Bangalore District Court
State Of Karnataka Represented By ... vs ) K.B.Chikkabettaiah on 6 April, 2021
1 Spl.C.C.No.131/2011
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU SPECIAL COURT (P.C.ACT) (C.C.H.No.24)
Dated: This the 06th day of April, 2021
PRESENT:
LAKSHMINARAYANA BHAT. K, B.A., LL.B.,
XXIII Additional City Civil and Sessions Judge
Special Judge, (P.C.Act)
Bengaluru Urban District, Bengaluru City.
Special C.C.No.131/2011
Complainant: State of Karnataka represented by Police
Inspector, Karnataka Lokayuktha Police Wing,
City Division, Bengaluru.
(By Sri.C.Balakrishna Special Public
Prosecutor)
V/s
Accused : 1) K.B.Chikkabettaiah, then Special Land
Acquisition Officer, K.I.A.D.B., Gandhinagara
Divisional Office, Bengaluru. Residing at
House No.589, 1st Cross, K.G. Lay Out, 3rd
Phase, 3rd Block, B.S.K III Stage, Bengaluru-
85.
2) Muniraju S/o Late Anjinappa Horamavu
village and Post, K.R.Puram, Hobli,
Bengaluru
(By Sri.C.G.Sundar, Advocate for A.1 and Sri
M.Nanjunda Gowda for accused No.2)
2 Spl.C.C.No.131/2011
JUDGMENT
The Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, Bengaluru, has filed charge sheet against the accused for the offence punishable under section 7 and Section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ( in short P.C. Act) and sections 120-B, 420 IPC and section 192(A) of Karnataka Land Revenue Act 1964.
2. The brief facts of the prosecution allegations is that accused No.1 was working as Special Land Acquisition Officer under Karnataka Industrial Area Development Board (hereinafter referred to as 'KIADB'). During investigation in Crime No.24/2010, it is revealed to the Lokayukta police that the officers of K.I.A.D.B. are involved in commission of offence of corruption and criminal misappropriation during payment of compensation in favour of the land owners in land acquisition proceedings. In pursuance of the report, a case was registered in Crime No.44/2010 against the accused No.1 Chikka Bettaiah and others. During investigation, the concerned police secured the case file and documents relating to payment of compensation pertaining to Sy.No.74/2 of Arebinnamangala village, Bengaluru Taluk. Accused No.1 being the Special Land Acquisition Officer even though accused No.2 is not the actual owner of the property has disbursed compensation of Rs 1,39,50,000/- in favour of accused No.2. CW 4 Ramesh being the legal representative of the original grantee and owner Munikrishnappa approached accused No.1 and claimed compensation relating to Sy.No.74/2. The accused no.1 alleged 3 Spl.C.C.No.131/2011 to have demanded illegal gratification of Rs 10,00,000/-. Accused No.2 by way of criminal conspiracy with accused no.1 falsely claimed he is the actual owner and purchaser of acquired land in Sy.No.74/2 through registered sale deed has received the compensation. After completion of investigation, the prosecution obtained valid sanction against accused no.1 from the competent authority and has filed the charge sheet against the accused.
3. After filing of the charge sheet, cognizance of the offence against the accused was taken and after securing their presence they were enlarged on bail. After compliance of mandatory requirement under section 207 of Cr.P.C and after hearing both side, charges were framed. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution has examined PW 1 to 15 witnesses and produced documents marked as Ex. P1 to P22. After conclusion of the prosecution evidence, the accused were examined under section 313 of Cr.P.C. Accused No.1 has also filed written statement when he was examined under section 313 of Cr.P.C. The accused did not choose to lead any oral evidence in support of their defence. However, during cross examination of the prosecution witness, accused No.1 confronted and got marked Ex D1 document in support of his defence.
5. Heard the arguments. The learned advocate appearing for accused No.1 has filed written arguments and relied upon the following reported judgments.
4 Spl.C.C.No.131/20111. W.P.No.736/2018 (GM-RES) between Lakshman Rao Peshve V/s The Karnataka Lokayuktha.
2. Crl.A.Nos 100-101/2021 (Arising out of S.L.P.(Crl) Nos 4729- 4739/2020 between N.Vijayakumar V/s State of Tamilnadu.
3. 2011 AIR SCW 688 between Kalyan Kumar Gogoi V/s Ashutosh Agnihotri and another.
4. 2015 AIR SCW 5263 between P.Satyanarayana Murthy V/s District Inspector of Police and another.
5. 2016 Crl.L.J. 371 between Prof.N.K.Ganguly V/s C.B.I. New Delhi.
6. 2016(1) AKR 252 (B.S.Yeddyurappa V/s Principal Secretary to His Excellency the Governor of Karnataka and others)
7. 2016 Crl.L.J. 482 (Christy Fried Gram Industry, Bangalore and another V/s State of Karnataka and others.)
8. 2014 SAR (Criminal) 554 (B.Jayaraj V/s State of A.P)
9. 2014 Crl.L.J. page 930 (C.B.I V/s Ashok Kumar Aggarwal)
10. AIR 2016 Supreme Court page 298 (Krishan Chander V/s State of Delhi)
11. 2012(5) Kar.L.J. page 545 (L.Shankaramurthy and others V/s State by Lokayuktha Police, City Division, Bengaluru Urban Division, Bengalore.
6. After analyzing the oral and documentary evidence produced by the prosecution and after hearing the arguments and on application of the ratio laid down in the above referred judgments to the facts of the case, at this stage, the points that would arise for my determination are:
1) Does the prosecution has proved that they have obtained a valid prosecution sanction order against accused No.1?5 Spl.C.C.No.131/2011
2) Does the prosecution beyond all reasonable doubt proves that accused No.1 being the Special Land Acquisition Officer demanded illegal gratification of Rs 10,00,000/- from PW 4 and thereby he is guilty of offence?
3) Does the prosecution beyond all reasonable doubt proves that accused No.1 being the public servant by corrupt or illegal means has obtained pecuniary advantage by abusing his position as a public servant while holding the office as a Special Land Acquisition Officer and thereby he is guilty of offence of criminal mis-conduct?
4) Does the prosecution beyond all reasonable doubt proves that the accused No. 1 and 2 have entered into a criminal conspiracy for the purpose of cheating and disbursment of the compensation of Rs 1,39,50,000/- in favour of accused No.2?.
5) Does, the prosecution beyond all reasonable doubt proves that the accused No. 1 and 2 in furtherance of their criminal conspiracy have committed the offence of cheating even though they were aware of the fact that acquired land Sy.No.74/2 of Arebinnamangala village belongs to Krishnappa and thereby they are guilty of offences?
6) What order?
7. My findings on the above points are as under:
Point No.1: In the affirmative Point No.2: In the Negative Point No.3: In the affirmative 6 Spl.C.C.No.131/2011 Point No.4: Partly in the affirmative Point No.5: In the negative Point No.6: As per final order for the following REASONS
8. Point No.1 :- Section 19 of the P.C. Act bars the court from taking cognizance of the offence enumerated therein, alleged to have been committed by a public servant except with the previous sanction of competent authority. The object of the provision is to protect the public servant from harassment on frivolous or unsubstantiated allegations. Therefore obtaining a valid sanction is a condition precedent for taking cognizance of the offence punishable under the P.C.Act. In this regard, the prosecution has produced Ex P-17 the sanction order dated 21.06.2011 passed on behalf of and in the name of His Excellency Governor of Karnataka and the said order is signed by Deputy Secretary to Government of Karnataka. In order to prove Ex.P-17 sanction order, the prosecution has examined PW- 7 K.P. Mohan Raj, Deputy Secretary. In his examination-in- chief, the witness deposed that accused No.1 was working as Special Land Acquisition Officer, K.I.A.D.B. and the Investigating Officer has placed requisition for sanction along with the first information report, proceedings of Superintendent of Police Karnataka Lokayukta, search warrant, copy of the documents collected during investigation and case file relating to the land acquisition proceedings. As per the evidence, the former Secretary working in D.P.A.R has sent the file to Chief Secretary and the Hon'ble Chief Minister has accorded sanction to prosecute against accused No.1 and after approval the file sent 7 Spl.C.C.No.131/2011 back through proper channel to the Deputy Secretary. In furtherance of above proceedings, PW-7 has stated that he has signed the prosecution sanction order against accused No.1 as per Ex P17. As per the evidence of PW 7, accused No.1 is a K.A.S officer and Government is the competent authority to remove him from his services and therefore they are the competent authority to pass Ex P17 sanction order.
9. The learned defence counsel would submit as per evidence of PW 7 elicited during cross examination that His Excellency Governor is the authority competent to remove the accused from his office, secondly there is no reference file placed before Hon'ble Chief Minister and thirdly final sanction order not placed before Cabinet or His Excellency Governor and hence it is defective.
10. During cross examination, the witness has admitted that accused No.1 is a K.A.S Grade Officer and His Excellency Governor is the competent authority to remove the accused from service. The witness has further admitted that there is no reference in Ex P17 order that the file reached to Hon'ble Chief Minister or His Excellency Governor. The witness has admitted that the cabinet has not approved to pass Ex P17 sanction order. PW 7 has deposed that the material placed on record by the prosecution, prima- facie reveal accused No.1 has committed the alleged offence and therefore in the name of Hon'ble Governor he has passed an order by according sanction to prosecute the accused. The witness has been cross examined at length, but the learned defence counsel has failed to elicit 8 Spl.C.C.No.131/2011 any material evidence to disbelieve his testimony and to discard Ex.P-17 documentary evidence.
11. The learned advocate appearing for the accused No.1 has relied upon the judgment of Hon'ble High Court of Karnataka dated 25.02.2020 in W.P.No.736/2018. As per the facts of the said judgment, Assistant Executive Engineer, Public Works Department, has been prosecuted and the Hon'ble Public Works Department Minister accorded sanction for prosecution. The Hon'ble High Court has observed that the file is not placed before the cabinet or before the Governor for perusal of the sanction and held that the sanction accorded by the Minister for Public Works Department is not in accordance with law and proceedings against accused came to be quashed.
12. In the judgment N.K.Ganguly's case relied by learned defence counsel, the order of summoning the accused was challenged under section 482 of Cr.P.C and the Hon'ble High Court dismissed the petition. There was charge under section 13(1)(d) and 13(2) of P.C.Act against the applicant and others for illegal transfer of flats and on preliminary enquiry, criminal conspiracy and charge sheet, the competent authority declined to grant sanction under section 19 of the Act, but the Special Judge took the cognizance of the offence and the Hon'ble High Court refused to interfere for want of sanction and in the above circumstances, the order of the trial court issuing summons to the accused came to be set aside.
