Criminal Procedure than the Magistrate would be required to decide the plea on the materials on record then existed or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197(1) of the Code? According to Mr. Sibal, the Magistrate can examined the plea only with reference to the materials available on record and at that stage accused cannot have any right to produce any evidence to support his plea. According to the learned Attorney General, if the accused is debarred from producing the relevant materials to indicate that the acts complained of were in fact committed by the accused in discharge of his official duty and he can only produce the materials when the criminal proceeding reaches the stage under sub-section (4) of Section 246 in any warrant case instituted otherwise than on police report, then the very object and purpose of the provisions of Section 197 will get frustrated and the public servants will have to face irresponsible or vexatious proceeding even in respect of acts done by him in discharge of official duty. According to the learned Attorney General, therefore, though at that stage it may not be permissible for an accused to lead any oral evidence but there cannot be any bar for him to produce
- 25 - Spl.CC 143/2021 necessary documents including official records for the limited purpose of consideration as to whether Section 197 can be said to attracted and whether there exists a valid sanction."
2. "Babu Rao Chinchansur Vs. State by Lokayukta Police, Bengaluru Urban District, Bengaluru and another" in Crl. Petition No. 3 of 2013 decided on 13.02.2013, Hon'ble High Court of Karnataka has held as under:
"Regarding Point No.4:
29. Section 19(1) of the P.C. Act directs that no Court shall take cognizance of the offence punishable under Sections-7, 10, 11, 13 & 15 alleged to have been committed by the public servant, except with the previous sanction of the authorities enumerated in Clauses (a) to (c). Of course, apparent reading of section would indicate that the requirement of previous sanction is contemplated at the time of the Court taking cognizance. In the case on hand, of course, the learned Special Judge has not taken cognizance since he chose to refer the complaint for investigation in exercise of power under Section 156(3) of Cr.P.C. Therefore, the impugned order is the one passed during pre-cognizance period.
30. In Bahamanian Swamy's case referred to supra, the Apex Court while rejecting the argument of learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988
- 26 - Spl.CC 143/2021 Act arises only at the stage of taking cognizance and not before, has ruled thus in Paragraphs-34 and 64:
"34. The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term "cognizance" has not been defined either in the 1988 Act or Cr.P.C, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially."
64. I also entirely agree with the conclusion of the learned brother Singhvi, J., that the argument of the learned Attorney General that question for granting sanction for prosecution of a public servant charged with offences under the 1988 Act arises only at the stage of cognizance is also not acceptable. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments."
- 27 - Spl.CC 143/2021 64.1. Recently a unanimous three-judge Bench decision of this Court in State of Uttar Pradesh-Vs-Paras Nath Singh, speaking through Justice Pasayat.J. and construing the requirement of sanction, held that without sanction: (SCC p.375, para 6) "6. ..... '10...... The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty."(emphasis supplied)
3. "Tulasiram and others Vs. The state of Karnataka and others" in Crl. Petition No. 200248/2015 decided on 02.06.2015, Hon'ble High Court of Karnataka has held as under:
"This Court in Cri. P. No. 200316/2014 between Yellappa v. State of Karnataka, disposed of on 18.02.2015, relying open the decision in Anil Kumar v. M.K. Ayyappa (supra) has reiterated that, 'the object is that if a private complaint is filed either for referring the matter to the police for investigation or for the purpose of taking cognizance, the learned Magistrate has to go through the contents of the complaint and he should come to the conclusion that either he can refer the matter to the police for investigation or he himself can
- 28 - Spl.CC 143/2021 take cognizance for the offence. When the learned Magistrate can take cognizance directly on the basis of the private complaint, it requires a valid sanction so as to refer the matter to the police for investigation or to take cognizance by himself. In this particular case, after going through the contents of the complaint, the Magistrate has to satisfy himself that it is a fit case either to take cognizance or to refer the matter to the police for investigation. In either of the cases, a sanction under Section 19(1) of the PC Act is an absolute legal requirement as per the decision in Ayyappa's case, cited supra."
4. "Sri Dhanrajbhai Hirabhai Patel Vs. State of Gujarat"
in Crl. Revision Application No.624 / 2020 decided on 13.01.2021, Hon'ble High Court of Gujarat at Ahmedabad has held as under:
"11. Adverting to the facts of the present matter, the Special (A.C.B.) Judge had to follow the procedure as contemplated under Section 210 Cr.P.C., since police investigation was in progress in relation to the offence alleged before the Special Magistrate. The report of the police was found to be cryptic and ambiguous, did not disclose any offence, as alleged. In case of Subramanium Swamy Vs. Manmohan Singh and Another, reported in (2012) 3 SCC 64, it was held that there is no provision in the P.C. Act, 1988 or Cr.P.C., which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. The complaint was registered by the Court, when the matter was already investigated by P.I., A.C.B. Police Station, Banskantha, the Court could only ask for the report, which did not disclose any offence and the report recommended for
- 29 - Spl.CC 143/2021 departmental inquiry. No sanction order was procured by the A.C.B. Police. Subramanium Swamy case (supra) recognizes the right of private citizen for filing complaint against public servant and to obtain sanction for prosecuting public servant, such right flows from rule of law. The authority concerned are to follow directions given in case of Vineet Narain v. Union of India, reported in (1998) 1 SCC 226, upon sanction application by a private citizen, who has to be informed of the decision on sanction application to enable him to avail appropriate remedy. However, thus, it becomes crystal clear that as soon as complaint is lodged, if the Magistrate goes through the contents of the complaint in order to proceed and refer the matter to the police for investigation under Section 156(3) of the Cr.P.C. or to take any other step as contemplated under Section 200 of Cr.P.C., it is deemed that he has taken cognizance of the contents of the complaint and came to the conclusion that it is a fit case either to refer it to the police for investigation or to be inquired into by the Court itself. Thus, even for the purpose of lodging a private complaint, order of sanction is an absolute legal requirement to prosecute under Section 19(1) of the P.C. Act. It is rightly held by the Special (A.C.B.) Judge, Palanpur that a trial without a sanction renders the proceedings ab initio void. There is no irregularity or infirmity in the order by the Special (A.C.B.) Judge."
5. "Sri Anil Kumar B.H. S/o Sri Hanumantha Raju B.H. Vs. The Lokayukta Police, Shivamogga" in Writ Petition No.24574/2013 (GM-RES) decided on 25.11.2021, Hon'ble High Court of Karnataka has held as under:
"At paragraph 32 the Apex Court does not hold that the judgment in the case of ANIL KUMAR is per incuriam. In fact, the Apex Court holds that it is not an acceptable
- 30 - Spl.CC 143/2021 proposition to contend that there would be some consequence to follow and the Magistrate cannot act in a mechanical and mindless manner and there has to be application of mind by the Magistrate while directing investigation under Section 156(3). It is after this the Apex Court refers the matter to a Larger Bench. The Larger Bench having seized of the matter is yet to conclude the proceedings. Therefore, the contention of the learned counsel appearing for the petitioners and the respondent that the issue at hand will have to await the decision of the Larger Bench is unacceptable more so in the light of the fact that the judgment in the case of Anil Kumar is not held to be per incuriam or bad in law."
6. "CBI Vs. Ashok Kumar Aggarwal" in Crl. Appeal No.1838 of 2013 decided on 22.11.2013, Hon'ble Apex Court has held as under:
"8. In view of the above, the legal propositions can be summarised as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant
- 31 - Spl.CC 143/2021 facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
7. "Bishambhar Dayal Srivastava Vs. State of U.P." in Crl. Appeal No.1566 of 1989 decided on 05.11.1993, Hon'ble High Court of Allahabad has held as under:
"It is settled principle of law that S.6 of the Act is of mandatory character. It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after he has satisfied that a case for sanction has been made constituting the offence. This should be done in two ways; either (I) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence to show that the facts placed before the sanctioning authority and the satisfaction arrived by it. Any case without a proper sanction must fail because, this being a manifest defect in the prosecution, the entire proceedings are rendered
- 32 - Spl.CC 143/2021 void ab initio. The policy underlying S.6 is that there should not be unnecessary harassment of a public servant."
21. The learned Special Public Prosecutor has argued that the accused No.1 was MLA for the period from 2008-2013 and demitted his office in the month of April-May-2013 and the charge sheet was filed on 15.9.2013 and thereafter, cognizance was taken by this Court, thus when the cognizance was taken by this Court, the accused No.1 was not public servant. In support of his argument, he has relied upon a decision reported in "Parkash Singh Badal and another Vs. State of Punjab and others" reported in (2007)1 SCC 1, wherein Hon'ble Apex Court has held as under:
"If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public
- 33 - Spl.CC 143/2021 servant, Section 6 is not attracted. This aspect is no more res integra. In S.A. Venkataraman v. State (1958 SCR 1040) this Court held as under:
"In our opinion, in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority."
And this view has been consistently followed in C.R. Bansi case and K.S. Dharmadatan v. Central Government (1979 (3) SCR 832). It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. (emphasis supplied)"
22. I have gone through the entire records of the case as mentioned above. The private complaint was filed by the
- 34 - Spl.CC 143/2021 complainant on 09.10.2012, the complaint was referred to Karnataka Lokayukta for investigation under Sec.156(3) of Cr.P.C., on 17.10.2022. The learned counsel for accused has contended that the Court had taken cognizance on 17.10.2012, while referring the complaint for investigation under Sec.156(3) of Cr.P.C. It is a pre- cognizance stage. While referring the complaint for investigation, my learned predecessor has noted in the order sheet that it is a fit case to take cognizance under Sec.190 of Cr.P.C., and ordered for investigation of the case under sec.156(3) of Cr.P.C. and directed the Lokayukta Police to investigate the matter and to submit the report. The learned counsel for the accused might have confused the word 'cognizance' mentioned in the order dated 17.10.2012 and stated that the Court had taken cognizance on 17.10.2012. But the Court has not taken cognizance on that day. Further, it is settled principle of law that while referring the complaint for investigation under Sec.156(3) of Cr.P.C., the Court need not take cognizance under Sec.190 of Cr.P.C.
