Karnataka High Court
Dr B S Manjunatha Swamy, Kas vs State By on 26 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.4822 OF 2014
BETWEEN:
1. Dr. B.S. Manjunatha Swamy, KAS
S/o B.N. Sadahsiva,
Aged about 40 years,
Assistant Commissioner(Advertisement),
Bruhat Bangalore Mahanagara Palike,
Bangalore.
2. Smt. Lakshmi W/o Seenappa C.,
Aged about 30 years,
Manager, A.C. Advertisement,
Bruhat Bangalore Mahanagara Paalike,
N.R. Square, Bangalore.
3. Sri. Kumar S/o N. Muniswamy,
Aged about 39 years,
FDA, Advertisement,
Bruhat Bangalore Mahanagara Paalike,
N.R. Square, Bangalore.
4. Sri. Madaiah S/o Narasimhaiah,
Aged about 69 years,
Legal Advisor,
Bruhat Bangalore Mahanagara Palike,
N.R. Square, Bangalore. ...Petitioners
(By Sri. Ashok Haranahalli, Senior Advocate for
Sri. Sandeep Patil, Advocate)
2
AND:
1. State By Bangalore Metropolitan
Task Force Police Station,
Through its Public Prosecutor,
Bangalore-560 001.
2. Sri. N.R. Ramesh,
Aged about 45 years,
S/o Late Narayana Raju,
Corporator, Ward No.167,
R/o No.2910, 14th A Cross,
BSK 2nd Stage,
Bangalore-560 070. ... Respondents
(By Sri. Vijayakumar Majage, Addl. SPP for R-1,
R-2 served and unrepresented)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the FIR in Crime No.34/2014
registered by respondent No.1 Bengaluru Metropolitan Task
Force pending on the file of the C.M.M., Bangalore,
complaint and consequently quash the entire and all further
proceedings pursuant thereto.
This Criminal Petition is coming on for Hearing, this
day, the Court made the following:
ORDER
Respondent No.2 is served and remained unrepresented.
2. Petitioners were public servants serving in different capacities in Bruhat Bengaluru Mahanagara 3 Palike (BBMP). Respondent No.2 lodged a complaint on 06.12.2007 against the petitioners alleging that BBMP had called for a tender cum auction notification inviting advertising agencies for electronic display system (LED) on lease and rental basis in seven electronic display locations by notification dated 06.12.2007. M/s. Adlabs Films Ltd. (later named as M/s. Reliance Broadcast Network Ltd.) was the successful bidder in the tender process. Pursuant thereto on 04.01.2008, M/s. Reliance Broadcast Network Ltd. Paid a sum of Rs.25,02,00,000/- towards licence fee.
3. In the complaint, it was alleged that on 27.06.2008, 16.10.2008 and 13.11.2008, BBMP issued a letter calling upon the successful bidder to execute the agreement as required under the tender notification. But M/s. Reliance Broadcast Network Ltd. insisted BBMP to change the location other than the one mentioned in the tender location for putting up LED 4 advertising. Since the aforesaid M/s. Reliance Broadcast Network Ltd. did not come forward to execute the agreement, BBMP forfeited the EMD amount and license fee amounting to Rs.28,31,24,720/- on 18.02.2010. Further averments made in the complaint disclose that M/s. Reliance Broadcast Network Ltd. Preferred an appeal before the Principal Secretary to Government, Urban Development Department, Bengaluru under Section 102 of the Karnataka Municipal Corporations Act, 1976 (hereinafter for brevity referred to as "KMC Act") and vide order dated 07.08.2012, BBMP was directed to refund the forfeited amount to the M/s. Reliance Broadcast Network Ltd. The allegations made in the complaint are that the petitioners herein failed to disclose the pendency of W.P.No.26738/2013 filed by M/s. Reliance Broadcast Network Ltd. questioning the forfeiture of EMD and lease amount and also failed to disclose the resolution 5 passed by the BBMP with regard to forfeiture of the aforesaid amount.