9 Spl.C.C.No.131/201113. In the judgment of B.S.Yeddyurappa's case, the question before the Court regarding grant of sanction by His Execellency Governor and the said order was challenged and the Hon;ble High Court held that the sanction order is illegal for want of reasons. The aforesaid judgment is not applicable to the case on hand.
14. The Hon'ble Apex Court in (2007) 1 SCC (1) Prakash Singh Badal V/s State of Punjab in para 29 held that mere error, omission or irregularity in sanction is (sic not) not considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of the jurisdiction as observed in Narasimha Rao case.
15. In the judgment reported in ILR 2018 Kar. 4459 Theerthira N Appachu vs State of Karnataka accused was a Class I Officer challenged sanction accorded by concerned Minister and argued the matter should have been placed before Cabinet of the Government. In para 7 Hon'ble court held while examining the competency of an authority to accord sanction, especially in the case of a government servant, it is enough if the sanction order conforms to section 19(1)(b) of the P.C. Act. If the procedure prescribed under the Business Rules are not followed within the Government set up, it is only an irregularity. In ILR 2017 Kar 3531 Dr. H.C. Sathyan Vs. The State of Karnataka Hon'ble High court held the object of granting sanction is only to protect the innocent public servant who has 10 Spl.C.C.No.131/2011 been falsely implicated. If the court goes too meticulously with reference to each and every word or sentence of sanction order, it would create a deadlock. Any narrow or too hyper technical analysis of facts and interpretation would defeat the very legislative policy. Even though small doubt or confusion arises which are not sufficient to up root the sanction, order has to be accepted. The anti corruption laws are intended to make effective provisions for prevention of bribe and corruption. It is social beneficiary legislation has to be liberally construed so as to advance its objects.
16. The Hon'be Apex court in (2012)3 SCC 64 Dr. Subramanian Swamy vs Dr. Manmohan Singh and another in para No. 68 held " Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.
11 Spl.C.C.No.131/201117. From Ex P17 order and oral evidence of PW 7, the prosecution has successfully proved they have obtained valid sanction. The prosecution has further proved by letting evidence that all the particulars were placed before the sanctioning authority for due application of mind and Ex P17 sanction order speaks for itself. In (2015) 2 S.C.C. 33 Manzoor Alikhan V/s Union of India, the Hon'ble Court in para 8 and 13 held that requirement of sanction has salutory object of protecting an innocent public servant against un-warranted and malafide prosecution. At the same time, need to prosecute and punish the corrupt is no ground to deny protection to the honest. "A fine balance has to be maintained between need to protect a public servant against the malafide prosecution and the object of upholding probity in public life in prosecuting the public servant against whom prima-facie allegations of corruption exists. Even after sanction, it is the burden of prosecution to prove the guilt of the accused beyond all reasonable doubt remains as it is. Therefore the parliament in its wisdom under section 19 of P.C.Act has taken care to restrain the accused to raise defence regarding any error, omission or irregularity in sanction unless resulted in a failure of justice and as per explanation error includes competency of the authority to grant sanction. After considering all these aspects this court can arrive to the safe and definite conclusion that the prosecution has obtained valid sanction and proved by oral and documentary evidence. In view of binding precedent of Hon'ble Apex Court and earlier judgment of Hon'ble High Court in Theerthira N Appachu and Dr.H.C.Sathyan case the ratio in the 12 Spl.C.C.No.131/2011 judgment in Lakshman Rao Peshve case is not applicable to the facts of the case. In the result my findings on point No.1 is in affirmative.
18. POINTS No. 2 to 5: These points are inter-connected and taken together for decision in order to avoid repetition of reasons and for brevity. Amongst the prosecution witnesses examined, PW 1 Smt. Nagamma is a witness to Ex P1 panchanama dated 22.09.2010 drawn in the office of accused No.1 at the time of seizure of documents. The documents seized as per Ex P-1 mahazar are not the subject matter of the offence in this proceedings charged against the accused. PW 1 is also a witness to Ex P2 panchanama dated 29.09.2010 drawn in the office of the Police Inspector Ravishankar and at that time totally 48 land acquisition case files have been seized from the office of the K.I.A.D.B. .
19. PW 2 K.C.Lakshminarayana is the Police Inspector and as per his evidence he received credible information on 28.06.2010 that the KIADB officers are demanding illegal gratification from the land owners for disbursing compensation in respect of the acquired property. His evidence further reveals during investigation in crime No.24/2010 he came to know the KIADB officers are indulged in illegally disbursing the compensation and in this regard he has submitted a report dated 29.01.2010 to his higher officers and they have directed to register case against the concerned Land Acquisition Officers. In furtherance, he has given Ex P3 statement to PW 3 Police Inspector, Karnataka Lokayuktha. In cross examination, it is 13 Spl.C.C.No.131/2011 elicited that during investigation in crime No.24/2010 of Lokayukta Police Station PW 2 has received information regarding misappropriation in the payment of compensation relating to the present case. The witness has further admitted that Crime no.24/2010 was a trap case and hence he did not proceed with the investigation regarding allegations made against the accused for the alleged offence. In Ex P-3 report, PW 2 has reported that accused No1 was working as Land Acquisition Officer from 03.07.2009 to 11.11.2009 and during the said period a total Rs 2,98,47,92,500/- compensation was disbursed and they have suspected illegalities in disbursing the said compensation. Ex P3 statement contains the details and mode through which KIADB officers and officials engaged in doing illegal acts while disbursing compensation.
20. PW 3 K.Ravishankar was working as Police Inspector and as per his evidence, in furtherance of report of Pw 2 as per Ex P3 he has registered Crime No.44/2010 and received requisition from PW 4 as per Ex P4 on 20.10.2010. It is the evidence of PW 3 that he has sent requisition to KIADB to send the file relating to Sy.No.74 of Arebinnamangala village for the purpose of investigation and received those documents through Ex P5 letter dated 21.10.2010 from Special Land Acquisition Officer, KIADB. The evidence of PW 3 would show that as per Ex P6 they drew a mahazar on 21.10.2010 relating seizure of file relating to Sy.No.74 of Arebinnamangala village. The file seized as per Ex P-6 mahazar relating to land acquisition case of Sy.No.74 is marked as per Ex P7 containing page numbers 1 to
103. PW 3 further claimed that he has recorded the statement 14 Spl.C.C.No.131/2011 of witnesses and collected Ex P-9 and Ex P10 documents from Upparapete Police Station during his investigation.
21. The evidence of PW 3 reveals that on 31.01.2011, he has received Ex P11 and Ex P12 checklist verification from Surveryor Lokesh (PW 11). He further deposed that on 31.01.2011 he received Ex P13 report from Special Tahasildar, Bengaluru North Taluk and on 15.02.2011 he received Ex P14 report from PW 15 H.S.Ramakrishna, Special Land Acquisition Officer. That, on 25.02.2011 he obtained Ex P16 document from KIADB to ascertain the procedure to be followed in land acquisition proceedings.
22. The evidence of PW 3 shows that he has sought prosecution sanction and collected the sanction order as per Ex P17. As per his evidence during investigation, it is revealed that Sy.No.74/2, and Sy.No. 74/P2 of Arebinnamangala village is one and the same land. Accused No.1working as Special Land Acquisition Officer by corrupt and illegal means and by abusing his position as public servant alleged to have entered into a criminal conspiracy with accused No.2 and disbursed the compensation. The witness further claimed that accused No.1 has demanded illegal gratification of Rs 10 lakhs from PW 4 Ramesh and thereby committed an offence of criminal misconduct and accused No.1 has unlawfully and illegally issued a cheque relating to the compensation of Rs 1,39,50,000/- in favour of accused No.2.
15 Spl.C.C.No.131/201123. During cross examination, the witness admitted that the Lokayukta police registered the FIR proceeded with the investigation and filed final report against the accused. It is elicited that there is no complaint for the alleged demand of bribe by accused no.1 or they have recovered bribe amount from accused No.1. It is contended by the accused No.1 that the property of PW 4 was not acquired and therefore he did not file any application claiming compensation. But the witness has given an explanation that the mother of PW 4 has filed an application claiming compensation before KIADB.
24. PW 4 Ramesh in his evidence has claimed that his father Muni Krishnappa was the original grantee and in Sy.No.74/2, 2 acre 10 guntas of land was granted in favour of his father in the year 1951-52. The witness further admitted that his father Munikrishnappa has executed a registered sale deed in favour of one Krishnappa. As per his evidence they have challenged the said sale deed and approached Assistant Commissioner under the provisions of PTCL Act and the application filed by his mother Muniyamma and brother Narasimha came to be allowed. He further deposed that the Assistant Commissioner has passed an order canceling the sale deed executed by his father Munikrishnappa in favour of purchaser. In 2006, KIADB acquired the aforesaid land in Sy.No.74 and they have filed objections to KIADB not to pay compensation in favour of the aforesaid purchaser Krishnappa. The witness admitted the purchaser Krishnappa has challenged the order of Assistant Commissioner before the Deputy Commissioner and it was pending for consideration. But in the 16 Spl.C.C.No.131/2011 meantime, accused No.2 has collected the compensation of Rs 1,39,50,000/-. PW 4 has deposed that in this regard for claiming compensation when he approached KIADB - accused no.1 alleged to have demanded bribe amount of Rs 10 lakhs.
25. During the cross examination of PW 4 it is elicited that the resumption order passed by the Assistant Commissioner by exercising powers under the provisions of the Karnataka SC/ST (prohibition of transfer of certain land) Act 1978 (hereinafter in short referred to as PTCL Act) was challenged before the Deputy Commissioner and appeal was allowed and order of Assistant Commissioner was set aside. Aggrieved by the said order Muniyamma i.e. mother of PW 4 has filed writ petition W.P.No.28621/2012 (SC/ST) before the Hon'ble High Court of Karnataka and the said petition came to be dismissed and order of Deputy Commissioner was confirmed. The final order passed by the Deputy Commissioner or by the High Court in the writ petition is not available on record. The accused has tried to convince that acquisition proceedings relating to Sy.No.74 was commenced in the year 2006 can be made out from Ex.P-7 and therefore no criminal liability can be fixed on accused No.1 for his role in mere issuing the cheque towards compensation in favour of accused No.2. It is argued on behalf of accused No.1 that as on date he took charge on 03.07.2009, the previous officer Special Land Acquisition already passed an order to make payment of compensation in favour of accused no.2 and hence prosecution charge is not sustainable.