23. The Hon'ble Supreme Court of India in the case of Anil Kumar and others Vs. M.K.Aiyappa and another reported in
- 35 - Spl.CC 143/2021 (2013) 10 SCC 705 while discussing the various aspects of taking cognizance has observed as follows:
"11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in inquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.
12. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage."
24. Hon'ble Apex Court has clearly held that when a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Sec.190 of Cr.P.C., and proceed further in inquiry or trial. Without taking cognizance under Sec.190 of Cr.P.C., the Court may direct an investigation under Sec.156(3) of Cr.P.C. Therefore, referring the complaint under Sec.156(3) is pre-
- 36 - Spl.CC 143/2021 cognizance stage and the Court is not empowered to take cognizance and refer the complaint for investigation of the case under Sec.156(3) of Cr.P.C. Therefore, I am of the opinion that the contention of the accused that the Court has taken cognizance on 12.10.2012 is not correct and the Court has taken cognizance only after filing of the charge sheet i.e., on 16.09.2017.
25. It is true that Hon'ble Apex Court in the case of Anil Kumar and others Vs. M.K.Aiyappa and another held that sanction is required even for referring the complaint for investigation under Sec.156(3) of Cr.P.C., and the said judgment was rendered on 01.10.2013. In the case on hand, the complaint was referred for investigation on 17.10.2012. Hon'ble High Court of Karnataka in W.P.No.13779-13780 of 2013 in the case of M.K.Aiyappa Vs. Anil Kumar and others has passed order on 21.05.2013. Further, the accused No.1 was in office till April-May 2013 and this Court had taken cognizance after filing charge sheet on 16.09.2013. So, at the time of taking cognizance of the case against accused No.1, as per the Prevention of Corruption Act, 1988, sanction was not required. But the sanction is required only as per the Prevention of Corruption (Amended) Act, 2018, even after retirement of the public servant.
- 37 - Spl.CC 143/2021
26. Learned Special Public Prosecutor has relied on the following decisions;
1. "Punjab State Warehousing Corporation Vs. Bhushan Chander and another" reported in (2016)13 SCC 44, wherein Hon'ble Apex Court has held as under:
"As regards the invocation of Section 197 of Cr.P.C, a survey of the precedents makes it absolutely clear that there has to be a reasonable connection between the alleged omission or commission and the discharge of the official duty or the act committed was under the colour of the office held by the official concerned."
2. "Rakesh Kumar Mishra Vs. State of Bihar and others"
reported in (2006)1 SCC 557, wherein Hon'ble Apex Court has held as under:
"6. xxxxxxxxxxxxx ...........Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule
- 38 - Spl.CC 143/2021 to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
7. At this juncture, we may refer to P. Arulswami v. State of Madras, AIR (1967) SC 776, wherein this Court held as under:
"... It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."
- 39 - Spl.CC 143/2021
8. It would be appropriate to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:
"197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
*** (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."
9. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in
- 40 - Spl.CC 143/2021 motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, `no court shall take cognizance of such offence except with the previous sanction'. Use of the words, `no' and `shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word `cognizance' means `jurisdiction' or `the exercise of jurisdiction' or `power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
- 41 - Spl.CC 143/2021
10. Such being the nature of the provision the question is how should the expression, `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? `Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar, [1979] 4 SCC 177, it was held :
"17. The words `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, `it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
(emphasis supplied)
3. "Subramanian Swamy Vs. Manmohan Singh and another" reported in (2012)3 SCC 64, wherein Hon'ble Apex Court has held as under:
"We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose
- 42 - Spl.CC 143/2021 prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy."
4. "State of Maharashtra through CBI Vs. Mahesh G. Jain" reported in (2013)8 SCC 119, wherein Hon'ble Apex Court has held as under:
"14. From the aforesaid authorities the following principles can be culled out: -
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his
- 43 - Spl.CC 143/2021 satisfaction was arrived at upon perusal of the material placed before him.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
27. Hon'ble Apex Court in Parkash Singh Badal case has clearly held that when the offence is alleged to have been committed, the accused was a public servant but by the time the Court is called upon to take cognizance of the offence committed by him as a public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offences alleged against him. Therefore, the provisions of Section 6 of the Act do not apply and the
- 44 - Spl.CC 143/2021 prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.
28. As far as accused No.4, 5, 7 to 9 are concerned, they are public servants and the prosecution has obtained sanction and my learned predecessor has taken cognizance on the basis of the sanction produced by the prosecution. PW1 is the Competent Authority as far as issuance of sanction of accused No.4 is concerned, PW3 is the Competent Authority as far as issuance of sanction of accused No.5 and 8 are concerned, PW4 is the Competent Authority as far as issuance of sanction of accused No.6 and 7 are concerned and PW5 is the Competent Authority as far as issuance of sanction of accused No.9 is concerned. Hon'ble Apex Court in the above referred decisions held that as regards invocation of Section 197 of Cr.P.C., a survey of the precedents makes it absolutely clear that there has to be a reasonable connection between the alleged action or commission and the discharge of the official duty or the act committed was under
the colour of office held by the officer concerned. It is further held that it is not the duty which requires examination so much as the act, because the official act can be performed both in discharge of his official duty as well as in dereliction of it. The act must fall within
- 45 - Spl.CC 143/2021 the scope and range of the official duty of public servant concerned.
Anyhow, the prosecution has obtained sanction and the criminal misconduct and the offence of cheating and criminal breach of trust cannot come in the purview of discharge of the official duty.
29. PW1 Sri S.Renukaradhya, Retired Addl. Secretary, Irrigation Department has deposed that on perusal of the documents sent to him prima facie found that the case has been made out against the accused No.4 H.K.Rudrappa and hence, he has issued sanction order. PW3 Sri Mariyappa, Retired Deputy Secretary, Backward Class Welfare Department has deposed that on verifying the documents produced by the I.O., prima facie found that the case has been made out against the accused No.5 and 8 and accordingly he has issued sanction order to prosecute accused No.5 H.K.Kallappa and G.S.Chandramohan. PW4 Dr.Manjula.N, Managing Director of KPTCL, Bengaluru has deposed about issuance of Sanction to prosecute accused No.6 K.Manjunath and accused No.7 S.P.Kamadod. She has deposed that after verifying the records placed before her, she has issued sanction. PW5 A.N.Tyagaraj, Retired Chief Engineer, Communication and Building, has deposed about issuance of sanction to prosecute accused No.9 K.Krishna Naik.
- 46 - Spl.CC 143/2021
30. PW3 Mariyappa has stated that acting under Rule 18 and 19 of Karnataka Transaction of Business Rules 1977, the then Secretary of Public Works and Ports and Inland Water Transport Department (PW & PIWTD for short) Sri S.S.Viraktmath had issued sanction order dated 9.7.2013, which is marked as Ex.P.45. Since, Ex.P.45 contained many mistakes, a letter requesting correction of the sanction order was sent by the Deputy Director of Police, Karnataka Lokayukta. Considering the same, some rectification was made in the earlier order and new sanction order was issued against accused No.5 and 8 as per Ex.P.44. He further deposed that after considering the FIR, documents and statement of witnesses, he has issued sanction order.
31. PW4 Dr.N.Manjula has deposed that she was working as Director of Municipal Administration and the Deputy Director General of Police, Karnataka Lokayukta, requested to issue sanction to prosecute accused No.6 and 7 and sent investigation report, FIR, statement and other documents and acting under the provisions of the Karnataka Municipalities (Recruitment of Officers and Employees) Rules 2010, the then Director Sri M.S.Ravishankar had issued sanction as per Ex.P.46. She deposed that since it contained some
- 47 - Spl.CC 143/2021 mistakes, the Deputy Director General of Police, Karnataka Lokayukta, once again requested to issue new sanction order rectifying the mistakes and after considering the FIR, statement of witnesses and other documents, she has issued sanction order as per Ex.P.47.
32. PW5 Sri A.N.Tyagaraj has deposed that the Deputy Director General of Police, Karnataka Lokayukta requested him to issue sanction order to prosecute accused No.9, since he is the appointing authority and Competent Authority to dismiss accused No.9 and on verifying the investigation report, FIR, statement of witnesses and other documents submitted by the Deputy Director, he has issued sanction as per Ex.P.48.
33. In the case of State by Police Inspector Vs T.Venkatesh Murthy reported in (2004) 7 SCC 763, the Hon'ble Apex Court has observed that "mere omission, error or irregularity in according sanction would not affect validity of the proceeding unless it results in failure of justice". Therefore, the prosecution initiated against the accused No.4, 5, 7 to 9 do not vitiate on the ground that the sanction are invalid. Accordingly, I answer point No.2 and 3 in the Negative.
- 48 - Spl.CC 143/2021
34. Points No.4 to 8: These points are taken up together for common discussion as they are related to each other and to avoid repetition in the discussion.
35. Learned counsels for accused vehemently argued that the accused No.1 being MLA for the period 2008-2013 had given letter to PW11 for release of Rs.50 lakhs from Karnataka Legislatures Local Area Development Fund Scheme and being the Member of Malnad Area Development Board, he had given letter to PW9 for release of Rs.30 lakhs under Malnad Area Development for the public works through tender, in a open and public bid, the accused No.2 and 3 had submitted their bids and quoted lowest cost for some public works and they had succeeded, after completion of said public works without any complaints by the public concerned, amounts were released to accused No.2 and 3.