4. Learned Senior counsel appearing for the petitioner would submit that the action of BBMP in forfeiting the EMD amount was challenged in terms of Section 102 of KMC Act. In the said proceedings, the Secretary to Government, Urban Development Department, has taken into consideration the opinion given by the Advocate General and the Law Department to the effect that "(1) ...... The question of forfeiture under clause 15 does not arise as an agreement between the parties has not been executed. (2) ...... As a provisional licence is not issued, it cannot be said that the tenderer has breached clause 14 of Appendix-B. (3) ...... As the terms of the two documents are clear, there is no scope for construing the letter of acceptance as a Provisional License. 6 (4) ...... I am in agreement with the opinion of the Law Department that neither Clause 14 nor Clause 15 of Appendix-A is applicable and that the forfeiture of the security deposit and the bid amount are not in accordance with the clauses, either in Appendix-A or in Appendix-B. (5) ...... It is advisable that the Government advises BBMP to show cause why the power under Section 102 be not exercised to direct refund of the forefeited sums to the tenderer. On considering the cause shown, an order may be made, giving reasons, directing refund of the forfeited sums. However, if the records disclose that the statutory requirement of giving a reasonable opportunity of being heard is already complied with, an order may be made under Section 102, which order should be supported by reasons."
5. It is the submission of learned Senior counsel that the agreement itself having not been executed by the M/s. Reliance Broadcast Network Ltd., 7 BBMP was not entitled to retain the amount. Under the said circumstances, the order passed by the Government under Section 102 of KMC Act cannot be set at naught on the allegations made by the complainant that the pendency of the Writ Petition No.26738/2013 was not disclosed in the said proceedings. Having availed legal remedy provided under KMC Act, it was not necessary for M/s. Reliance Broadcast Network Ltd. or to BBMP to disclose these facts in the proceedings under Section 102 of KMC Act. In the said circumstances, suppression of said fact even if considered as true, does not amount to cheating within the meaning of Section 420 of Indian Penal Code. The order passed by the Government under Section 102 of KMC Act has remained unchallenged. In the said circumstance, the complaint lodged by the petitioners being baseless and having been filed solely out of spite without making out any prima facie case for prosecution of the petitioners, the registration of FIR based on the 8 said allegations is fully illegal and abuse of process of Court.
6. Learned Additional State Public Prosecutor appearing for respondent No.1 does not dispute the factual submissions that the action of the BBMP was challenged by the M/s. Reliance Broadcast Network Ltd. by preferring a Revision Petition under Section 102 of KMC Act, but submits that the allegations made in the complaint are required to be investigated by the Police.
7. Having considered the submissions in the backdrop of the facts narrated above, in my view, the registration of the case against the petitioners is legally untenable and cannot be sustained. The circumstances discussed above clearly indicate that the amount paid by M/s. Reliance Broadcast Network Ltd. by way of EMD and licence fee was forfeited mainly for the reason that the successful bidder did not come forward to execute the agreement in terms of tender notification. 9 The said reasons have been negatived by the Government as reflected in the order passed by the Government under Section 102 of KMC Act. Though the action of the BBMP is found fault by the Government, no criminal intention could be imputed to the petitioners in respect of the action taken by the BBMP. No doubt, the records indicate that the M/s. Reliance Broadcast Network Ltd. had preferred a writ petition against the action of the BBMP, but the petitioners were not obliged to bring this fact to the notice of Government. It is not the case of the complainant that in view of the pendency of the writ petition, the Government could not pass any orders under Section 102 of the KMC Act or that by suppression of the pendency of the writ petition, the petitioners have derived any advantage in respect of the tender process. In the absence of any such allegations, there was no basis for the prosecution of the petitioners. In that view of the matter, the allegations made in the 10 FIR do not constitute the ingredients of the offence of cheating or deception by the petitioners entailing their prosecution under Section 420 of Indian Penal Code. The uncontroverted allegations made in the complaint do not make out the ingredients of Section 420 of IPC. As a result, the registration of FIR and the consequent prosecution of the petitioner being illegal and an abuse of process of Court, are liable to be quashed.
Accordingly, the petition is allowed. The proceedings initiated against the petitioners in Crime No.34/2014, pending on the file of the Chief Metropolitan Magistrate, Bangalore is quashed.
Sd/-
JUDGE BMC