17 Spl.C.C.No.131/201126. During cross examination of PW 4, the witness has admitted that he is having document to show that the property was granted in the name of his father Munikrishnappa. The witness admitted the order of Assistant Commissioner came to be set aside by the Deputy Commissioner and they have challenged the order before the Hon'ble High Court of Karnataka and writ petition came to be dismissed and order of Deputy Commissioner was confirmed. The witness further admitted that they have not challenged the order of the Hon'ble High Court of Karnataka passed in writ petition. It is suggested on behalf of the accused that Sy.No.74/2 of Arebinnamangala village is not connected to the witness or his family. The witness has admitted that he has not filed any application before KIADB claiming compensation.
27. Accused No.2 has cross examined the witness stating that PW 4 was not a party in the PTCL proceedings before the Assistant Commissioner. During cross-examination the witness has admitted that on 15.05.1951 2 acres 10 guntas of land in Sy.No.74 was granted in favour of Doddamuniga as per the saguvali chit, but accused No.2 has not produced any such documents. There is no reference in any of the prosecution documents with regard to the grant of land measuring 2 acres 10 guntas in Sy.No.74 in favour of Doddamuniga and hence admission of PW 4 is having no legal sanctity. The defence of the accused No.2 is that Muniyappa is the son of Doddamuniga and his two wives and children jointly executed sale deed dated 07.08.2006 in respect of Sy.No.74/2 measuring 2 acres 10 guntas in his favour and in furtherance of said sale deed, khatha 18 Spl.C.C.No.131/2011 and other revenue documents are changed in his name. It is submitted that by virtue of the aforesaid sale deed, accused No.2 claiming to be the absolute owner of the property and has legally and lawfully received the compensation from K.I.A.D.B.
28. PW 5 G.M.Basavaraju examined on behalf of the prosecution is a Surveyor and as per his evidence on 28.09.2010 at the request of the Lokayukta police, he visited the office and verified total 48 case files and the police seized those files as per Ex P2 mahazar and he is a witness to the said document. It is the evidence of PW 5 that on 21.10.2010 the police have seized Ex.P-7 file relating to Sy.No.74/2 as per Ex P6 mahazar. During cross examination, the witness has admitted that he is not remembering at the time he verified the file availability of joint measurement council sketch in Ex P7 case file.
29. PW 6 Smt.S.S.Geetha, working as Senior Assistant in KIADB, Bengaluru and as per her evidence, she was looking after verification of the case file. It is admitted she has made a note in Ex P7 case file relating to acquisition of Sy.No.74/2 of Arebinnamangala village and filing of application and production of documents by accused No.2 for claiming compensation. As per her evidence, Muniyamma has also filed an objection in the said proceedings. Acused No.1 has directed to call for report from surveyor regarding Sy.No.74/P2 and 74/2 and she has complied the said order. As per the evidence of PW 6 she has issued notice to PW 14 Thimmareddy and after obtaining survey report submitted the file before accused No.1. During cross 19 Spl.C.C.No.131/2011 examination, it is elicited that PW 15 Ramakrishna was working as Land Acquisition Officer before 03.07.2009 and as per Ex P7 there is a note in the order sheet that no impediment to issue cheque relating to compensation in favour of accused No.2. As per para No.10 in Ex P7 cheque was also ready for issue on 29.06.2009. She further deposed that former Special Land Acquisition Officer has recommenced for issuing cheque relating to compensation in favour of accused No.2 and not accused No.1.
30. PW 8 Ranganath working as Special Land Acquisition Officer and he has deposed that on 27.11.2010 as per the requisition of Police Inspector, Karnataka Lokayukta sought information relating to Sy.No.74/1 of Arebinnamangala village. He claimed to have verified the documents relating to Sy.No.74 and submitted Ex P13 report. PW 8 has specifically deposed that Sy.No.74 of Arebinnamangala village originally measuring 7 acres 17 guntas including 27 guntas of Kharab land. As per order of Tahasildar, Devanahalli dated 26.04.1957, 2 acre 10 guntas each was granted in favour of 1. Munikrishna, 2. Kadariga 3. Dodda Poojiga and accordingly, RTC was entered in their names. As per order dated 21.01.1976 pakka phodi and durast akarabandh was conducted and property granted in favour Kadariga was sub-divided as Sy.No.74/1. Property sub- divided as Sy.No.74/2 was allotted to Munikrishna and as Sy.No. 74/3 was allotted to Dodda Poojiga. As per his evidence, after phodi work Sy.No.74 ought to have been canceled, but the RTC was wrongly continued as Sy.No.74/P1. He has deposed 20 Spl.C.C.No.131/2011 regarding different mutation orders passed from time to time and also non availability of the RTC and files relating to certain period. As per his evidence and report, Kadariga had no male issues and his son-in-law Doddamuniga (husband of Chikka Puttamma D/o Kadariga) inherited the property and the said mutation order register is not available. After the death of aforesaid Doddamuniga, his son Muniyappa got changed the khatha in his name and by sale deed dated 28.09.2006 alienated the property in favour of accused No.2. The witness has specifically deposed that the property granted in the name of Kadariga is comprised in Sy.No.74/1. But in the RTC, it has been wrongly entered as Sy.No.74/2.The witness has admitted he has given Ex P13 report to the investigating officer and as per his evidence, the property in Sy.No.74/P1 is actually not in existence. According to the evidence of PW 9 property of Kadariga in Sy.No.74/1 wrongly entered as Sy.No.74/2 and property of Munikrishna is in Sy.No.74/P2, but the relevant documents relating to the aforesaid property is missing in the revenue department.
31. During cross examination of PW 8 the accused got marked Ex D1 land holding certificate issued by the Village Accountant, Singhahalli Circle, Bengaluru North Taluk. As per the said document Sy.No.74/2 measuring 2 acres 10 guntas, Sy.No.74/3 measuring 2 acres 10 guntas totally 4 acres 20 guntas, accused No.2 is shown as kathadar and he is cultivating the property. Merely admitting the document during cross examination of PW 8 is not going to establish the right, title and possession of accused No.2 over the said property. Moreover, 21 Spl.C.C.No.131/2011 the witness PW-8 is not the author of Ex D1 document. The contents of Ex D1 can be proved only by evidence of the author of the said document, who has issued the said certificate. During cross examination of PW 8 has admitted that there is no dispute regarding hissa phodi of Sy.No.74 of Arebinnamangala village and it is the duty of the Tahasildar and Assistant Director of Land Records for rectification of the wrong entries in the RTC.
32. PW 10 Abdul Khayyum is a retired Special Deputy Commissioner, KIADB worked during the period of October 2010 to February 2011. As per his evidence, on 25.02.2011, Lokayukta police called him to the office and requested him to verify the land acquisition file relating to Sy.no.74/2 of Arebinnamangala village and ascertain whether any illegality committed in disbursing the compensation amount. He has also deposed that Sy.No.74/2 measuring 2 acres 10 guntas khata was appearing in the name of Doddamuniga and Krishnappa and notifications were issued for acquisition of the said land in the above names referred but accused No.2 has received the compensation of Rs 1,39,50,000/- through cheque dated 29.06.2009. As per the documents placed for his inspection, Sy.No.74/2 was granted by way of saguvali chit in favour of Munikrishnappa and he belonged to schedule caste and in the year 1974 Munikrishnappa has alienated the property in favour of Krishnappa. After the death of Munikrishna, his legal representatives by name Muniyamma and others have filed an application under P.T.C.L. Act before the Assistant Commissioner, Bengaluru and the said petition was decided in favour of legal representatives of Munikrishnappa. Assistant 22 Spl.C.C.No.131/2011 Commissioner has passed an order directing resumption and restoration of the possession of the property in favour of legal representatives of original grantee Munikrishna. As per his evidence Sy.No.74/2 in the RTC new number Sy.No.74/P2 is given and in Sy.No.74 three hissas have been made as 74/1 in the name of Kadariga, Sy.No.74/2 in the name of Munikrishnappa and Sy.No.74/3 in the name of Doddapoojiga and all hissa are measuring 2 acres 10 guntas each. The entire evidence of PW 10 is in consonance with the testimony of PW 8 Ranganath and Ex P-13 report. PW 10 has also deposed that Sy.No.74/P2 is not in existence and Sy.No.74/2 property belongs to Muniyamma and the claim of accused No.2 claiming owner of the property by virtue of sale is not correct. He deposed documents were not available on record to ascertain how the said Dodda Muniga claimed right over the property alienated in favour of accused no.2. The witness has specifically deposed that Munikrishnappa acquired property by virtue of grant and in this connection, documents were placed before him. Ex P-18 is the report submitted by PW 10.
33. During the cross examination of PW 10 he has claimed as an expert, the Investigating Officer has obtained his report as per Ex P18. The witness has admitted final notification was published in September 2008 and he has not verified the documents submitted by accused No.2 before the Land Acquisition officer referred in Ex P7 order sheet. During cross examination of PW 10 on behalf of accused No.2, the witness admitted before giving Ex P18 report, he has not verified original grant certificate relating to Sy.No.74/2 23 Spl.C.C.No.131/2011 measuring 2 acres 10 guntas. It is contended on behalf of accused No.2 that Sy.No.74/2 measuring 2 acres 10 guntas was granted in the name of Dodda Muniga on 15.05.1951. In order to substantiate this fact, accused No.2 has failed to elicit any admission or produced document when he was examined under section 313 of Cr.P.C. More over in none of the documents produced by the prosecution there is any reference that Sy.No.74/2 measuring 2 acres 10 guntas was originally granted in the year 1951 in favour of Dodda Muniga. The witness has admitted that there was proceedings under the provisions of PTCL Act before the Assistant Commissioner and also order of Assistant Commissioner was challenged before the Deputy Commissioner, but witness has shown ignorance of the order of the Deputy Commissioner was challenged before the Honble High Court and the said writ petition came to be dismissed. Witness has specifically denied from the date of registration of the sale deed, till the date of disbursement of compensation all the revenue documents relating to Sy.No.74/2 was appearing in the name of accused No.2. The witness has deposed that hissa phodi document was not appearing in the name of accused No.2.
34. PW 11 B.K.Lokesh and PW 12 Ningaraju are working as Survey Supervisor and they have issued Ex P11 certificate. They have deposed identified Sy.No.74/2 of Arebinnamangala village and ascertained the said property was the subject of acquisition by KIADB and it is revealed that the property is in the possession of legal heirs of Munikrishnappa. They claimed to 24 Spl.C.C.No.131/2011 have verified the documents and found joint measurement certificate sketch was not available in Ex P7 land acquisition proceeding case file and from the records available name of accused No.2 was appearing as a purchaser, but his name was not found in the notification.
