Karnataka High Court
M Shivaprasad vs State Of Karnataka on 5 July, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL REVISION PETITION NO.682/2016
BETWEEN
M Shivaprasad
S/o Late M. Mallaiah
Meghana Nilaya
Siddaramaiah Road
Hinkal Village
Mysuru.
...PETITIONER
(By Sri M.N. Umashankar, Adv.)
AND
State of Karnataka
By Lokayuktha Police Mysuru
Mysuru-587201.
...RESPONDENT
(By Sri B.S. Prasad, Spl.PP)
***
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of Criminal
Procedure Code, 1973 praying to set aside the order
dated 15.03.2016 dismissing the application filed under
section 239 of Cr.P.C., passed by the III Addl. Sessions
and Spl. Judge, Mysuru in Cr.No.14/2008 for the
offences P/U/Ss 13(1)(e) and 13(2) of Prevention of
Corruption Act and to allow the application filed u/S
239 of Cr.P.C. in Spl.C.C. No.33/2012 pending on the
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file of III Addl. Sessions and Spl. Judge, Mysuru and
etc.,
This Petition coming for Admission, this day, the
Court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Spl.PP for the Lokayukta.
2. With the consent of learned counsel for both the parties, at the stage of admission, this matter is taken up for final disposal.
3. This criminal revision petition has been filed by the accused under Section 397 read with Section 401 of Cr.P.C., against the order dated 15.03.2016 dismissing the application filed by the petitioner/accused under Section 239 of Cr.P.C., in Spl.Case. No.33/2012, by the III Addl. Sessions and Special Judge, Mysuru.
4. The charge sheet filed against the accused by the Investigating Officer for the offence punishable under Section 13(1)(e) read with Section 13(2) of the -3- Prevention of Corruption Act, 1988 (for short 'the Act'), reveals that, the accused is a Government servant, joined as a Motor Vehicles Inspector in the Department of Transportation on 03.12.1991 and served in Bengaluru South, Koppala, Bidar, Vijapura, Bengaluru North, Hospet and Vijayapura Districts. During the period from 15.11.1996 to 09.03.2007 he has acquired illegal properties in Thumbala, Madhavagere and Hinkal Villages of Mysuru Taluk and in Maliyur Village of T. Narasipura in the names of his mother Smt. Puttagowaramma and wife Smt. Veena Prasad. One Sri Mallaiah, father of the accused was working as a Driver in KSRTC, he had total income of Rs.23,02,869/- from his salary, pensionary benefits and from sale of lands during the period of his service. The said Mallaiah had spent a total sum of Rs.14,52,885/- to purchase the land, vehicle and to construct a house. The mother of the petitioner is residing at Hinkal Village and she had a very little agricultural income. She was not able to purchase the lands by spending a huge amount of Rs.11,12,500/- during the period from 1998 to 2004 -4- out of her little agricultural income and to gift the lands valued Rs.11,00,000/- to the wife of the petitioner. The wife of the petitioner is a housewife and there is no income of her own. In spite of it she has purchased the lands valued at Rs.5,90,500/- during the period from 2000 to 2004. The accused also purchased a site in Hinkal Village and gifted the said land to his wife. The accused owned properties valued at Rs.1,32,89,346/- in the name of his wife. The accused has spent a total sum of Rs. 89,94,637/- during the check period till 21.10.2008 to develop the properties of his wife, to purchase gold ornaments and for the educational expenses of his daughter. The accused has earned a sum of Rs.1,10,41,699/- out of the properties standing in the name of his mother and transferred to the name of his wife and out of his income of Rs.10,62,464/- from his salary. The accused has acquired excess properties illegally to the extent of Rs.1,12,42,284/- which is disproportionate to his known source of income. -5-
5. Learned counsel for the petitioner has vehemently contended that the impugned order has been questioned in this revision petition under various aspects. The Court below has not considered the documents, which were produced by the accused during the course of investigation by the Investigation Officer. In the impugned order at Para No.11 it is stated that after the detailed investigation, by conducting a detailed enquiry and considering the materials submitted by the accused, the Investigating Officer has found that the acquisition of the properties by the accused and the expenditure made by him during the check period is to the extent of Rs.2,22,83,983/- and found the known source of the income of the accused to the extent of Rs.1,10,41,699/- and excess acquisition of the properties to the extent of Rs.1,12,42,284/-, i.e. to the extent of 101.81%, is without appreciation of the material evidence placed by the accused during the course of the investigation. He further contended that the Lokayukta Police have wrongly included the properties and assets of wife, mother, father and sister- -6- in-law of the petitioner, since all them have filed separate Income-Tax Returns and the same was accepted by the Income-Tax Authorities. Each and every document has not been looked into by the trial Court while passing order on I.A. filed by the accused under Section 239 of Cr.P.C. seeking for discharge of him from the alleged offences. Therefore, it requires intervention in the impugned order passed by the Court below relating to the offences punishable under Sections 13(1)(e) read with Section 13(2) of the Act. The Court below has said that there are grounds and materials placed by the prosecution for presuming that the accused has committed the alleged offences, but no material has been specifically stated in the impugned order relating to the application filed under Section 239 of Cr.P.C. by the accused seeking discharge of him from the alleged offences. In support of his contention, he has placed reliance on the decision reported in AIR 2000 SUPREME COURT 2583 in the case of State of M.P. v. Mohan Lal Soni, relating to Section 228, wherein, it is held that before framing of charge, the -7- documents made available by accused during investigation should also be considered, failure of trial Court to consider said documents in spite of directions of High Court, order framing charge against accused is liable to be set aside. In the present case the application is filed under Section 239 Cr.P.C., by the accused for seeking discharge of him from the alleged offences, which came to be dismissed without consideration of the documents placed and filed charge sheet against accused. Therefore, the learned counsel submits that the ratio laid down in said decision is clearly applicable to the case on hand.