36. They further argued that there is specific evidence in deposition of PW8 and no specific documents have been produced and no authenticated documents have been produced by the prosecution to prove the allegations. They further argued that though the work worth of Rs.20 lakhs has been done by the third party, the said third party has not complained. They have not been examined,
- 49 - Spl.CC 143/2021 though the accused No.2 had produced false work done certificate, issued by the accused No.4 to obtain the contractor's licence from the Chief Engineer, Bengaluru, astonishingly there is no complaint by the said authority.
37. Learned counsels for accused have further argued that there is no further case by the prosecution as to where and how the said document has been used as genuine and there is no evidence at all. The prosecution suppressed the date when the assets and liabilities statement was filed, and there is no bar to apply for tenders and executing public works, after attaining majority. He further argued that PW2 being the complainant and is approved partner of conspiracy of the present false complaint, his evidence cannot be considered as he is inimical towards accused No.4 to 9, exhibits marked as Ex.P.4 to 42 are the documents said to have obtained from him under RTI Act, without proving the same that those documents are obtained under RTI Act, cannot be considered. PW9 and 11 have denied the misuse of public office in getting public works for his sons accused No.2 and 3. The evidence of PW7 is not helpful to prove any offence alleged against the accused No.1, as there is no incriminating evidence either oral or documentary is forthcoming.
- 50 - Spl.CC 143/2021
38. They further argued that PW8 has stated that he has issued documents downloaded from the computer kept in his office without certifying them as required under Sec.65(B) of the Evidence Act, the said documents are not original documents and the I.O. has not at all brought the same in to light. PW13 being the I.O. has stated that he has not made any effort to get the original documents. The uncorroborated evidence of PW2, PW8 and PW13 would not make out any case against the accused No.2. Evidence of PW6 is not helpful to prove the case against accused No.2. The evidence of PW10 is also of no use which does not corroborate evidence of PW2, PW8 and PW13. Except self serving evidence of PW2 and evidence of arbitrary investigation of PW13, there is no evidence on record to prove the guilt of the accused No.3.
39. They further argued that the evidence of I.O. would reveal that he has not adopted any procedure known to law and conducted investigation at his whims and fancy. There is no evidence except inconsistent deposition and untenable documentary evidence that all the accused have conspired and committed offence. The evidence of PW2, 8 and 13 and documents at Ex.P.66 and 67 prove that the accused No.2 has not produced false work done certificate
- 51 - Spl.CC 143/2021 and work amounting to Rs.1.50 crores and 2.15 crores. No witness has been examined in proof of Ex.P.91. Ex.P.94 reveals that the accused No.3 has provided work done certificate amounting to Rs.19 lakhs for the same year as against ExP.96 and Ex.P.89, which shows that the said work mentioned in Ex.P.94 and Ex.P.89 were done by H.M.Bovi and H.P.Maradur. The prosecution has not examined H.M.Bovi and H.P.Maradur.
40. Learned counsels for accused further argued that Ex.P.29 and 30 are copies issued under RTI Act, without support of the Act, they are not original documents and it cannot be looked into to convict the accused for the alleged offences. The prosecution has not examined P.Y.Chitgeri and H.M.Bovi, to whom the work was allotted amounting to Rs.1.50 crores and 2.15 crores. The prosecution has not examined Maraduru, who executed the work under CMSMTDP Package No.5. No witness has been examined in proof of Ex.P.91 and
96. Therefore, the prosecution has failed to prove the ingredients of Sec.197, 198, 409 and 420 of IPC and there is no demand for illegal gratification and therefore, the essential ingredient of Sec.13(1)(d) is not proved by the prosecution through cogent evidence. Hence, prayed for acquittal of the accused.
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41. In support of his argument, learned counsel for accused has relied on the following decisions:
1. "Sri Krishna Murthy S/o H.K.Dasappa Vs. State by Karnataka Lokayukta Police, Tumkur by State Public Prosecutor" reported in 2022 1 KCCR 722, wherein Hon'ble High Court of Karnataka has held as under:
"24. It is well-settled law that demand of illegal gratification is a sine qua non for constituting offences under Sections 7 and 13 of the PC Act, 1988. The very recovery of tainted currency notes is not sufficient to convict the accused without specific evidence that he had in fact received bribe from the complainant. Whereas in the instant case, criminal law was set into motion on receipt of a complaint at Exhibit P2 made by PW-2 / Kumar. PW-3 is the shadow witness who accompanied the complainant, but the burden rests on the prosecution to displace the statutory presumption raised under Section 20 of the PC Act, 1988 by bringing worthwhile evidence to establish with reasonable probability that money other than illegal remuneration was accepted by the accused / Government servant as a motive or reward to forebear to do any official act under Section 7 of the PC Act, 1988."
2. "V.Venkatesan Vs. State" in Crl.O.P.No.6998 of 2019 and Crl.M.P. No.3860 of 2019 decided on 28.03.2019, Hon'ble High Court of Judicature at Madras has held as under:
- 53 - Spl.CC 143/2021 "16.As rightly pointed out by the learned Additional Public Prosecutor no particulars are available with regard to what was the information sought for in the application under the RTI Act and what was the reply given by the concerned authorities with regard to the same and in such circumstances, it would be unsafe to accept the documents without formal proof and thereby the trial Court has rightly dismissed the petition."
3. "Shashi Lata Khanna Vs. State of Delhi" in Crl.Revision Petition No. 47 of 2005 decided on 15.07.2005, Hon'ble High Court of Delhi has held as under:
"5. Before proceeding further in the present case it may be mentioned that the alleged rent note dated 2nd June 1983 which is stated to have been forged by the accused persons and which is stated to have been used by the accused persons knowing or at least having reasons to believe the same to be forged was never produced in original in the court. For an offence of forgery of document it is necessary that the original document should have been produced in the court. Although it is the case of the prosecution that the original rent note was in the possession of the accused persons and they have produced the same and on the other it is the case of the accused that they tendered the original rent note to the investigating officer at the time of the investigation but it was deliberately not produced by the prosecution, the fact remains is that the original alleged forged document was never produced before the court. We
- 54 - Spl.CC 143/2021 cannot forget that the burden to prove a criminal case is on the prosecution and quite heavy."
42. Learned Special Public Prosecutor has filed his written arguments and submitted that during the year 2008-09, the accused No.2 has not performed any works and during the year 2009-10, he has performed works amounting to Rs.47.39 lakhs. The accused No.2 has not performed the works amounting to Rs.3,32,07,999/- stated by accused No.2 in his contract account submitted by him to procure the work. He further argued that on perusal of Ex.P.67, it is clear that the accused No.2 has furnished false work done certificate, which states that he has performed work under CMSMTDP package Ward No.5, 6, 15, 18, 20 and 29 amounting to Rs.2.15 Crore and work of road which connects Nehru Nagar to Nagendranamatti amounting to Rs.1.50 crore. He has further argued that on perusal of evidence of PW2, PW8 and PW13 and comparison of Ex.P.67 with Ex.P.91 prove the allegations that the accused No.2 has got issued false work performance certificates stating the performance of works amounting to Rs.1.50 crores and 2.15 crores by the influence of accused No.1 who was the MLA at the time of issuance of certificates. He further argued that in the assets and liability list submitted by the accused No.1 for the year 2009-10 in Form No.IV, he has specifically
- 55 - Spl.CC 143/2021 mentioned that the accused No.3 was student and has no source of income of his own. Ex.P.94 submitted by accused No.3 shows that the accused No.3 has furnished work performance certificate of the work under S.F.C.Package No.2 amounting to Rs.20 lakh. Ex.P.96 reveals that during 2009-10, the works under S.F.C. Package No.2 at Wards No.3, 4, 5, 13 and 14 amounting to Rs.19 lakhs was allotted Sri H.M.Bhovi. Therefore, consistent evidence of PW2 and PW3 with comparison of Ex.P.6, Ex.P.92 to Ex.P.96 clearly prove that the accused No.3 has provided the false performance certificate which states that he has performed the work amounting to Rs.19 lakhs, whereas the work was performed by Sri H.M.Bovi. Accused No.1 has misused his position and influenced accused No.4 and got issued false work performance certificates in favour of accused No.2 and 3, the accused No.4, 5, 7 to 8, knowing that the works not performed by accused No.2 and 3, with common intention to aid the accused No.2 and 3 and under the undue influence of the accused No.1, have issued the false work performance certificates to accused No.2 and 3 and have committed the offences alleged against them.
43. In support of his argument, the learned Special Public Prosecutor has relied on the following decisions:
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1. "N.Raghavender Vs. State of Andhra Pradesh, CBI"
reported in (2021) SCC OnLine 1232, wherein Hon'ble Apex Court has held as under:
"Ingredients necessary to prove a charge under Section 409 IPC:
41. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (See: Sadupati Nageswara Rao v. State of Andhra Pradesh).
42. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression 'criminal breach of trust' is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:
(i) Entrusting any person with property or with any dominion over property;
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(ii) That person has dishonestly mis-appropriated or converted that property to his own use;
(iii) Or that person dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law or a legal contract.
43. It ought to be noted that the crucial word used in Section 405 IPC is 'dishonestly' and therefore, it pre-supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is 'mis-appropriates' which means improperly setting apart for ones use and to the exclusion of the owner.
44. No sooner are the two fundamental ingredients of 'criminal breach of trust' within the meaning of Section 405 IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409 IPC, for which it is essential to prove that:
(i) The accused must be a public servant or a banker, merchant or agent;
(ii) He/She must have been entrusted, in such capacity, with property; and
(iii) He/She must have committed breach of trust in respect of such property.
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45. Accordingly, unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner."