35. They have deposed the notification was published in the gazette in the name of Doddamuniga and Krishnappa but compensation was disbursed in favour of accused No.2. Ex P11 and P19 are the report and both these witnesses are the signatories to those documents. In Ex P19 report the witnesses have shown as per document Sy.No.74/2 measuring 2 acres 10 guntas was appearing in the name of accused No.2 and in respect of the measurement, survey sketch is not available. The notification was issued in the name of Doddamuniga and Krishnappa son of Chikkavenkatappa. During cross examination of PW 11, the witness has admitted at the time of preparing Ex P11 report he has not seen the sale deed and other documents relating to Sy.No.74/1, Sy.No.74/2 and Sy.No.74/3 and also the sale deed got executed by accused No.2.
36. PW 12 during his cross examination has deposed he has not seen any documents that on account of sale deed and khata was appearing in the name of accused No.2, the compensation was disbursed in his name. The witness has denied that in the absence of Joint Measurement certificate sketch it is not possible to ascertain the boundaries of the property. The witness has denied without verification of the 25 Spl.C.C.No.131/2011 relevant documents, they have issued Ex P11 and 19 certificates.
37. PW 9 Jayaramaiah was working as Head Constable in Upparapete Police Station and in furtherance of requisition statement given by Muniymma he has sent documents to Lokayuktha police as per Ex P9 letter. Evidence of PW 9 and Ex P-9 and 10 documents are not so relevant for the present case. From the contents of Ex P9 and P10 it reveals that Muniyamma has given petition against accused No.2 before the Upparapete Police Station on 15.02.2010.
38. PW 13 Muniyappa son of Dodda Muniga is one of the vendors of accused No.2 as per Ex P21 registered sale deed dated 07.08.2006. As per the contents of Ex P-21 and evidence of PW-13 the subject matter of the sale deed Sy.No.74/2 is shown as the ancestral property of the vendors. Even in the recitals of Ex P21 sale deed, there is no details how Dodda Muniga had acquired right, title and possession over the said property. The accused have not cross examined PW 13.
39. PW 14 Thimmareddy was a retired surveyor and as per his evidence in view of direction of KIADB officers after spot inspection he has prepared Ex P22 sketch and Ex P23 mahazar and submitted the documents. The witness has been cross examined by the learned Public Prosecutor that at the instance of accused he has submitted Ex P22 and P23 favourable report to assist accused No.2 to illegally claim compensation. Ex P22 and P 23 sketch and panchanama dated 01.07.2009 and as on 26 Spl.C.C.No.131/2011 the date when the order was passed finds reference in Ex P7 dated 29.06.2009 accused No.1 was not working as Special Land Acquisition officer. Accused No.1 has also claimed this fact. During cross examination of PW 14, he deposed that the land purchased by accused No.2 as per sale deed has been acquired by the KIADB.
40. PW 15 H.S.Ramakrishna was working as Special Land Acquisition officer, KIADB, Bengaluru. It is admitted that he has issued Ex P14 report to the Investigating Officer. It is the evidence of PW 15 that accused No.2 has produced the sale deed and other documents to claim compensation in respect of the acquisition of 2 acres 10 guntas in Sy.No.74/P2 and the said land was also subject matter of dispute under PTCL Act. He deposed that there was discrepancy as Sy.No.74/3 in the sale deed, but the above evidence of PW 15 is not reflected in Ex P7 order sheet or registered sale deed. He further deposed after doubts arose regarding the existence of land he directed measurement of the property and during his tenure as a Land Acquisition Officer, he did not disburse the compensation in favour of accused No.2.
41. During the cross examination, PW 15 has admitted that he has made an order to issue cheque for Rs 1,39,50,000/- in favour of accused No.2 as shown in Ex P7 order sheet and the documents submitted by the Surveyor PW 14 reveals accused no.2 was in possession of the acquired property. It is elicited that it is not the duty of the Land Acquisiton authority to verify the revenue documents.
27 Spl.C.C.No.131/201142. Among the documentary evidence produced by the prosecution Ex P7 is the entire file relating to the acquisition of Sy.No.74/2 of Arebinnamangala village. Ex P7 document contains total page nos 1 to 103. As per the order sheet title page, there is a reference that the file is relating to acquisition of Sy.No.74/2 measuring 2 acres 23 guntas, kharab 13 guntas and remaining extent 2 acres 10 guntas has been acquired by the KIADB and notice has been issued under section 28(1) of K.I.A.D. Act. In Ex P7 order sheet, Doddamuniga and Krishnappa son of Chikkavenkatappa are shown as " ಖತದರರರ ಮತರತ ಅನರಭವದರರರ". After service of notice on 02.11.2006, Venkataramanappa son of Doddamuniga entered appearance and reported the death of Doddamuniga and claimed he is growing ragi in the property and having objection for the acquisition. As per the contents of Ex P7 order sheet page no.1 there is a reference that preliminary notifcation was published on 07.08.2006.
43. As per Ex P7 order sheet dated 28.02.2009, there is a note that objector appeared and filed objections for the acquisition of the aforesaid land. A notice was issued to the objectors reporting that their objection would be considered at the time of disbursment of the compensation. As per the order sheet dated 05.06.2009, a reference that on 28.02.2009/ 22.05.2009 accused no.2 claiming himself as purchaser of the property has produced original sale deed, RTC and in all 11 documents claiming compensation for acquisition of Sy.No.74/2 of Arebinnamangala village measuring 2 acres 10 guntas of 28 Spl.C.C.No.131/2011 land. There is also reference that Murthy son of Doddapoojiga and G.Manjunath advocate have also filed objections claiming compensation. Muniyamma and others have filed objections on 05.03.2009 claiming title and possession over Sy.No.74/2, 74/P2 measuring 2 acres 10 guntas and they have alleged that Doddamuniga and Krishnappa son of Chikkavenkatappa have filed objections to the application and their names in the RTCs are appearing in respect of Sy.No.74/P2 measuring 2 acres 10 guntas and Sy.No.74/2 measuring 2 acres 10 guntas and separate mutation order recording those entires. As per the order sheet, Sy.No.74/2 as per MR 64/2006-07 2 acres 10 guntas entered in the name of Muniraju son of Anjinappa. In respect of Sy.No.74/P2 under MR No.6/2008-09 2 acres 10 guntas entered in the name of Muniyamma wife of late Munikrishnappa and other children of late Munikrishnappa. As per para No.5, it is noted final notification regarding the aforesaid acquisition of land in Sy.No.74/2, 2 acres 10 guntas issued in the name of Doddamuniga and Krishnappa son of Chikkavenkatappa. Accused No.2 Muniraju has purchased the property from Muniyappa son of Doddamuniga as per the registered sale deed. It is noted in the order sheet that as per the objection filed by Smt.Muniyamma and others and katha holder Krishnappa son of Chikkavenkatappa and Doddamuniga boundaries relating to notified land Sy.No.74/2 extent 2.10 acres is similar. The relevant portion of Ex P7 order sheet page No.4 date 05.06.2009 and 26.06.2009 reads as under:
ಶಶಶಮತ ಮರನಯಮಮ ಮತರತ ಇತರರರ ಸಲಸರರವ ತಕರರರ ಅರರಯಯತ ಕ ಬಯದಯಯತ ಮಗಲ ಖತದರರರದ ದಗಡಡಮರನಗ ಮತರತ ಹಗಗ ಚಕರ 29 Spl.C.C.No.131/2011 ಕಕಷಷಪಪ ಬನ ಚಕಕವಯಕಟಪಪ ರವರ ಜಮಮನಗ ಸಯಬಯಧಸರರವದರಯದ ಅಧಸಗಚನಯಲ ಹಗರಡಸರರವ ಸ ನಯ 74-2 ರ 2-10 ಗರಯಟ ಜಮಮನಗ ಸಯಬಯದಪಡರತತದ ಸ ನಯ 74-2 ರಲ 2-10 ಎಕರ ಜಮಮನನರ ನ ಲಶ ಮರನರಜರ ರವರರ ಕ ಕಯ ಪತ ಕ ದದ 7-8-06 ರಯತ ಕ ಕಯದ ಮಗಲಕ ಪಡದದರ . MR 64/06-07 ರಯತ ಮರನರಜರ ಹಸರಗ ಖತಯಗದ. ಆದರ ಸ ನಯ 74-ಪ2 ಗ ಸಯಬಯಧಸದಯತ ಶಶಶ ಕಕಷಷಪಪ ಎಯಬರವವರರ ತಕರರರ ಸಲಸದರ ಹಗಗ ಮರನಯಮಮ ಮತರತ ಇತರರರ ಸಹ ಉಪ ವಭಗಧಕರಗಳ ಆದಶಶ ನಶಡ 74-
2 ಪಯ ಬಗಗ ಕಕಶಮ ನಶಡದರ. ಈಗ ಕಕಶಮ ನಶಡದ 74-2 ಬಶರ
ದ ಈ ಜಮಮನನ ಪರಹರ ಪವತಸರವ ಬಗಗ ತಮ
ಜಮಮನಗದರ ಮ ಅವಗಹನ
ಮತರತ ಆದಶಶಕಕ ಸಲಸದ.
These two office notes dated 05.06.2009 and 26.06.2009 is inconsistent, contradicting with one another. As per the above office note dated 26.06.2009 Krishnappa appeared and filed objections and Muniyamma and others also appeared and claimed payment of compensation relating to Sy.No.74/2. PW 15 the Special Land Acquisition officer has made an order on 26.06.2009 "2006 ರಲ ನಗಯದಣಯಗರವ ಇದದ sketch ನಗಡದ ಮಯಡಸ ಅಥವ JMC ಯಡನ ಮಯಡಸ
44. As per Ex P7 that on 27.06.2009 in compliance to the order dated 26.06.2009, file was again placed before the Special Land Acquisition officer PW 15 and he has made an order "ಅನರಮಶದಸದ". As per the office note dated 29.06.2009 file was placed before the Special Land Acquisition Officer for issuing cheque for Rs 1,39,50,000/- in favour of accused no.2 and on 29.06.2009 PW 15 has made an order "ಅನರಮಶದಸದ" and further 30 Spl.C.C.No.131/2011 directed "Land availability should be checked through Surveyor". After measurement of the land by PW 14 Thimmareddy, it appears that Ex P22 and P 23 sketch and mahazar has been submitted and as per order dated 02.07.2009 the file was again placed before the officer with compliance.
45. It is admitted case of the accused no.1 that from 03.07.2009 he has been working as Special Land Acquisition Officer. As per Ex P7 order sheet order dated 04.07.2009 there is an order passed by accused No.1 that "ಸ ನಯ .74/1 , 74/2 ರ ಸಸಳ ದ ಪಡ ಕ ಕಯ ಪತ ಕ ಮತರತ ಅದರಯತRTC, MR ಹಜರ ಅದಲರ ಬದಲರ ಆಗರರವದಕಕ ತದರ ಪಡಸಬಶಕರ. ಸಕರರ ಜವಗನರ ಫಶಡರ ಆಗದದರ ಕದರ ಕಪ ಹಜರಪಡಸಬಶಕರ .