6. Learned counsel for the petitioner further relied on the decision reported in 1995 CRI.L.J. 1110 - Janaki Ballav Patnaik v. State of Orissa, relating to the provisions of Sections 227 and 228 of Cr.P.C., wherein it is held that for framing of charge in the case of disproportionate assets in hands of accused, wife of accused, Member of Parliament - Daily allowance and other allowances received by her under provisions of -8- Member of Parliament (Constituency Allowance) Rules, 1986, is not part of income for purpose of Income-Tax - Total non-consideration of vital source of income known to prosecution and order framing of charge was quashed. The family members of the accused suppose to have properties, in spite of that the properties were indicated in the charge sheet filed by the Investigating Officer that the documents relating to the properties of the wife of the accused as well as stands in the name of his mother, the same has not been considered by the Court below. Therefore, it requires consideration keeping in view of the tenor of Section 239 of Cr.P.C., seeking discharge of the accused from the alleged offences.
7. Learned counsel for the accused also relied on the decision reported in 2003 CRI. L.J. 2956 - M. Sreeramulu v. State of A.P., which relates to the material placed by the petitioner in support of the grounds urged in the petition for quashing the order passed by the Court below. This ratio is laid down in -9- the judgment passed in Criminal Appeal No.881/1996 on 05.03.2003, wherein, it is held that the Conviction under - case relating to alleged disproportionate assets
- Prosecution has to establish that the various items which it attributes to the public servant are held by him directly or even indirectly - Items included in list of assets - Ownership in respect of these items accepted by prosecution on the basis of certain assumptions - Even the Investigating Officer was not sure about the ownership of the appellant vis-à-vis the said items - Appellant did not hold any assets disproportionate to his known sources of income - Conviction liable to be set aside. It indicates in the said case judgment is reversal of the conviction order against the accused for the offences punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947. Therefore, learned counsel submits that this ratio is squarely applicable to the grounds urged in the instant revision petition, relating to the order passed by the Court below for having rejecting the application filed under Section 239 of Cr.P.C., wherein accused is not -10- required to facing of trial for the offences punishable under Sections 13 (1)(e) read with Section 13(2) of the Act, relating to disproportionate to his known source of income, being a Government Servant, as charge- sheeted.
8. Learned counsel for the accused vehemently contended that the Court below has failed to consider the documents produced by the accused during the course of investigation done by the Investigation Officer, to the serious offences of Section 13(1)(e) read with Section 13(2) of the Act, wherein certain properties stand in the name of the wife of the accused and certain properties stand in the name of the mother of the accused, but these aspects have not been properly appreciated as well as considered by the trial Court. Only looking into the charge sheet filed by the Investigating Officer, after hearing arguments, the trial Court proceeded with the case stating that the accused is required to face trial. Hence, the learned counsel for the petitioner submits that in this criminal revision petition, the petitioner seeks intervention by this Court -11- and prays to set aside the impugned order passed in Spl.C. No.33/2012 wherein the application filed by the accused under Section 239 of Cr.P.C. was dismissed.