2. "Vijay Kumar Ghai and others Vs. State of West Bengal and others" reported in (2022)7 SCC 124, wherein Hon'ble Apex Court has held as under:
"32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -
"420. Cheating and dishonestly inducing delivery of property. -- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with
- 59 - Spl.CC 143/2021 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-
1. The representation made by the person was false.
2. The accused had prior knowledge that the representation he made was false.
3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
36. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr., the ingredients to constitute an offence under Section 420 are as follows:-
i) a person must commit the offence of cheating under Section 415; and
ii) the person cheated must be dishonestly induced to;
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a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.
3. In the case of "Smt. Bharathi and two others Vs. State of Karnataka" in Crl.Appeal No.1318/2015 decided on 23.7.2018 wherein Hon'ble High Court of Karnataka has held as under:
"16. The evidence of P.W.26 shows that the said document got marked without any objection. Therefore, when once objections were not raised for admission of the said document in evidence during the course of trial, at the subsequent stage no objection could be raised and it becomes final and such entries can be relied upon by the Court. The said point is made clear in the decision of the Hon'ble Apex Court in the case of RUKMINI NARVEKAR VS. VIJAY SATAREDKAR AND OTHERS reported in AIR 2009 SC 1013 referring to the decision of the Division Bench rendered in 2014. In view of the legal position clarified by the Hon'ble Apex Court in the subsequent decision referring to the Division Bench decision, the material produced by the prosecution is admissible in evidence and could be relied upon by the Court."
4. In the case of "Sri Sudhakara Vs. State by Turavanur Police Station" in Crl.Petition No.5657/2018 decided on 23.8.2018 wherein Hon'ble High Court of Karnataka has held as under:
- 61 - Spl.CC 143/2021 "These documents could be proved either by examining the author of the document or the person who received them."
44. Before discussing the evidence on record, it would be worthwhile to refer to the ingredients of the offences alleged against the accused to know whether the prosecution has proved the offences alleged against the accused by adducing evidence:-
Section Ingredients 197 Issuing or signing false Certificate.__ This section has two essentials -
1. Issuing or signing of a certificate --
(a) required by law to be given or signed, or
(b) relating to a fact of which such certificate is by law admissible in evidence
2. Such certificate must have been issued or signed knowing or believing that it is false in any material point.
198 Using as true a certificate known to be false.--
The prosecution must prove
(i) that the document in question purports to be a certificate;
(ii) that such certificate is required by law to be given or signed, or that it related to some fact of which such certificate is by law admissible in evidence;
(iii) that such certificate is false;
(iv) that it is false in a material point;
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(v) that such false certificate was signed or issued;
(vi) that the accused used or attempted to use such false certificate;
(vii) that he did so corruptly;
(viii) that he, when using such false certificate, knew it to be false in a material point.
409 Sec.409. Criminal breach of trust by public servant, or by banker, merchant or agent.
The following are the essential ingredients of the offence under this section:
(i) The accused must be a public servant;
(ii) He must have been entrusted, in such capacity, with property;
(iii) He must have committed breach of trust in respect of such property.
In order to sustain conviction under section 409 of the Code two ingredients are to be proved: namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty-0bound to account for; (ii) the accused has committed criminal breach of trust."
Essential requirements. To constitute an offence punishable under section 409 apart from entrustment, it is also essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker attorney or agent.?
- 63 - Spl.CC 143/2021 420 420. Cheating and dishonestly inducing delivery of property.
The essential ingredients to attract Sec.420 of IPC are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement.
The making of a false representation is one of the ingredients of for the offence of cheating under Sec.420 IPC.
13 Section 13 of The Prevention of Corruption Act, 1988
13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having
- 64 - Spl.CC 143/2021 any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
- 65 - Spl.CC 143/2021 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
45. Let me examine the oral as well as documentary evidence of the prosecution. PW-2 Shashidhar Mahadevappa Hallikeri is a defacto complainant. He deposed about filing of private complaint before the Sessions Court, Haveri. He further deposed that the accused No.1 has requested the Deputy Commissioner to release grant of Rs.50 lakhs vide letter dated 28.02.2010 marked as Ex P-7 under KLLADS scheme. He further deposed that the accused No.1 by misusing his authority and by making undue influence allotted four works amounting to Rs.5 lakhs each in favour of his son and accused No.1 has requested the Secretary, MADB for release of 30 lakhs vide letter dated 03.09.2008 marked as Ex.P.16 and the accused No.1 by misusing his authority and by making undue influence, got allotted 2 works amounting to Rs.5 lakhs and 3 lakhs in favour of his son accused No.2. He further deposed that accused No.1 by misusing his authority and by making undue influence got work amounting to Rs.5 lakhs in favour of accused No.3. He further deposed that the accused No.1 has requested the Secretary MADB for release of 17
- 66 - Spl.CC 143/2021 lakhs vide letter dated 20.07.2010 marked as Ex.P.20 for various developmental work and accused No.1 got works allotted to accused No.2 and 3 by undue influence played by him. He further deposed that the accused No.2 was class-III contractor during the year 2007 and class-II contractor during the year 2009 and class-I contractor during the year 2010. He further deposed that though the accused No.2 has not performed the work, he has got issued false work done certificate during the year 2009-10 that he has under taken CMSMTDP package No.5,6,15,18,20 and 29 and also got issued false work done certificates of metalling and asphalting the road which connects Nehru Nagar in Nagendranamatti and metalling and asphalting the Karadigudda Road amounting to Rs.1.5 Crores.
46. PW6 Srikanth Rudrappa Mysore, the then Executive Engineer, Zilla Panchayath Engineering Division deposed that at the request of Lokayukta Police, he has a furnished documents of work performance of accused No.2 during the year 2008-09, 2009-10 as per Ex P-50 letter. He further deposed that the accused No.2 has not performed any work during 2008-09 and he has performed work amounting to Rs.47.39 lakhs during 2009-10. He further deposed that he has furnished the documents submitted by accused No.2 for
- 67 - Spl.CC 143/2021 procuring works. He further deposed that the accused No.2 has not performed the work amounting to Rs.3,32,07,999/- to procure the work i.e. KPWC/2010-11/RD/Work indent/5744.
47. PW7 Mohammed Zuber, the then Tahsildar of Byadagi Taluk has deposed that at the request of Superintendent of Police, he furnished Ration Card, Voter ID of family members of accused No.1 as per Ex.P-60, 62 and 63.
48. PW8 K.Shivanna, the then Executive Engineer, PWD, Haveri has deposed that he has furnished details of work of Hiremagadduru Kadakol Road amounting to Rs.1,49,00,000/- as per letter Ex.P-65 and furnished details as per Ex.P.66 and Ex.P.67 at the request of Superintendent of Police.
49. PW9 L.A.Krishna Naik, the then Deputy Secretary, Malenadu Area Development Board has deposed that he has furnished turn over statement work of MADB performed by accused No.2 during the year 2008-09, 2009-10, member list of MADB from 2008 to 2011, letter written by accused No.1 to Secretary, MADB dated 08.09.2008 requesting for execution of 8 works and all details of work undertaken at Hucchangi lake and Hoovinashigli lake under
- 68 - Spl.CC 143/2021 MADB scheme as per Ex.P-69 to Ex.P-79 at the request of Superintendent of Police.
50. PW10 Junjappa Gowda Hanumantha Gowda Patil has deposed that he is running company by name Prakash Murushilina and Company and he has deposed about the preparation of profit and loss account and balance sheet for the year 2009-10.
51. PW11 Jagadish G, the then Deputy Commissioner, Haveri has deposed that he has furnished letter written by accused No.1 for grant of funds under KLLAD scheme as per Ex.P-79 and 80 as per the request of Superintendent of Police.
52. PW12 K.Srinivas, the then Police Inspector, Karnataka Lokayukta Haveri has deposed about the registration of FIR Ex.P-81.
53. PW13 N.Lingareddy, the then Police Inspector, Davanagere has deposed that he requested the commissioner to provide documents relating the work amounting to Rs.70 lakhs under SFC scheme package No.7 and regarding work amounting to Rs.80 lakhs under CMSMTDP marked as Ex.P.88. He further deposed that in response to the said letter, Municipal Commissioner sent documents along with Ex.P.89 reply. He further deposed that he has
- 69 - Spl.CC 143/2021 requested Executive Engineer, Haveri through letter Ex.P.64 to send documents relating to the work KPWC 2010-11/RD/work indent/5744 allotted to accused No.2 and the Executive Engineer, sent reply along with documents marked as Ex.P-66 and 67. He further deposed that he has requested the Municipal Commissioner to furnish details regarding the works of metalling and asphalting the road which connects to Nehrunagar in Nagendranamatti and metalling and asphalting the Karadigudda road amounting to 1.5 crores and concreting of drainage work during the year 2009-10 under CMSMTDP package, Ward No.5, 6, 15, 80, 20 and 29 amounting to Rs.2.15 crores through letter Ex.P.90. The Municipal Commissioner vide Ex.P-91 replied the letter by furnishing the details. He further deposed that he has requested the Secretary MADB to furnish details regarding works conducted by accused No.2, member list of MADB and other documents. The Secretary MADB vide Ex.P-69 has replied by providing documents. He further deposed that he has requested the Chief Engineer, Communication and Buildings (South), K.R.Circle, Bengaluru through letter Ex.P-93 to furnish the documents submitted by accused No.2 and 3 to get themselves registered as class-I contractors. He has replied the said letters by furnishing documents Ex.P-94.
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54. It is the duty of this court to analyse the documents to see whether the accused have committed the offences alleged against them.