46. As per office note dated 13.07.2009 there is a reference that accused no.2 has produced Akharaband, RTC and Tippani sketch etc and requested for release of compensation amount relating to Sy.No.74/2 measuring 2 acres 10 guntas. In furtherance accused No.1 made an order dated 13.07.2009 directing to produce RTC in respect of Sy.No.74/1, 74/2, 74/3.
There is a further order dated 28.7.2009 by accused No.1 directing to make payment of compensation in favour of accused no.2.
47. The above order made by accused no.1 in Ex P7 order sheet directing to produce rectification sale deed, Akar mutation order and RTC shows it was within his knowledge that there is discrepency regarding identity, description title and ownership of acquired land and also regarding rival claim for compensation 31 Spl.C.C.No.131/2011 by accused No.2 and others. Accused no.1 before payment of compensation amount through cheque has not passed any order regarding entitlement of compensation by accused no.2 in preference to other rival claims made by Krishnappa and legal representatives of Munikrishnappa by name Muniyamma and others. Accused no.2 has not considered the objections filed by the other claimants for compensation in respect of the aforesaid property. Before issuing cheque, accused no.1 did not insist for production of rectification sale deed or any other documents as directed by order dated 04.07.2009 and 13.07.2009.
48. The documents marked as per Ex P7 reveals, accused no.2 got executed sale deed from his vendor Muniyappa son of Doddamuniga and others on 07.08.2006. The sale deed was registered on 28.09.2006 and as per the original sale deed available on record, stamp paper in which sale deed was prepared was purchased on 07.08.2006. In the said sale deed, the original name of the purchaser of e-stamp has been erased and name of Muniyappa and Muniraju is over written. As per recitals of Ex P21 sale deed, the vendor has paid the entire sale consideration as on the date of the execution of the sale deed dated 7.8.2006, but, it was registered on 28.09.2006 after more than 51 days. As per Ex P7 order sheet preliminary notification was published for acquisition of land in Sy.No.74/2 on 07.08.2006 and it appears that for the very same reason accused no.2 got executed the ante dated sale deed showing the date as 07.08.2006 even though it was registered on 28.09.2006. It appears that in order to claim that he has purchased the land in question even prior to the date of 4(1) 32 Spl.C.C.No.131/2011 notification, accused no.2 has made use of e-stamp worth Rs 150/- purchased by some body else from State Bank of Mysore and by using those stamps ante dated, sale deed in question has been prepared. There is every possibility that, the accused No.2 and his vendors colluding each other have shown wrong date of execution of sale deed as 07.08.2006 to claim right over the property.
49. In this regard, I have relied upon the judgment reported in (1996)7 SCC 426 (Sneha Prabha V/s State of Himachal Pradesh). It is settled law that any person who purchases land after publication of notification under section 4(1) of Land Acquisition Act does so at his or her peril. The acquisition proceedings point out an impediment to any one to encumber the land acquired thereunder. Therefore, any alienation of land after publication of Section 4(1) Notification does not bind the Government or the benificiary under acquisition. On taking possession of the land, all rights, title and interest in land stand vested in the State under section 16 of the Act free from all encumbrances. The right of subsequent purchaser would be subject to the provisions of Act to receive compensation.
50. In (1996) 3 SCC 124 U.P.Jal Nigam Ltd case Apex Court held alienation of land subsequent to notification under section 4(1) sale is void against the State - purchaser does not acquire any right, title or interest in the land. He cannot challenge validity of notification however entitled to claim compensation.
33 Spl.C.C.No.131/2011The purchaser steps into the shoes of erstwhile owner to claim compensation. The price prevailing as on the date of the publication of the notification under section 4(1) is the price to which the owner is entitled to. It appears for the very same reason accused No.2 created a sale deed shown to have been executed on 07.08.2006 to over come the above situation.
51. The documents produced and marked as per Ex P7 reveals that on 8.5.2009 Krishnappa S/o Chikkavenkatappa the purchaser of the property from the original grantee Munikrishnappa as per sale deed dated 11.09.1974 has filed objections before the Special Land Acquisition Officer. Therefore, before disbursment of compensation in favour of accused no.2, Krishnappa has filed his objections, is made out. He claimed to have purchased property from Munikrishnappa and also produced documents relating to the proceedings before the Assistant Commissioner initiated by the legal representatives of Munikrishnappa by name Muniyamma and others. He has also produced copy of the stay order passed by the learned Deputy Commissioner and other documents such as, copy of the sale deed. In his application he has sought for an order not to disburse the compensation till the Deputy Commissioner finally decides the appeal SC/ST/A126/08-09.
52. It is the argument of accused no.1 that the learned Deputy Commissioner set aside the order passed by the Assistant Commissioner and against the said order Muniyamma and others have preferred a writ petition before the Hon'ble 34 Spl.C.C.No.131/2011 High Court of Karnataka and in the above circumstances, order of the Deputy Commissioner has reached finality. During cross examination PW 3 and 4, accused no.1 has claimed, once the order of Deputy Commissioner reached finality, either Muniyamma or her children being the legal representatives of the original grantee Munikrishnappa are not entitled to claim compensation. There is a rival claim in respect of the property Sy.No.74/P2 - extent 2.10 acres in between the legal representatives of Munikrishnappa and purchaser Krishnappa son of Chikkavenkatappa. In furtherance of order passed by the Assistant Commissioner, possession of the property was restored to the legal heirs of original grantee Munikrishnappa and others from the purchaser Krishnappa. Therefore, the aforesaid property is presumed to be in possession of either Krishnappa son of Chikkavenkatappa (i.e., one of the objectors) or the legal representatives of original grantee Munikrishnappa. Accused no.1 has failed to explain in view of the dismissal of the writ petition filed by Muniyamma and her son Narasimhaiah how accused no.2 is going to acquire right, title and interest over the property. Accused no.2 has not produced copy of the order passed by the Deputy Commissioner in P.T.C.L proceedings or order of the Hon'ble High Court in W.P.No.28621/2012 (SC/ST) in Ex P7 land acquisition proceedings.
53. Muniyamma and others including P.W.4 K.Ramesh have filed their objections before the Special Land Acquisition Officer on 05.03.2009 and the said objection is enclosed with order passed by Assistant Commissioner dated 17.09.2008 35 Spl.C.C.No.131/2011 under PTCL Act. During cross examination of PW 4 accused Nos 1 and 2 have gone to the extent of disputing the relationship of PW 4 with family of original grantee Munikrishnappa. It is suggested that Sy.No.74/2 of Arebinnamangala village is not concerned with family of PW 4. It is suggested on behalf of accused no.2 during cross examination of PW 4 that he is not the son of Muniyappa and brother of Narasimhaiah and therefore, he was not a party in PTCL dispute before the Assistant Commissioner, Deputy Commissioner and Hon'ble High Court of Karnataka, at Bengaluru. During cross examination of PW 4, it is suggested that the property purchased by accused no.2 was originally granted in the name of Doddamuniga on 15.05.1951. There are no materials available on record to show that Doddamuniga is the original grantee. Accused no.2 claimed to have purchased the property in Sy.No.74/2 from Muniyappa as per sale deed dated 07.08.2006 and as per sale deed dated 29.12.2006 he has purchased the property in Sy.No.74/3 from Kadiraga.
54. During investigation, the prosecution through surveyors got measured the property Sy.No.74/2 of Arebinnamangala village. In this regard, they have produced Ex P11 report dated 17.01.2011 and PW11 and 12 are the surveyors, signatories to the document to Ex P11. During evidence PW 11 and 12 have specifically deposed that Sy.No.74/2 measuring 2 acres 10 guntas has been acquired by the Government and Sy.No.74/2 and 74/P2 is one and the same property. As per the materials collected by them, the said 36 Spl.C.C.No.131/2011 property is in possession of legal representatives of Munikrishnappa. As per Ex P19 the witness PW 11 and 12 have specifically shown Sy.No.74/2 measuring 2 acres 10 guntas as per sale deed appearing in the name of accused no.2. JMC sketch is not available and as per the notification, property was appearing in the name of Doddamuniga and Krishnappa son of Chikkavenkatappa. Pws 11 and 12 have expressed their opinion in Ex P19 as "ಜ.ಎಯ.ಸ.ನಕ ಲಭಭವಲಕ. ಹಡರವಳ ನಯಬರ ಯಗರರವದರಯದ ಜ.ಎಲ.ಸ ನಕ ಮಡರರವದಲಕ. ಅಧಸಗಚನಯಯತ ಹಸರರ ತಳ ಇರರವದಲಕ. ಕರಣ ಕ ಕಯ ಮಡರರವದರ ಕಯಡರಬಯದರರತತದ.".
55. Ex P13 is the report dated 13.01.2011 submitted by PW 8. As per Ex P13 report, Sy.No.74 of Arebinnamangala village totally measuring 7 acres 17 guntas including 0.27 kharab land remaining cultivable land is 6 acres 30 guntas. As per the order of the Tahasildar, Devanahalli Taluk dated 26.04.1957 in Proceedings No.D.D.40/55-56 2 acres 10 guntas granted in the name of Munikrishnappa, 2 acres 10 guntas in the name of Kadariga and 2 acres 10 guntas in the name of Doddapoojiga and in accordance with the same RTC was enetered in their respective names. In Ex P13 it is further stated that during the durasthi pakka phodi No.OMORD 54/LGP 108 dated 21.01.1976 in Sy.No.74/1 2 acres 10 guntas of land came to be allotted to Kadariga, and 74/2 2 acres 10 guntas in favour of Munikrishnappa (purchaser Krishnappa) and Sy.No.74/3 2 acres 10 guntas allotted to Doddapoojiga. In Ex P13, PW 8 has specifically stated that at the time of computer RTC Sy.No.74/p1 was wrongly entered and after sub-division of Sy.No.74 as 37 Spl.C.C.No.131/2011 Sy.No.74/1, 74/2 and 74/3 revenue authorities ought to have cancelled Sy.No.74 and 74/p1.