9. On controvert to the arguments advanced by the learned counsel for the accused-petitioner, Sri B.S.Prasad, learned Spl.P.P. for the respondent- Lokayukta submitted that relating to the offences charged against the accused under Section 13(1)(e) read with Section 13(2) of the Act, the accused is required to face trial before the Court below as there is prima-facie material against him. He further contended that the accused being a Government Servant acquired the assets disproportionate to his known source of income to the extent of 101.81% and it reflects from the material documents collected by the Investigation Officer during the course of investigation. The trial Court after consideration of material documents available on record has dismissed the application filed by the accused under Section 239 of Cr.P.C., seeking his discharge from the alleged offences. The trial Court, at Para No.14 clearly mentioned that after scrutinizing -12- the entire material documents has found that the accused purchased the properties in benami names i.e. in the names of his mother and the wife and dealt in benami transactions. Therefore, it is for the prosecution to prove the fact that, the accused has acquired the properties in the name of his mother and wife in benami transactions with his illegal earnings, by adducing satisfactory evidence before the trial Court for the alleged offences. Therefore, learned Spl.PP submits that the impugned order does not call for any interference by this Court and prays for rejection of the revision petition.
10. Keeping in view the contentions taken by the learned counsel for the petitioner and the learned Spl.PP for the Lokayukta it is relevant to state that the investigating records would reveal that in part-2 of the charge sheet laid against the accused, it consists that plot no.97/3 situated near Shankar Mutt, Basaveswaranagar, Bangalore is worth of Rs.40,00,000/-. A new house bearing No.3160 measuring 80 x 60 feet situated at Vijayanagar II Stage, -13- Mysore at Item No.5 in the aforesaid part - 2 of the charge sheet laid against the accused stands in the name of Veena Shivaprasad is worth of Rs.50,00,000/-. Site bearing No.3032 measuring 60 x 60 feet situated at Vijayanagar II Stage, Mysore at item no.6 of the aforesaid part - 2 of the charge sheet stands in the name of Veena Shivaprasad being his wife is worth of Rs.5,00,000/-. In Mysore Taluk, Madhavagere Village in all item no.1 to 10 of the landed property has been indicated in detail in the records as submitted by the investigating authorities. Similarly, in T.Narasipura Taluk in the limits of Bannur the landed property in all item no.1 to 11 has been indicated in the investigation records. Similarly in T.Narasipura Taluk, Kupya Village in all three landed properties has been indicated in the investigation records. During the course of the raid, the investigation officer has seized the cash, gold and several documents which was found in the wardrobe in the room of the accused. The xerox copies of the gift deed dated 28.10.2004 is executed by Puttagowramma, the mother of the accused in favour of Veena -14- Shivaprasad said to be the wife of accused pertaining to a land. Thereafter, the investigating officer prepared the final report after considering the various aspects including the documents produced by the accused at the time of verification of the same relating to the offences levelled against him. The investigating officer submitted the final report alleging that the accused had acquired the properties worth Rs.1,12,42,284/- i.e., to the extent of 101.81% against the known sources of his income being a Government servant.
11. It is relevant to cite a decision reported in (2014)3 SCC (Cri) 529 - State of Tamil Nadu vs. N.Suresh Rajan. In this citation it reveals possessing the properties disproportionate to the known sources of income in the name of family members. No mini trial is contemplated at the stage of considering discharge application and only probative value of materials has to be gone into to see if there is a prima facie case for proceeding against accused. In the instant case also, the properties are standing in the name of Smt.Puttagowramma being the mother of the accused -15- and Smt.Veena shivaprasad being the wife of the accused. The allegations made against the he had acquired properties in the name of family members i.e., mother as well as wife which is disproportionate to the known sources of income. At this stage it cannot be said that there are no prima facie materials against the accused to be proceeded with framing of charges. The accused is required to face trial. The charge sheet filed against the accused for the offences punishable under Sections 13(1)(e) read with 13(2) of the Act clearly indicates that the accused has acquired assets disproportionate to his known sources of income. The charge sheet was laid by the IO against the accused only after securing the material evidence. Therefore, the Trial Court has rightly come to the conclusion that the prosecution has placed prima-facie materials to proceed with the case as against accused for the alleged offences. There are no reasons to disbelieve the allegations made against the accused in the final report submitted by the investigating officer. It is for the prosecution to prove the case by adducing cogent -16- evidence during the course of the trial and so also it is for the accused to disprove the case of the prosecution by adducing the defence evidence. The Trial Court has rightly held that there are grounds to presume that the accused has committed offences alleged against him and that the accused has amassed assets disproportionate to his known sources of income. The accused is not deserving for seeking discharge from the alleged offences. The Trial Court has rightly dismissed the application filed by the accused under Section 239 of Cr.P.C. by assigning justifiable reasons.
Accordingly, for the aforesaid reasons it is said that there is no merits in this criminal revision petition to call for intervention of the order passed by the Court below in dismissing the application filed by the accused under Section 239 of Cr.P.C. Consequently, the revision petition stands rejected by confirming the order dated 15.03.2016 passed by the court below in Special Case No.33/2012.
Sd/-
JUDGE sbs