55. It is pertinent to note that the Investigation Officer has written letter to Tahsildar, Byadagi at Ex.P-60 requesting to furnish details of Ration Card and Voter list of family of accused No.1. By letter dated Ex.P-61, Tahsildar, Byadagi has furnished details of Ration Card and Voter list as per Ex.P-62 and Ex.P-63. Ex.P-62 reveals that the accused No.1 to 3 were residing together. Ex.P-63 reveals that the accused No.2 Manjunath Olekar was aged 19 years in the year 2008, 20 years in the year 2009. Ex.P-4 to Ex.P-6 are the letters written by accused No.1 to Registrar, Karnataka Lokayukta, Bengaluru, furnishing to rectify the assets and liabilities statements for the year 2007, 2008 and 2009-10 respectively. In these documents, accused No.1 has declared his son Devaraj N Olekar was student and another son Manjunath N Olekar - Class-II contractor having income of Rs.10 Lakhs. This court while recording the statement under Sec.313 of Cr.P.C., asked the age of accused No.2 and 3 and they told their age as 32 and 31 respectively. In the year 2007, when accused No.2 applied for class-III contractor's licence,
- 71 - Spl.CC 143/2021 his age might be 17-18 years and accused No.3 might be 16-17 years. It means accused No.2 and 3 had no independent capacity to obtain licence. Accused No.1 might have obtained contractor's licence to accused No.2 and 3. Hence, it cannot be said that accused No.1 has no role in getting contract work in the name of accused No.2 and 3.
56. Another important aspect is that on 12.12.2007, accused No.2 got contractor's licence which was valid upto 31.03.2010. On 19.06.2009, after one and half years of getting class-III contractor's licence, he got class-II contractor's licence and it was valid upto 31.03.2010 and on 02.07.2010, he got class-I contractor's licence and it was valid upto 31.03.2015. Therefore, it is accused No.1 who aided accused No.2 in getting licence and he aided to get civil contract work. Ex.P-23 to Ex.P-25 are the contractor's pass book depicting the year in which accused No.2 has obtained licence. With these observation, now let me discuss other prosecution evidence.
57. Accused No.1 being M.L.A. has written letter dated 02.08.2010 marked as Ex.P-7 to the Deputy Commissioner, Haveri to release Rs.50 lakhs under Karnataka Legislators Local Area Development Fund to carry out 11 works. In response of the said letter, the Deputy Commissioner, Haveri passed an order dated
- 72 - Spl.CC 143/2021 17.03.2010, marked as Ex.P-8 releasing Rs.50 Lakhs. Ex.P-9 to Ex.P-12 are the copies of proposals, agreements and bills prepared by Executive Engineer, Panchayath Raj Engineering Division allotting 4 works of Rs.5 lakhs each to accused No.2. Ex.P-13 is the statement furnishing the details of the works executed by accused No.2. Ex.P- 14 is the true copy of certificate of tax deduction dated 31.05.2010. Ex.P-15 is the true copy of annexure-I appointing Lok-Sabha, Rajya Saba, Vidhana Parishath members as members of Malenadu Area Development Board, Shivamogga.
58. Accused No.1 has written letter to Secretary, Malenadu Area Development Board to release Rs.30 Lakhs to carryout work at Savanuru Taluk marked as Ex.P-16. Ex.P-17 is the order passed by the Chief Engineer, Panchayath Raj Engineering Department, Bengaluru dated 21.05.2009. Ex.P-18 and Ex.P-19 are the works carried out by accused No.2 in the funds released by Malenadu Area Development Board.
59. Accused No.1 has again requested the Secretary, Malenadu Area Development Board for release of 17 Lakhs vide letter dated 20.07.2007 at Ex.P-20 for various development works. Ex.P-21 and Ex.P-22 are the documents related to the works carried
- 73 - Spl.CC 143/2021 out by accused No.2 and 3 in the funds of Rs.17 Lakhs released by Malenadu Area Development Board.
60. The main allegation is that accused No.2 and 3 have submitted false work done certificates issued by accused No.4 to 9 to obtain work KPWC/2010-11/RD/work indent/5744 under the undue influence of accused No.1. So, it is just and proper to go through the other documents. Ex.P-26 is the tender notification issued by Executive Engineer, PW, Port and Inland Water Transport Department, Haveri. He has issued notification to carryout 10 works. Item No.10 is the work of formation of road from Hiremagadduru- Kadakola Road via Krishnapura- K.B. Thimmapura till boundary of Basavanakoppa taluk. The total cost of said work was Rs.149.07 lakhs.
61. Ex.P-27 is the guidelines of tender. Para 3 says about the qualification of the tenderer which reads here under;
3.1) All Tenders shall provide the requested information accurately and in sufficient detail in Section 3: Qualification information.
3.2) To qualify for award of this contract, each Tenderer in its name should have in the last five years i.e., 2005-2006 to 2009-2010)
- 74 - Spl.CC 143/2021 a. achieved in at least two financial years a minimum financial turnover (in all classes of civil engineering construction works only) of Rs.397.50 Lakhs. b. Satisfactorily completed (at least 80% of the contract value), as prime contractor, at least one similar work such as Road work of value not less than Rs.119.25 Lakhs.
c. executed in any one year, the following minimum quantities of work:
-Earth work excavation 7987.00 Cum
-Formation of Road 3517.00 Cum
Embankment
-WBM/WMM 1215.00 Cum
-BM 115.00 Cum
-SDBC 591.00 Cum
-PCC/RCC 540.00 Cum
-Steel Fabrication 74.00 Qtl
d. deleted
e. deleted.
3.3) Each Tender should further demonstrate:
a. Availability by owning/ Lease/Hire basis the following key and critical equipment for this work: For Lease/Hire basis-relevant documents (commitment agreements etc., shall be scanned and uploaded) (Minimum 50% of the required machinery should be owned by the Tenderer. Remaining 50% of the required machinery may be owned/procured on Lease basis/ Hire basis.)
- Hot Mix Plant 40 TPH- Minimum 1No
- 75 - Spl.CC 143/2021
- Mechanical Paver Finisher - Minimum 1No & J.C.B - Minimum 1No.
- V R R Minimum 1 No & Soil Compactor _ Minimum 1 No.
- Mechanical Sprayer - Minimum 1 No. & Air Compressor _ Minimum 1 No.
- Tipper _ Minimum 4 No.s.
b. Liquid assets and or availability of credit facilities of no less then Rs.49.69 Lakhs (Credit lines/letter of credit/ certificates from banks for meeting the fund requirement etc. 3.4) To qualify for a package of contracts made up of this and other contracts for which tenders are invited in this IFT, the Tenderer must demonstrate having experience and resources to meet the aggregate of the qualifying criteria for the individual contracts.
3.5) deleted 3.6) Tenderers who meet the above specified minimum qualifying criteria, will only be qualified, if their available tender capacity is more than the total tender value.
62. The allegation is that in order to comply all these conditions, accused No.2 has obtained 2 false work done certificates to show his capacity to get contract work amounting to Rs.149.07 lakhs. It is further alleged that though accused No.2 has not performed the work, he has got issued false work done certificates.
One of the false work done certificate is with regard to the
- 76 - Spl.CC 143/2021 construction of cement concrete drains work during the year 2009-10 under CMSMTDP package No.5, 6, 15, 18, 20, 29 dated 23.02.2011 amounting to Rs.2.15 Crores and said certificate is marked as Ex.P-
29. Another false work done certificate was obtained for carrying out work of metalling and asphalting the road connecting to Nehrunagar in Nagendranamatti and metalling and asphalting the Karadigudda Road amounting to Rs.1.5 crores marked as Ex.P-30.
63. PW6 Srikanth Rudrappa Mysore has furnished details of the work done by accused No.2 during 2008-09 and 2009-10 at the request of Investigation Officer. As per Ex.P-50, accused No.2 has not performed any work during 2008-09. During the year 2009-10, he has performed work amounting to Rs.47.39 Lakhs. He has also sent copies of documents furnished by accused No.2 for procuring works. PW6 has also deposed that accused No.2 has not performed work amounting to Rs.3,32,07,999/- as stated by accused No.2 in his contract account submitted by him to procure work KPWC/2010- 11/RD/work indent/5744. Another important document is Ex.P-89. Ex.P-89 clearly reveals that the accused No.2 has performed the work amounting to Rs.19 lakhs under SFC scheme, package No.7 and has not performed any work under CMSMTDP scheme. As per Ex.P-89,
- 77 - Spl.CC 143/2021 one S.C. Maradura has executed work package No.5 and 6 under CMSMTDP scheme for the year 2009-10 amounting to Rs.45.12 lakhs.
64. PW13 N.Lingareddy. Dy.S.P., requested the Commissioner, Municipality, Haveri to give details about the work of metalling and asphalting the road which connects to Nehrunagar in Nagendranamatti and metalling and asphalting the Karadigudda Road amounting to Rs.1.5 crores and concreting of drainage work under the CMSMTDP package ward No.5, 6, 15, 18, 20 and 29 amounting to Rs.2.15 crores as per Ex.P-90. Ex.P-91 is the reply given by Commissioner, Municipality, Haveri. He said that the ward No.5 was allotted to S.C.Maradura, Ward No.6 was allotted to S.C. Maradura, Ward No.15 was allotted to S.R. Doddamani, Ward No.18 was allotted to B.H. Pelanavar, Ward No.20 was allotted to B.H. Pelanavar and ward No.29 was allotted to Rajendra Sajjanavar and work of metalling and asphalting the road which connects to Nehru nagar in Nagendranamatti and metalling and asphalting the Karadigudda Road was allotted to contractor P.Y. chetgeri and work was not allotted to accused No.2 under CMSMTDP package ward No.5, 6, 15, 18, 20 and 29. As per Ex.P-68, Investigation Officer
- 78 - Spl.CC 143/2021 requested Secretary, MADB to furnish details of work done by accused No.2. Ex.P-69 is the reply given by Secretary MADB. He has sent other documents marked as Ex.P-72 to Ex.P-74. Ex.P-72 to Ex.P-74 clearly reveals that accused No.2 has performed work of MADB amounting to Rs.8 lakhs during the year 2008-09. Therefore, it is proved that accused No.2 has falsely stated in contract account that he has performed MADB works amounting to Rs.58,10,058/- during the year 2008-09 and produced to obtain the work KPWC/2010-11/RD/work indent/5744.