56. As per Ex P13 report in Sy.No.74/1 Kadariga was in possession and he had no male issues and after his death, his son in law (Husband of Chikkaputtamma) Doddamuniga succeeded to the said property. After the death of Doddamuniga, his son Muniyappa and others appears to have executed sale deed in favour of accused no.2. Therefore, prima- facie Doddamuniga is not the original grantee and property was granted in favour of Kadariga in Sy.No.74/1 (Originally Sy.No.74) to the extent of 2 acres 10 guntas. PW 4 and his mother Muniyamma are the legal representatives of Munikrishappa the original grantee in Sy.No.74/2 and Krishnappa son of Chikkavenkatappa is the purchaser of the property from Munikrishnappa and in the result report submitted by PW8 Ranganatha prima facie shows Munikrishnappa and purchaser Krishnappa are the owners in possession of the property measuring 2 acres 10 guntas in Sy.No.74/2. As per Ex P13, it is spefifically stated that Doddapoojiga is the original grantee in Sy.No.74/3 measuring 2 acres 10 guntas and the dispute arose on account of wrong entries in RTC Sy.No.74/1 as 74/2 and 74/2 as 74/p2. During the cross examination of PW 11 and 12, the accused have failed to make out the testimony of witness and report Ex P13 is incorrect and therefore, the evidence of PW 8 and Ex P13 report has to be accepted regarding the discrepency appearing in the granted land in Sy.No.74/1, 74/2 and 74/3 measuring 2 acres 10 guntas each.
38 Spl.C.C.No.131/201157. Ex P18 is the report submitted by PW 10 Special Deputy Commissioner, K.I.A.D.B. As per Ex P18, it is stated that in pursuance of the order passed by the Assistant Commissioner dated 17.09.2008 possession of property in Sy.No.74/p2 was restored to the legal representatives of Munikrishnappa by name Muniyamma and others. In the result, from the evidence of PW 10 to 12 and Ex P11, 13, 18 and Ex P19 report, it reveals possession of the property was with legal representatives of Munikrishnappa. In Ex P18 report also PW 10 has opined that there is no revenue documents available to show that how the mutation was entered in the name of Doddamuniga father of vendor of accused no.2 Muniyappa. He has also given opinion that without verification of the documents and even though discrepencies appearing in the revenue documents were noticed, the Land Acquisition officer has disbursed the compensation in favour of accused no.2.
58. The prosecution has produced Ex P16 to show the procedures to be followed in land acquisition proceedings and duties and responsibilities of the Land Acquisition Officer. Admittedly, in this case, the accused no.1 before disbursing of compensation has not collected joint measurement certificate sketch. As per section 30 of K.I.A.D. Act 1966 the provisions of Land Acquisition Act 1894 (Central Act 1/1984) shall mutatis mutandis apply in respect of the enquiry and award by the Deputy Commissioner, the reference to Court, apportionment of the compensation and payment of compensation, in respect of the lands acquired under this chapter. As per Section 30 of Land 39 Spl.C.C.No.131/2011 Acquisition Act 1894 when the amount of compensation is settled under section 11 if any dispute arises as to the apportionment of the same or any part thereof to whom the same or any part thereof is payable or as to persons to whom the same or any part thereof is payable, the collector may refer such dispute to the decision of the Court.
59. As per Section 31(2) of the Land Acquisition Act regarding payment of compensation, if they shall not consent to receive it or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted. In the case on hand, accused no.1 did not invoke the aforesaid provisions by referring the matter to the Competent Court for deciding the question of entitlement of the compensation as there was dispute between the accused no.2 and the legal representatives of Munikrishnappa the original grantee and also the purchaser by name Krishnappa son of Chikkavenkatappa to claim compensation. As per section 31(2) of Land Acquisition Act, it is mandatory when question of title to receive and entitlement of compensation as to whom it is payable competent Civil Court gets jurisdiction to decide the issue. Therefore, accused No.1 ought to have referred the matter for reference under section 31 of Land Acquisition Act 1894.
60. During the cross examination of PW 10 on behalf of accused no.2, the witness has specifically deposed that hissa 40 Spl.C.C.No.131/2011 phodi document was not appearing in the name of accused no.2 at the time of disbursing the compensation. The witness has also specifically denied that at the time of disbursement of the compensation all the revenue documents were appearing in the name of accused No.2. Accused No.2 has failed to establish his contention that Doddamuniga father of his vendor Muniyappa was the original grantee of Sy.No.74/2 subject matter of the sale deed.
61. As per Section 7 of The Prevention of Corruption Act, 1988 whoever, being public servant accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification otherthan the legal remuneration as a motive or reward for doing or forebearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person , is guilty of offence.
62. Section 13(1)(d) reads:
"A public servant is said to commit the offence of criminal misconduct -
d) if he i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing on pecuniary advantage or
ii) by abusing his position as a public servant, obtains for himself or any other person any valuable thing or pecuniary advantage 41 Spl.C.C.No.131/2011
iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
63. The accused No.1 is charged for the offence punishable under section 120B and 420 of IPC and Section 7 and 13(1)(d) of The Prevention of Corruption Act, 1988 and 192-A of Karnataka Land Revenue Act.. The accused No.2 is charged for the offence punishable under section 120B and 420 of IPC.
64. Section 120A of IPC defines criminal conspiracy and the essential ingredients of offence are a) two or more persons agreed to do or cause to be done an act b) The act agreed must be (i) an illegal act or ii) an act which is not illegal but is done by illegal means. (c) If the agreement is not to commit an offence then some act besides the agreement is (i) by one or more parties to such agreement (ii) in pursuance of the agreement. The essence of criminal conspiracy is an agreement to do an illegal act and such agreement can be proved either by adducing direct evidence or by circumstancial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available as held by the Apex Court in C.B.I, Hyderabad V/s K.Narayana Rao in 2012 Crl.L.J. 4610 (S.C).
65. In the case on hand, accused No 1 and 2 are charged for the offence of criminal conspiracy. The evidence placed on record reveals that accused No. 1 and 2 shared a common intention of criminal conspiracy in order to release the 42 Spl.C.C.No.131/2011 compensation of Rs 1,39,50,000/- in favour of accused No.2. Accused No.1 without passing any orders in connection with the rival claims made by Krishnappa Son of Chikkavenkatappa, Muniyamma and her children has proceeded to issue a cheque in favour of accused no.2 towards compensation in violation of the provisions of K.I.A.D Act and Land Acquisition Act 1984. It is true that the prosecution could not produce direct evidence regarding the alleged criminal conspiracy in between the accused. But the evidence placed on record and other attending circumstances and the manner in which accused no.1 has passed the orders in Ex P7 order sheet, called for documents and thereafter abruptly proceeded to issue cheque in favour of accused no.2 by disbursing compensation, clearly reveals criminal conspiracy in between accused No. 1 and 2 for withdrawal of the compensation amount.
66. The Apex Court in the case of Mohammed Khalid V/s State of West Bengal reported in 2002 SCC (Crl) 1734 in para 17 held the elements of a criminal conspiracy have been stated to be
a) an object to be accomplished.
b) a plan or scheme embodying means to accomplish that object
c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means.
d) in the jurisdiction where the Statute required an overt act.
43 Spl.C.C.No.131/2011The essence of a crimial conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under section 120-B prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by 44 Spl.C.C.No.131/2011 unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
18. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreements should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
20. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (see. Bhagwan Swamp Lal Bishan Lal etc etc., V/s State of Maharashtra (AIR 1965 SC 682 at p.686}) 45 Spl.C.C.No.131/2011
21. Privacy and secrecy are more characteristics of a conspiracy than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, with the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
24. As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A, then in that event mere proof of an agreement between the accused for 46 Spl.C.C.No.131/2011 commission of such a crime alone is enough to bring about a conviction under section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B (See: S.C.Bahri V/s State of Bihar).
67. The above ratio laid down clearly reveals accused Nos 1 and 2 in the case on hand have shared common intention to commit the offence of criminal conspiracy and the above offence is an independent offence and the prosecution has able to prove the conspiracy from the documentary and circumstancial evidence.
68. The accused No.1 and 2 are also charged for the offence punishable under section 420 of IPC alleging that they have committed the offence of cheating. The essential ingredients of section 420 is a person 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 47 Spl.C.C.No.131/2011 of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. To prove the offence of cheating I) Deception of any person ; ii) Fraudulently or dishonestly inducing any person to deliver any property ; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
69. In the case on hand, accused No.2 as a purchaser of the property comprised in Sy.No.74/2 from the original owner Muniyappa and his family members claimed compensation from KIADB. Whether the accused No.2 is entitled for compensation or not has to be decided by the Competent Court under the provisions of the Land Acquisition Act. In the case on hand, there is no ingredients, dishonesty on the part of accused no.2 to induce or deceive accused No.1 to deliver any property or he has committed the said offence or accused No. 1 and 2 have committed the offence of cheating against the claim of objectors by name Krishnappa or Muniyamma and others. The evidence of prosecution is absolutely silent and there are no ingredients of committing an offence under section 420 of IPC. Therefore, the prosecution has failed to prove charge against the accused for the offence punishable under section 420 of I.P.C
70. Accused No.1 is charged for the offence punishable under section 7 of The P.C.Act, and it is the burden on the prosecution to prove that the accused no.1 who is a public servant accepted or obtained or agrees to accept or attempts to obtain for himself or any other person any gratification other 48 Spl.C.C.No.131/2011 than the legal remuneration is guilty of the offence. In this regard, the prosecution has relied upon the evidence of PW 4 Ramesh to claim there is a demand by accused No.1. As per Section 7 of the Act mere attempt to obtain illegal gratification amounts to an offence. PW 4 in his examination in chief has deposed that accused No.1 has demanded illegal gratification of Rs 10 lakhs for settling the compensation in between the rival claimants. During the cross examination of PW 4, it is specifically elicited that he is not remembering the date on which accused no.1 alleged to have demanded illegal gratification, or the place where he met the accused no.1. Except the testimony of PW 4, the prosecution has not placed any other evidence in support of aforesaid charge regarding illegal demand. After the aforesaid demand, PW 4 did not approach the concerned authority or has given intimation regarding the said illegal demand or any case was registered against the accused No.1 on the strength of statement of PW 4 for the alleged offence of demanding bribe. That any other prosecution witnesses have whispered regarding this fact and hence the prosecution has failed to prove the charge against accused no.1 for the offence punishable under section 7 of the Act.
71. Accused no.1 has been charged for the offence defined under section 13(1)(d) which is punishable under section 13(2) of The P.C Act, Section 13(1)(d) reads "A Public servant is said to commit the offence of criminal misconduct
a) If he by corrupt means or illegal, obtains for himself or for any other person any valuable thing or pecuniary advantage or 49 Spl.C.C.No.131/2011 abusing his position as a public servant is guilty of the offence. In the case on hand, if accused No.1, before releasing the amount, had proceeded to pass an order, how accused no.2 is entitled to claim compensation in preference to other rival claims, then absolutely there would be no occasion even to draw any inference of criminal misconduct. During the course of trial and in the arguments, the learned counsel for accused No.1 vehemently argued that the acquisition proceedings as per Ex P7 order sheet commenced in the year 2006 and accused no.1 has only released the compensation and order to issue cheque of award amount was passed by his predecessor in Office i.e., PW 15. For the aforesaid reasons, accused no.1 has submitted that there is no criminal liability on his part in releasing the compensation amount. The question arise for determination is 'whether the accused is entitled to take shelter under the aforesaid defence?. After accused No.1 took charge of Special Land Acquisition Officer the entries made in Ex P7 document reveals he was aware of the fact that there is discrepency regarding survey number title of accused No.2 and after coming to know these facts, he has directed accused no.2 to produce documents. As per Section 2(n) of Cr.P.C an act or omission is an offence. In the event without ascertainng or due to his negligence accused no.1 has issued cheque and disbursed the compensation, he could have avoided the charge of criminal misconduct. Before payment of compensation in favour of accused No.2, accused No.1 has not decided the beneficiary is legally entitled to claim the said compensation. The method adopted by accused No. 1 to release the compensation in favour 50 Spl.C.C.No.131/2011 of accused No.2 is illegal and thereby accused no.2 has received the pecuniary advantage. Whether accused no.1 for having disbursed the compensation has received pecuniary advantage from accused no.2 need not be proved by the prosecution. The conduct of accused No.1 shows by illegal means has been opted only for pecuniary advantage. The act of accused No.1 release of compensation is not illegal, but it is by illegal means and hence it is designated as criminal conspiracy punishable under section 120B of IPC..
72. The next limb of argument advanced is that the compensation paid in favour of accused no.2 is not a Government money and therefore there is no loss to the Government exchequer. In section 13(1)(d) of the P.C.Act, there is no ingredients required to establish that the Government money has to be disbursed. But in the case on hand, it is argued that beneficiary under the acquisition proceedings deposited the compensation amount and said amount has been disbursed in favour of accused no.2 is not a ground to escape the criminal liability by accused No.1. The evidence on record shows that accused no.1 as a public servant and Special Land Acquisition Officer abused his official position and illegal means obtained pecuniary advantage to accused No.2 and did criminal misconduct is made out. The explanation submitted by the accused no.1 when he was examined under section 313 of Cr.P.C and the contention taken in his written statement filed under section 243(1) of Cr.P.C is not acceptable. The attending circumstances and the evidence on record clearly reveal and 51 Spl.C.C.No.131/2011 corroborates the prosecution charge of criminal misconduct against accused no.1. The witness examined on behalf of the prosecution have with stood the test of cross examination and evidence inspires confidence in the mind of the Court to rely upon said evidence with regard to the guilt of the accused. .
73. It is ofcourse the duty of the Court to see that an innocent person is not convicted. But, it is equally the duty of the Court to see that the perpetrators of corruption are brought to book That on considering the totallity of the evidence and circumstances of this case, the prosecution has been able to establish on the basis of evidence on record guilt of accused no.1 regarding criminal conspiracy and criminal misconduct. The accused no.1 by violating the provisions of law has disbursed the compensation and the gravity of the offence for violation of law is higher than the violation of Rules. The act of accused No.1 is not a mere irregularity instead it is gross illegality.
74. The observation made in the course of this judgment regarding the title of property acquired in Sy.No.74(2) is only passing remarks to ascertain criminal charge against the accused no.1 and 2. It is the competent Civil Court to decide amongst accused no.2 and other rival claimants who is entitled to receive the compensation. In order to ascertain the criminal misconduct of accused Nos 1, it is necessary for this Court to give findings regarding prima facie title to ascertain whether the claim of accused no.2 is bonafide.
52 Spl.C.C.No.131/201175. The learned counsel appearng for the accused has relied upon the judgment referred supra in N.Vijayakumar case and as per the facts, accused has been convicted by the Hon'ble High Court of Madras for the offence under section 7 and 13(1)
(d) read with section 13(2) of P.C.Act. The trial Court giving the benefit of doubt acquitted the accused and Apex Court observed on a possible view holding another view is also possible is not a ground to interfere with the said judgment by the Hon'ble High Court. After observing this fact, there was absence of evidence regarding demand of illegal gratification, the presumption under section 20 would arise only after proof of demand and acceptance and the Hon'ble Apex Court came to the conclusion that the judgment of the trial Court is possible view and up held the judgment of the trial Court on allowing the appeal by setting aside the judgment of the Hon'ble High court. In the case on hand, the evidence on record clearly goes that the criminal conspiracy of accused nos 1 and 2, criminal misconduct of accused No.1. Accused No.1 has failed to make out there are two possible views and in such circumstances accused No.1 is entitled to take benefit which is infavour of him. The facts of the aforesaid judgment is not applicable to the case on hand.
76. The other judgment referrned in Kalyan Kumar Gogoi case relating to Representation of the People Act and the facts of the case and also and ratio laid down is not applicable to the case on hand. In the other judgment in P.Sathyanarayana Murthy's case referred supra, accused was working as Assistant Director, Commisionerate of Technical Education, Hyderabad 53 Spl.C.C.No.131/2011 and for effecting of renewal of typing institute he demanded bribe and in the process a trap was laid. As per the facts of the said judgment, the Court held that the prosecution has failed to prove the demand of illegal gratification. It is burden on the prosecution to prove by evidence beyond all reasonable doubt like any other criminal cases.
77. In another judgment in Christy Fried Gram Industry's case, the question before the Hon'ble High Court was whether the investigation and preliminary enquiry prior to registration of FIR is permissible in law? And if not, what is the effect? There was delay of 18 months before the registration of the FIR and in the above circumstances, the Hon'ble High Court allowed the petition filed under section 482 of Cr.P.C and the proceedings against the petitioners came to be quashed.
78. In another judgment in B.Jayaraj's case, as per the evidence of the complainant he disowned making the complaint and had stated in his deposition that the amount of Rs 250/- was paid by him to the accused with a request that the same may be deposited with the bank as fee for the renewal of his licence. Therefore, the Hon;ble High Court held as per section 7 of P.C.Act demand is not proved. The facts of the aforesaid judgment is not applicable to the case on hand. In the judgment of Ashok Kumar Aggarwal's case respondent/accused challenged the sanction order passed by the trial Court and the High Court set aside the order and C.B.I approached the Apex Court. As per the facts of the said judgment, Finance Minister has accorded sanction and the charge sheet filed by the CBI. The matter has 54 Spl.C.C.No.131/2011 been remanded to the trial Court to record finding on question of failure of justice in according sanction. As per para No.18 of the judgment, there is a reference CBI has not sent all the materials before the competent authority. In para 48, the Apex Court refused to interfere with the order of the Hon'ble Court.
79. In Kishan Chander's case, to prove demand and acceptance of bribe, there was no evidence and the complainant turned hostile on point of demand and acceptance of bribe and in the above circumstances, the accused came to be acquitted. In L.Shankaramurthyand other's case, the petition was filed under section 482 of Cr.P.C and it is contended, the allegations made in the FIR did not make out any ingredients of offence under section 8 and 13 of P.C.Act. In para 38 it is observed that there is no allegations of either demand of bribe amount or acceptance of the same and therefore the petition came to be quashed.
80. I have relied upon the judgment reported in (2007) 4 Supreme Court Cases 566 in Inspector Prem Chand /vs/ Government of NCT of Delhi and others. It is observed as under:
"9. Before adverting to the question involved in the matter, we may see what the term "misconduct"
means.
10. In State of Punjab V/s Ram Singh, Ex-constable it was stated: (SCC Pp 57-58, para 5) "5. Misconduct has been defined in Black's Law Dictationary, 6th Edn. At p.999 thus:
55 Spl.C.C.No.131/2011"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, impropoer or wrong behavior; its synonims are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
'Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office- holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P.Ramanatha Aiyar's Law Lexicon, 3 rd Edn., at p. 3027, the term judgment Misconduct is not necessarily the same thing as conduct involving moral tturpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct."
(See also Bharat Petroleum Corpn. Ltd. Vs/ T.K.Raju) An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India V. 56 Spl.C.C.No.131/2011 J.Ahmwed whereupon Mr.Sharan himself has placed reliance, this Court held so stating: (SCC p.p 292-93) para 11) "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in serice, it is misconduct (see Pearce Vs. Foster). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws Vs London Chronicle (Indicator Newspapers). This view was adopted in Sharadaprasad Onkarprasad Tiwari V/s Divisional Superintendent Central Railway., Nagpur Division, Nagpur and Satubha K.Vaghela V.Moosa Raza. The High Court has noted the definition of misconduct in Stroud's judicial Dictionary which runs as under:
Misconduct means, misconduct arising from ill motive; acts of negligence, erros of judgment, or innocent mistake, do not constitute such misconduct".
In 2017(8) Supreme Court Cases 757 (Neera Yadav V/s Central Bureau of Investigation), the accused was the then Chairman and Chief Executive Officer (CCEO) of NOIDA convicted for the offence punishable 57 Spl.C.C.No.131/2011 under section 13(2) and 13(1)(d) of P.C.Act. The NOIDA management was established in the year 1976 for developing integrated Industrial Township for industrial growth under the Uttarpradesh Industrial Area Develpment Act 1976. The project got marred by land allotment scams worth several crores of rupees, owing to abuse of position and power by the officials entrusted with the management and control of NOIDA itself. In this connection several complaints surfaced alleging irregularities in allotments and conversions of land in NOIDA.
Explanation was sought from Appellant Neera Yadav, the then Chairperson-cum-Chief Executive Officer (CCEO) of NOIDA.
81. The prosecution allegations to the effect that Ms.Neera Yadav in conspiracy with other officials complete abuse of power in the matter of allotments of land, out of turn allotments illegal conversions unwarranted changes in lay-out as per whims and fancy of accused and thus abused her position.
82. In para 17, A perusal of the above provision of Section 13(1)(d) makes it clear that if the elementts of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of "Criminal misconduct" under Section 13(1)(d). Undoubtedly all the three wings of clause (d) of section 13(1) are independent, alternative and disjunctive. Thus, under section 13(1)(d)(i) obtaining any valuable thing or pecuniary 58 Spl.C.C.No.131/2011 advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasons "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct as per section 13(1)(d)(ii) of P.C.Act.