65. The Investigation Officer has written letter to the Chief Engineer, PW, Port and Inland Water Transport Department to furnish documents submitted by accused No.2 and 3. As per Ex.P-94, Chief Engineer has submitted reply. Accused No.3 has furnished work done certificate amounting to Rs.20 lakhs during the year 2009-10 under SFC scheme. The Investigation Officer has written letter to the Commissioner, Municipality, Haveri and requested to furnish the details of work and certified copy of the certificate. Ex.P-96 is the reply submitted by Commissioner of Municipality, Haveri. This document reveals that work stated to be performed by accused No.3
- 79 - Spl.CC 143/2021 was allotted and performed by Sri.M.H. Bhovi. It is supported by work order.
66. On perusal of evidence of PW2, PW8 and PW13 and comparison of Ex.P.67 with Ex.P.91, it is clear that the prosecution has proved the allegation that accused No.2 has got issued false work done certificate stating the performance of work amounting to Rs.1.50 crores and 2.15 crores by the influence of accused No.1 who was MLA at the time of issuance of certificates. On perusal of Ex.P94 documents show that the accused No.3 has furnished work done certificate of the work SFC package 2 vide order No.SaHaaSFC:vahi2/2009-10 dated 2.5.2009 amounting to Rs.20,00,000/-. Ex.P96 shows that SFC package work was allotted to Sri H.M.Bhovi amounting to Rs.19 lakhs. So accused No.3 has not carried out work under SFC package. As per false work done certificate, work was allotted vide order dated 28.7.2009 amounting to Rs.1.50 crore to carryout the work of metalling and asphalting the road which connects to Nehrunagar in Nagendranamatti and Karadigudda road marked as Ex.P.30, bears the signatures of accused No.4 to 9 and knowing it to be false, has certified the same as genuine vide Ex.P.67, when requested by PW8.
- 80 - Spl.CC 143/2021
67. False work done certificate which states that the accused No.2 has performed work of concreting of drains in ward No.5, 6, 15, 18, 20 and 29 under CMSMTDP Package marked as Ex.P.29 bears the signature of accused No.4 and certified by accused No.4 and 5 when sent back to City Municipal Council, Haveri for verification by PW8. Thus the accused No.4 to 9 knowing fully well that the accused No.2 and 3 have not performed work, issued false work done certificates to accused No.2 and 3 under the undue influence of accused No.1. Ex.P.66 and Ex.P.67 clearly reveal that the accused No.2 has got issued false work done certificates from accused No.4, 5, 7 to 9 with dishonest intention for the procurement of work tender KPWC/2010-11/RD/Work Indent/5744, though he was ineligible for the procurement of said work. Therefore, the accused No.1 to 5, 7 to 9 have committed the offences alleged against them.
68. So far as accused No.3 is concerned, Ex.P.94 reveals that he has got issued work done certificate from accused No.4, 5, 7 to 9 and produced the same to Executive Engineer, PWD, for got registered as Class-I Contractor and by virtue of false work done certificate, he got registered as Class-I Contractor.
- 81 - Spl.CC 143/2021
69. The learned counsel for the accused have much argued on Ex.D.1. Ex.D.1 is the letter given by Public Information Officer of Sri Eshwarappa Lamani by providing documents pertaining to the Contract Works. The contention of the accused is that the present complainant had taken those documents from Sri Eshwarappa Lamani and filed this false complaint. This argument cannot be considered, because, though the complainant has produced the documents, the I.O. during the course of investigation summoned documents from various departments and those documents are true copies. Therefore, it cannot be said that there is conspiracy behind initiating this case.
70. Merely because the I.O. has not conducted mahazar while securing the documents, the case of the prosecution cannot be brushed aside. He has obtained documents from Government Department and from proper custody. The accused has not disputed the contents of the documents except saying that the prosecution has not produced original documents. The documents itself speak about the involvement of the accused No.1 to 5, 7 to 9 in creating documents for the purpose of obtaining civil contracts to accused
- 82 - Spl.CC 143/2021 No.2 and 3. So the question of examining other contractors who did the contract work to prove the case of the prosecution does not arise.
71. The I.O. has collected all necessary documents by writing letter to the various departments and they have furnished true copies of the documents. Merely because, the prosecution has not produced original documents, the documents produced by the prosecution cannot be brushed aside. If really, the accused disputes the documents and its contents, they could have summoned the original or they could have produced the documents available with them to prove their defence. It is not the case of accused No.2 and 3 that they have actually carried out the work related to work done certificate. Therefore, the contention of the accused cannot be considered. With these observations, I answer points No.4 to 8 in the Affirmative.
72. Point No.9: Hon'ble Apex Court in N.Raghavender Vs. State of Andhra Pradesh, CBI reported in 2021 SCC OnLine 1232) has held as follows:
'While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the
- 83 - Spl.CC 143/2021 actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-a-vis the entrusted property was carried out in a legally and contractually acceptable manner'.
73. In the present case, the prosecution has proved the entrustment and accused No.4, 5, 7 to 9 held public office being proper authority to issue work done certificate, accused No.2 and 3 being contractors / agents of the Government to carryout the public work, have failed to prove that the obligation vis-a-vis the entrusted property was carried out in a legally and contractually acceptable manner. Therefore, the prosecution has satisfied the ingredients of Sec.409 of IPC.
74. It is further clear that false work done certificates are issued with the dishonest intention for procurement of work tender though the accused No.2 and 3 were ineligible for procurement of work and falsely obtained government works and hence, the ingredients of Sec.420 of IPC are proved.
- 84 - Spl.CC 143/2021
75. The accused No.1 has abused his position as public servant and dishonestly and fraudulently obtained pecuniary advantage to his children by creating false work done certificate and accused No.4, 5, 7 to 9 have abused their position as public servants and issued false work done certificates at the request of accused No.1 to 3 and hence, accused No.1, 4, 5 and 7 to 9 have committed the offence punishable under Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
76. The accused No.2 and 3 have committed offence punishable under Sec.198 of IPC as they used false work done certificate as true certificate to obtain contract work. The accused No.4, 5, 7 to 9 have committed the offence punishable under Sec.197 of IPC, as they have issued false work done certificate. Hence, the prosecution has proved that the accused No.1 to 5, 7 to 9 have committed the offences punishable under Sec.197, 198, 409 and 420 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988 and therefore, there are ample evidence on record to convict the accused No.1 for the offence punishable under Sec.13(1)
(d) R/w 13(2) of the Prevention of Corruption Act, 1988 and to convict the accused No.2 and 3 for the offence punishable under
- 85 - Spl.CC 143/2021 Sec.198, 409 and 420 of IPC and to convict the accused No.4, 5, 7 to 9 for the offences punishable under Sec.197, 409, 420 of IPC and Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988. Accordingly, I answer point No.9 in the Affirmative.
77. Point No.10: In view of my findings on points No.1 to 9, I proceed to pass the following order:
ORDER Accused No.1 to 5, 7 to 9 are found guilty for the offences punishable under Sec.197, 198, 409, 420 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988 and hence acting under Sec.235(2) of Cr.P.C., the accused No.1 is convicted for the offence punishable under Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988, the accused No.2 and 3 are convicted for the offences punishable under Sec. 198, 409, 420 of IPC and accused No.4, 5, 7 to 9 are convicted for the offences punishable under Sec. 197, 409, 420 of IPC and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
(Dictated to the Judgment Writer, transcribed by him, revised and corrected by me and then pronounced in the Open Court on this the 13th day of February, 2023).
(B.Jayantha Kumar) XC Addl. City Civil & Sessions Judge, Bengaluru City (CCH-91) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka)
- 86 - Spl.CC 143/2021 Heard the acused No.1 to 5, 7 to 9, the learned counsels for the accused No.1 to 5, 7 to 9 and learned Special Public Prosecutor.
2. Accused No.1 submits that he is aged 65 years and he has wife and three children and recently he has undergone operation of gall bladder and he has not committed any offence.
3. Accused No.2 submits that he is aged 32 years, he has wife and two children. Accused No.3 submits that he is aged 30 years and he has wife and two children.
4. Accused No.4 submits that he is aged 65 years, he has wife and three children. He submits that he has not committed any offence, he is suffering from heart problem, diabities and hypertension.
5. Accused No.5 submits that he is aged 65 years, he has wife and two children. He submits that he is suffering from heart disease and ill-health.
6. Accused No.7 submits that he is aged 43 years, he has wife and two children. He submits that he is suffering from hypertension. He further submits that he has not signed any document and he has not committed any offence.
- 87 - Spl.CC 143/2021
7. Accused No.8 submits that he is aged 62 years and he has two children, he has not committed any offence and he is suffering from paralysis.
8. Accused No.9 submits that he is aged 56 years and he has wife and two children. He further submits that he has not committed any offence and requests not to impose any punishment.
9. Learned counsel for the accused No.1 to 3 has submitted that all the accused are aged persons and suffering from ill-health and fine may be imposed.
10. Learned counsel for the accused No.4, 5, 7 to 9 adopts the submission made by the learned counsel for accused No.1 to 3.
11. Learned Special Public Prosecutor has submitted that punishment may be imposed to the accused persons as per law.
12. In this case, the prosecution has proved with cogent evidence that accused No.1 has committed the offences punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988, accused No.2 and 3 have committed the offences punishable under Sec.198, 409 and 420 of IPC, accused No.4, 5, 7 to 9 have committed the offences punishable under Sec.197, 409, 420 of
- 88 - Spl.CC 143/2021 IPC and Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
13. Having regard to the circumstances of the case including the nature of the offences committed by the accused, it would not be desirable to deal with them under Sec.3 and 4 of the Probation of Offenders Act.
14. As far as imposition of punishment is concerned, for the offence of Sec.197 and 198 of IPC, the accused shall be punished in the same manner as if gave false evidence. Sec.193 of IPC deals with punishment for false evidence. Punishment prescribed is imprisonment of either discription for a term which may extend to seven years and shall also be liable to fine.
15. The punishment prescribed for the offence of Sec.409 of IPC shall be with imprisonment for life or with imprisonment of either discription for a term which may extend to ten years and shall also be liable to fine.
16. The punishment prescribed for the offence of Sec.420 of IPC shall be with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- 89 - Spl.CC 143/2021
17. It is pertinent to note that as per Sec.58 of the Lokpal and Lokayukta Act, 2013, amendment to the Prevention of Corruption Act, 1988 was brought specified in 'Schedule'. Part-III deals with amendments to the Prevention of Corruption Act, 1988. Sec.13(2) was amended. Minimum and maximum punishment was enhanced. For the words 'one year', the words 'four years' was substiauted, for the words 'seven years', the words 'ten years' was substituted.
18. The incident took place in the year between 2009 and 2011. So, the enhanced punishment to Sec.13(2) of P.C.Act are not applicable. Sec.13(2) says that any public servant who commits criminal misconduct shall be punished with imprisonment for a term which shall not be less than one year, but which may extend to seven years and shall also be liable to fine.
19. Considering the facts and circumstances of the case, I feel it it just and proper to impose simple imprisonment for 2 years and fine of Rs.2,000/- to accused No.1 for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988 and in default to pay a fine, he shall undergo simple imprisonment for one month;
- 90 - Spl.CC 143/2021 And to impose simple imprisonment for 2 years and fine of Rs.2,000/- each to accused No.2 and 3 for the offence punishable under Sec.198 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each and to impose simple imprisonment for 2 years and fine of Rs.2,000/- each for the offence punishable under Sec.409 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each and to impose simple imprisonment of 2 years and fine of Rs.2,000/- each for the offence punishable under Sec.420 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each;
And to impose simple imprisonment for 2 years and fine of Rs.2,000/- each to accused No.4, 5, 7 to 9 for the offence punishable under Sec.197 of IPC and indefault to pay a fine, they shall undergo simple imprisonment for one month each and to impose simple imprisonment for 2 years and fine of Rs.2,000/- each for the offence punishable under Sec.409 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each and to impose simple imprisonment for 2 years and fine of Rs.2,000/- each for the offence punishable under Sec.420 of IPC and indefault to pay a fine, they shall undergo simple imprisonment for one month each
- 91 - Spl.CC 143/2021 and to impose simple imprisonment for 2 years and fine of Rs.2,000/- each for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the P.C.Act. With these observation, I proceed to pass the following:-
ORDER Accused No.1 is sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- (Rupees Two Thousand) for the offence punishable under Sec.13(1)
(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988 and in default to pay a fine, he shall undergo simple imprisonment for one month.
Accused No.2 and 3 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.198 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each.
Accused No.2 and 3 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.409 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each.
Accused No.2 and 3 are sentenced to suffer simple imprisonment of 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.420 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each.
- 92 - Spl.CC 143/2021 Accused No.4, 5, 7 to 9 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.197 of IPC and indefault to pay a fine, they shall undergo simple imprisonment for one month each. Accused No.4, 5, 7 to 9 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.409 of IPC and in default to pay a fine, they shall undergo simple imprisonment for one month each Accused No.4, 5, 7 to 9 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.420 of IPC and indefault to pay a fine, they shall undergo simple imprisonment for one month each. Accused No.4, 5, 7 to 9 are sentenced to suffer simple imprisonment for 2 years and fine of Rs.2,000/- each (Rupees Two Thousand) for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the P.C.Act and indefault to pay a fine, they shall undergo simple imprisonment for one month each.
Out of the total fine amount, Rs.10,000/- (Rupees Ten Thousand only) shall pay to complainant Sri Shashidhar Mahadevappa Hallikeri towards compensation under Sec.357(1) of Cr.P.C., as he filed private complaint and spent amount for collecting some documents.
- 93 - Spl.CC 143/2021 All substantive sentences of imprisonment shall run concurrently. Accused No.1 shall pay total fine of Rs.2,000/-, Accused No.2 and 3 shall pay total fine of Rs.6,000/- each, Accused No.4, 5, 7 to 9 shall pay total fine of Rs.8,000/- each.
Supply free copy of this judgment to the accused forthwith.
(Dictated to the Judgment Writer, transcribed by him, revised and corrected by me and then pronounced in the Open Court on this the 13th day of February, 2023).
(B.Jayantha Kumar) XC Addl. City Civil & Sessions Judge, Bengaluru City (CCH-91) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka) ANNEXURES:
1. Witnesses examined by the prosecution.
PW1 S.Renukaradhya
PW2 Shashidhara Mahadevappa Hallikeri
PW3 Mariyappa
PW4 Dr.N.Manjula
PW5 A.N.Tyagaraj
PW6 Srikanth Rudrappa Mysuru
PW7 Mohammed Juber
PW8 K.Shivanna
PW9 L.A.Krishna Naika
- 94 - Spl.CC 143/2021
PW10 Junjappa Gouda Hanumanthappa Gouda Patil
PW11 Jagadish
PW12 K.Srinivas
PW13 N.Lingareddy
2. Witnesses examined by the defence/accused. -- NIL
3. Documents exhibited by the prosecution.
Ex.P.1 Government order dated 30.7.2013 regarding sanction for prosecuting A4-H.K.Rudrappa Ex.P.1(a) Signature of PW1 Ex.P.2 Private complaint Ex.P.3 Affidavit filed along with the private complaint Ex.P.3(a) Signature of PW2 Ex.P.3(b) Signature of PW2 Ex.P.4 True copy of letter dated 11.7.2008 for having submitted corrected Assets and Liabilities statement of A1 Ex.P.5 True copy of letter dated 18.8.2009 written by A1 to the Registrar, Karnataka Lokayukta having submitted corrected Assets & Liabilities Statement Ex.P.6 True copy of letter dated 28.6.2010 written by A1 to the Registrar, Karnataka Lokayukta, Bengaluru submitting Assets and Liabilities in Form-IV Ex.P.7 Certified copy of the letter dated 28.02.2010 written by A1 in the capacity as Minister to the Deputy Commissioner, Haveri District
- 95 - Spl.CC 143/2021 Ex.P.8 Certified copy of the Order dated 17.3.2010 of the office of Deputy Commissioner, Haveri District Ex.P.9 Copy of the proposals for work on piecemeal basis (Thundu Guttige), agreement and bills Ex.P.10 -ditto-
Ex.P.11 -ditto-
Ex.P.12 -ditto-
Ex.P.13 Copy of the statement furnishing the details of the works executed by the Contractor Sri M.N.Olekar Ex.P.14 True copy of the certificate of tax deduction dated 31.5.2010 Ex.P.15 True copy of the Annexure-1 (Subject No.2) appointing Lokasabha, Rajasabha and Vidhana Parishath Members as the Members of Malenadu Area Development Board, Shivamogga Ex.P.16 True copy of the Letter dated 8.9.2008 written by A1 to the Secretary, Malenadu Area Development Board Ex.P.17 Order of Chief Engineer, Panchayathraj Engineering Department, Blr, dated 21.05.2009 Ex.P.18 True copy of the Agreement between Contractor and Panchayathraj Engineering Department Ex.P.19 True copy of the Agreement between Contractor and Panchayathraj Engineering Department Ex.P.20 True copy of the letter dated 20.7.2010 written by A1 to the Secretary, Malenadu Area Development Board
- 96 - Spl.CC 143/2021 Ex.P.21 True copy of the Agreement between Contractor and Panchayathraj Engineering Department Ex.P.22 True copy of the Procedings of Executive Engineer, Panchayathraj Engineering Division, Haveri Office dated 27.10.2010 Ex.P.23 True copy of the Contractor's Pass Book of Sri Manjunath N.Olekar Ex.P.24 True copy of the Contractor's Pass Book of Sri Manjunath N.Olekar Ex.P.25 True copy of the Contractor's Pass Book of Sri Manjunath N.Olekar Ex.P.26 True copy of the E-Tender Notification dated 19.02.2011 Ex.P.27 True copy of tender guidelines Ex.P.28 True copy of the members participated in the tender Ex.P.29 True copy of work done certificate dated 23.2.2011 issued by City Municipal Council Haveri Ex.P.30 True copy of the certificate of execution of the work Ex.P.31 True copy of the Contract account for the year ending on 31.3.2009 Ex.P.32 True copy of the contract account for the year ending on 31.3.2010 Ex.P.33 True copy of the statement issued by Malenadu Area Deveopment Board, Shimoga showing the details of annual turnover of the M.N.Olekar, contractor for the year 2008-09 Ex.P.34 True copy of certificate of Tax Deduction dated
- 97 - Spl.CC 143/2021 21.10.2010 Ex.P.35 True copy of Form No.16A for the year 1.4.2009 to 31.3.2010 pertaining to M.N.Olekar, Haveri Ex.P.36 True copy of the statement of the annual turnover of Sri M.N.Olekar issued by the Finance Controller, MADB, Shivamogga Ex.P.37 True copy of the letter dated 18.3.2011 from Executive Engineer to AEE, Nagarasabe, Haveri Ex.P.38 True copy of letter dated 28.3.2011 from the office of Executive Engineer, PWD, Haveri to Superintendent Engineer, PWD, Dharwad Ex.P.39 True copy of letter dated 25.5.2011 from the office of EE, PWD, Haveri to Sri Manjunath Olekar, Contractor Ex.P.40 True copy of letter dated 3.6.2011 from the office of EE, PWD, Haveri to Sri Manjunath Olekar, Contractor Ex.P.41 True copy of the Agreement Form dated 3.6.2011 between EE, PWD, Haveri and Sri Manjunath N.Olekar Ex.P.42 Letter dated 9.11.2012 written by Shashidhar M. Hallikeri to Superintendent of Police, Karnataka Lokayukta, Davanagere Ex.P.43 True copy of 09 page Documents annexed along with the letter written to Lokayukta Police Ex.P.44 Revised Government Order dated 20.08.2013 according sanction for prosecuting Sri H.K.Kallappa(A5), Sri P.S.Chandramohan (A8) Ex.P.45 Government Order dated 09.07.2013 according sanction for prosecuting Sri H.K.Kallappa(A5), Sri P.S.Chandramohan (A8)
- 98 - Spl.CC 143/2021 Ex.P.46 Government order dated 17.6.2013 according sanction for prosecuting accused Sri K.Manjunatha, J.E., Sri S.P.Kamadod,SDC, Nagarasabhe, Haveri Ex.P.47 Revised Government order dated 29.07.2013 according sanction for prosecuting accused Sri K.Manjunatha, J.E., Sri S.P.Kamadod,SDC, Nagarasabhe, Haveri Ex.P.48 Letter of Chief Enginer, C & B, South Zone, Bengaluru dated 01.06.2013 Ex.P.48(a) Signature of Chief Engineer, C & B, South Zone, Bengaluru on the letter dated 01.06.2013 Ex.P.49 Proceedings of Chief Engineer, C & B, South Zone, Bengaluru dated 01.06.2013 according sanction for prosecuting accused Sri K.Krishna Naik, AE, Nagarasabhe, Haveri Ex.P.50 Letter of Executive Engineer, Panchayathraj Engineering Division, Haveri dated 19.11.2012 to the Superintendent of Police, Karnataka Lokayukta, Davanagere Ex.P.51 Statement showing the works undertaken by the accused Sri Manjunatha N.Olekar Ex.P.52 True copy of contractor registration certificate Ex.P.53 True copy of contractor registration certificate Ex.P.54 True copy of composition tax registration certificate Ex.P.55 True copy of the statement of the works undertaken by the M.N.Olekar Ex.P.56 Letter dated 19.11.2012 from the office of Executive Engineer, Panchayathraj Engineering Division, Haveri to Superintendent of Police,
- 99 - Spl.CC 143/2021 Davanagere furnishing documents.
Ex.P.57 True copy of certificate of execution of work issued by Commissioner, Nagarasabe, Haveri Ex.P.58 True copy of certificate of execution of work issued by Commissioner, Nagarasabe, Haveri Ex.P.59 True copy of running account bills and Agreements Ex.P.60 Letter dated 6.11.2012 from Superintent of Police, Davanagere to Tahasildar, Byadagi seeking documents.
Ex.P.61 Letter dated 6.11.2012 from the office of Tahasildar, Byadagi to Superintendent of Police, Davanagere Ex.P.62 True copy of the Ration Card of the family of A1 Ex.P.63 True copy of the voter list-2008 Ex.P.64 Letter of SP, Karnataka Lokayukta, Davanagere, to EE, PWD, Haveri Ex.P.65 Letter dated 16.11.2012 from EE, Haveri to SP, Karnataka Lokayukta, Davanagere Ex.P.66 True copy of the Letter dated 18.3.2011 from EE, PWD, Haveri to AEE, Nagarasabhe, haveri Ex.P.67 True copy of the statement of work executed by M.N.Olekar Ex.P.68 Letter dated 6.11.2012 from SP, Karnataka Lokayukta, Davanagere to Secretary, MADB, Shivamogga seeking documents.
Ex.P.69 Letter dated 19.11.2012 from the Secretary, MADB, Shivamogga, to SP, Karnataka Lokayukta, Davanagere
- 100 - Spl.CC 143/2021 Ex.P.70 True copy of the account of the work executed by Sri M.N.Olekar, Contractor during 2008-09 and 2009-10, issued by MADB, Shivamogga Ex.P.71 Statement of the nomination of Member of Parliament to be member of MADB, Shivamogga for the year 2008-09, 2009-10, 2010-11 Ex.P.72 True copy of the letter dated 8.9.2008 written by A1 to the Secretary, MADB, Shivamogga.
Ex.P.73 True copy of the letter of Chief Engineer, Panchayathraj Engineering Division, Bengaluru to EE, Panchayathraj Engineering Division, Haveri approving piecemeal contract proposal (Tundu Guttige anumodane) Ex.P.74 True copy of Running account bill Ex.P.75 True copy of letter dated 14.6.2010 written by A1 to the Secretary, MADB, Shivamogga Ex.P.76 True copy of running account bill Ex.P.77 True copy of letter dated 06.11.2012 of SP, Karnataka Lokayukta, Davanagere to Deputy Commissioner, Haveri requesting furnishing documents Ex.P.78 True copy of letter dated 10.12.2012 of SP, Karnataka Lokayukta, Davanagere to Deputy Commissioner, Haveri requesting furnishing documents Ex.P.79 True copy of letter dated 13.12.2012 of Deputy Commissioner, Haveri to the SP, Karnataka Lokayukta, Davanagere Ex.P.80 True copy of letter dated 28.2.2010 of A1 to the DC, Haveri District requesting release of money for various works
- 101 - Spl.CC 143/2021 Ex.P.81 FIR in Cr.No.10/2012 Ex.P.82 Official Memorandum dated 22.10.2022 from the office of SP, Karnataka Lokayukta, Davanagere to Sri M.B.Patil, Superintendent of Police, Karnataka Lokayukta, Haveri Ex.P.83 Letter dated 18.10.2012 from the office of District Court, Haveri to the SP, Karnataka Lokayukta, Haveri (Davanagere) submitting the private complaint with a direction to investigate the matter under Sec.156(3) of Cr.P.C., and to submit report before the Court.
Ex.P.84 Letter dated 13.12.2012 from the office of SP, Karnataka Lokayukta, Police Division, Davanagere to the office of Income Tax officer, Haveri, seeking documents of I.T.returns of accused M.N.Olekar Ex.P.85 Letter dated 19.12.2012 from the office of Income-Tax Officer, Ward-1, Haveri to the SP, Karnataka Lokayukta, Davanagere furnishing information about income tax returns in respect of M.N.Olekar Ex.P.86 Copy of I.T.Return of M.N.Olekar for the year 2009-10 Ex.P.87 Memorandum dated 29.8.2013 from the office of Karnataka Lokayukta, Bengaluru to Superintendent of Police, Karnataka Lokayukta, Davanagere forwarding the originals of prosecution sanction orders Ex.P.88 Letter dated 11.01.2013 from the office of SP, Karnataka Lokayukta, Davangere to the Commissioner, Nagarasabe, Haveri seeking documents Ex.P.89 Letter dated 31.01.2013 from the office of the Commissioner, Nagarasabe, Haveri to the SP,
- 102 - Spl.CC 143/2021 Karnataka Lokayukta, Davanagere furnising documents as sought for.
Ex.P.90 Letter dated 14.12.2012 from the office of SP, Karnataka Lokayukta, Davangere to the Commissioner, Nagarasabe, Haveri seeking documents Ex.P.91 Letter dated 21.12.2012 from the office of the Commissioner, Nagarasabe, Haveri to the SP, Karnataka Lokayukta, Davanagere furnising documents as sought for.
Ex.P.92 Letter dated 17.12.2012 from the office of SP, Karnataka Lokayukta, Davangere to the Chief Engineer, C & B (South), K.R.Circle, Bengaluru seeking documents Ex.P.93 Letter dated 16.01.2013 from the office of SP, Karnataka Lokayukta, Davangere to the Chief Engineer, C & B (South), K.R.Circle, Bengaluru seeking documents.
Ex.P.94 Letter dated 22.1.2013 from the office of the Chief Engineer, C & B (South), K.R.Circle, Bengaluru to SP, Karnataka Lokayukta, Davangere to furnishing documents in respect of Sri M.N.Olekar and Sri D.N.Olekar Ex.P.95 Letter dated 19.01.2013 from the office of SP, Karnataka Lokayukta, Davangere to the Commissioner, Nagarasabe, Haveri seeking information.
Ex.P.96 Letter dated 21.01.2013 from the office of Commissioner, Nagarasabe, Haveri to the SP, Karnataka Lokayukta, Davangere furnishing information as sought for.
Ex.P.97 Letter dated 14.12.2012 from the office of SP, Karnataka Lokayukta, Davangere to Sri Prakash Muurushilana and Co., Advocate,Audit & Tax
- 103 - Spl.CC 143/2021 Consultant, Hosamani Complex, Hamsabhavi Road, near APMC, Byadagi, Haveri District requesting him to appear before the SP, KTJ Compound, Davanagere on 18.12.2012 at 10.45 A.M. to give his statement.
Ex.P.98 Letter dated 28.12.2012 from the office of Registrar, Karnataka Lokayukta, Bengaluru to Sri N.Lingareddy, Superintendent of Police, Karnataka Lokayukta, Davanagere furnishing the Assets and Liabilities statement of Sri N.C.Olekar, MLA, for the years 2007, 2008, 2009-10.
Ex.P.99 True copy of letter dated 11.07.2008 from accused No.1 to the Registrar, Karnataka Lokayukta, Bengaluru furnishing his revised Assets and liabilities statement for the year 2007
4. Documents exhibited by the defence/accused. - NIL
5. List of Material Objects marked by the prosecution:- NIL (B. JAYANTHA KUMAR) XC Addl. City Civil & Sessions Judge, Bengaluru City (CCH-91) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka) B JAYANTHA Digitally signed by B JAYANTHA KUMAR KUMAR Date: 2023.02.13 14:33:35 +0530