83. The Hon'ble Court as per para 49 arrived to the conclusion "The prosecution has successfully proved that the appellant Neera Yadav abused her position as a public servant to benefit herself and her kith and kin. She not only made a mockery of the Rules and Regulations of Noida Authority, but also misused her position by completely neglecting her duties. Being a Chairman-cum-CEO of Noida, she was expected to ensure that the allotment of plots in Noida are effected in strict compliance with the Rules and Regulations of Noida Authority. However, the appellant herself bypassed the Rules and Regulations of NOIDA Authority by submitting antedated, half filled applications for seeking allotment of plots and by not paying the total amount payable in lieu of the allotment.
53.The appellant acted in a breach of Rules and Regulaties of Noida authorities causing financial loss. The fact that the appellant acted in fragment violation of Rules by giving complete gobye to the public interest to promote her individual interest, shows that she abused her position to gain undue advantage to herself and to cause loss to Noida.
84. In (2015) 15 Supreme Court Cases 569 in Chittaranjan Shetty V/s State by CBI, Bangalore, as per the facts of this 59 Spl.C.C.No.131/2011 judgment, appellant Senior Branch Manager was convicted for the offence under section 13(1)(d) of The Prevention of Corruption Act, 1988 and he was empowered with the discretionary power of granting loans including overdraft facilities. As per prosecution case, accused entered into a criminal conspiracy and infurtherance accused no.2 applied for credit facility and the appellant in his capacity as a Senior Branch Manager recommended overdraft facilities to accused no.2. The prosecution has alleged that, inpursuance of criminal conspiracy, the appellant permitted to accused no.2 to violate the terms and conditions imposed by the bank resulted in a loss of Rs 1,25,00,000/- to the bank. The Hon'ble Court observed that accused no.1 has permitted accused no.2 to exceed the limit of overdraft accounts and the appellant has misused the discretionary power vested in him in his capacity of Senior Bank Manager and had caused pecuniary loss to the bank. The conduct of the appellant if assessed in totality, indicated the existence of a dishonest intention on his part and fell within the defintation of "Criminal Misconduct" under section 13(1)(d)(ii) of the P.C.Act. The defence of the accused is that in the bonafide exercise of his discretionary power permitted the issuance of drafts and the same does not amount to criminal misconduct, rather, it is a case of minor irregularities has been rejected. The Apex Court referred the case in S.P.Bhatnagar V.s State of Maharashtra held "Where the importance of the element of dishonest intention was again reiterated.
60 Spl.C.C.No.131/201185. In para 24 the Court arrived to the conclusion that there is sufficient evidence to record that the appellant was acting with a dishonest intention abused his position knowingly and wilfully disregarded and acted in blatant disregard of the rules and regulations of the bank. That on applying the aforesaid ratio in the case on hand also accused No.1 with dishonest intention willfully disregarded the statutory provisions of KIAD Act and Land Acquisition Act and unilaterly proceeded to disburse the compensation of Rs 1,39,50,000/- in favour of accused no.2.
86. I have also referred (2009)8 Supreme Court Cases 617 in State of Madhya Pradesh V/s Sheetla Sahai and others;
37. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the The Prevention of Corruption Act, 1988 was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of the accused.
38. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder 61 Spl.C.C.No.131/2011 only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are: I) an agreement between two or more persons; ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or b) an act which is not illegal in itself but is done by illegal means.
39. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proviing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
40. In Kehar Singh V/s State (Delhi Admn) this Court has quoted (at SCC p.731) para 271) the following passage from Russell on Crime s(12th Edn.vo..1).
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough"62 Spl.C.C.No.131/2011
41. In State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], this Court stated the law, thus:
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
43. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra [(2008) 6 SCALE 469], this Court opined:
"23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an 63 Spl.C.C.No.131/2011 offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
Ex facie, there is no material to show that a conspiracy had been hatched by the respondents.
87. The accused is also charged by the prosecution for the offence punishable under section 192(A) of Karnataka Land Revenue Act. As per the aforesaid provision in the table there are following categories of offence such as ;
TABLE
Sl. No offence
1 Unlawfully enters or occupies on any Government land
with the intention of holding that Government land; provided that it shall not apply to cases of Jamma, Bane lands in Coorg District or encroached Government lands regularised or pending for regularisation before the Committee constituted under Sections 94-A, 94-B and 94-C of the Act.
2 Cheats and thereby dishonestly creates documents for the purpose of selling, mortgaging or transferring by gift or otherwise of any Government land.
3 Creates a forged document regarding Government lands with an intention to use it for that purpose or to grab such land.
4 Being a Revenue Officer entrusted with the responsibility of reporting unlawful occupation of Government land or unitiating action to remove such unauthorised occupiers fails to report or take action to remove such unlawful occupants;
64 Spl.C.C.No.131/2011Provided that it shall not apply to cases of Jamma, Bane lands in Coorg District or encroached Government lands regularised or pending for regularisation before the Committee constituted under Sections 94-A, 94-B and 94-C of the Act 5 Sells any agricultural land for non-agricultural purposes without getting such land converted or without obtaining prior approval of the Competent Authority.
Provided that it shall not apply to cases which are regularised by the Government by formulating a special scheme in this behalf.
6 Creates a forged document regarding conversion of agricultural land for non-agricultural use or authorisi9ng the holder of agricultural land to use for non-agricultural purpose.
7 Being a public servant entrusted with the responsibility of maintaining records or entrusted with the responsibility of reporting unlawful conversion to the Competent Authority fails to report to the Competent Authority or to initiate action against unlawful conversion of revenue lands for non agricultural purposes.
Provided that it shall not apply to cases which are regularised by the Government by formulating a special scheme in this behalf.
8 Contravenes any lawful order passed under this Act.
88. In the prosecution evidence it is not made out the acquired land in Sy.No.74/2 is a Government land. Moreover the prosecution has failed to show the vendor of accused no.2 was not having any absolute right, title and interest over the subject matter of the property and in this regard, the prosecution has not collected any materials. Therefore, the prosecution has failed to prove the charge against the accused for the offence punishable 192A of Karnataka Land Revenue Act.
65 Spl.C.C.No.131/201189. To sum up the entire evidence, documents and attending circumstances, prosecution has able to prove accused No.1 and 2 entered into a criminal conspiracy. Accused No.1 being a public servant by illegal means obtained pecuniary advantage for accused No.2 by releasing compensation of Rs.1,39,50,000/- and thereby exceeded his quasi judicial powers without deciding the rival claims of Smt.Muniyamma and Krishnappa. Therefore, accused No.1 is guilty of criminal misconduct as defined under section 13(1)(d) of P.C.Act.
90. The prosecution has failed to prove charge against No,1 by placing evidence in connection to Section 7 of P.C.Act, 420 of I.P.C and Section 192A of Karnataka Land Revenue Act. Similarly, prosecution has failed to prove charge against accused no.2 for the offence punishable under section 420 of IPC. Therefore, accused No.1 is liable to be convicted for the offence under section 13(1)(d) punishable under section 13(2) of P.C.Act and Section 120B of IPC. Similarly accused No.2 is liable to be convicted for the offence under section 120B of IPC. Accused No.1 deserves to be acquitted for the offence punishable under section 7 of P.C.Act and Section 420 of IPC and 192A of Karnataka Land Revene Act. Accused No.2 is liable to be acquitted for the offence under section 420 of IPC. Hence, I answer point No.2 and 5 in the Negative, point No.3 in the affirmative, point No.4 partly in the affirmative.
91. Point No 4: In the result, I proceed to pass the following:
66 Spl.C.C.No.131/2011ORDER Acting under section 248(2) of Cr.P.C accused No.1 is found guilty of the offence punishable under section 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988 and Section 120B of Indian Penal Code.
Accused No.2 is found guilty of the offence punishable under section 120B of I.P.C. Acting under section 248(1) Cr.P.C accused no.1 is acquitted for the offence punishable under section 420 of IPC and Section 7 of The Prevention of Corruption Act, 1988 and sections 192-A of Karnataka Land Revenue Act.
Accused No.2 is acquitted for the offence punishable under section 420 of IPC.
(Dictated to the Judgment Writer, transcribed and computerised by him, corrected, signed and then pronounced by me in open Court on this the 06th day of April, 2021) (Lakshminarayana Bhat.K ) XXIII Additional City Civil and Sessions Judge Special Judge, Bengaluru Urban District, Bengaluru 67 Spl.C.C.No.131/2011 ORDERS ON SENTENCE Heard Sri.C.G.Sundar, advocate appearing for accused No.1 and Sri.M.R.Nanjundagowda, advocate appearing for accused no.2 on quantum of sentence.
Accused No.1 is convicted for the offence punishable under section 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988 and section 120-B of Indian Penal Code. The said offence is punishable with imprisonment which may extend to 7 years and shall also liable to pay fine. The aforesaid provision mandates minimum sentence of one year. Section 120-B of IPC whoever is a party to a criminal conspiracy commit an offence punishable with death or imprisonment for life or rigorous imprisonment for a term of two years or upwards and where no express provision is made for the punishment of such conspiracy, be punished in the same manner as if he has abetted such offence. Accused No.2 is found guilty of the offence punishable under section 120-B of Indian Penal Code.
It is submitted that accused no.1 is aged about 71 years and he is a heart patient and he has not received any benefit in the aforesaid charges made against him by the prosecution. It is submitted on behalf of accused no.2 that he is presently working in BSNL. If he has been sentenced, his family members will be thrown to the street and he looses his job. For the aforesaid reasons, the learned advocate appearing for both the accused submit that minimum sentence may be imposed.68 Spl.C.C.No.131/2011
The Hon'ble Supreme Court in K.C.Saran V/s C.B.I. Chandighar AIR 2001 SC 3320 held that corruption by a public servant has now reached a monustrous dimensions and its tentacles have started grapping even in the institution created for protection of republic. Unless those tentacles are intercepted through strong legislative, Executive as well as Judicial exercises. Therefore, in the corruption cases, Court must take stringent view while awarding sentence.
At the same time, the Court has to consider mitigating factors which are in favour of the accused. That having considered the age of the accused No.1 71 years and presently a retired Government servant and also considering his health condition a balance has to be maintained between the minimum sentence and the maximum sentence prescribed in the provision. Punishment to be imposed is having four purpose, i) deterrent, ii) preventive iii) retributive iv) reformative and the ultimate object is to protect the society. The accused has to repend for the crime they have committed by self realisation. The purpose of reformation theory is hate the crime and not the criminal.
In the case on hand, the offences were committed in the year 2009 and as per section 16 of The Prevention of Corruption Act, 1988, where a sentence of fine is imposed under sub- section (2) of Section 13, the Court in fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence. In the case on hand, accused no.2 has 69 Spl.C.C.No.131/2011 illegally received the compensation of Rs 1,39,50,000/- is the subject matter of the offence. After considering the facts and circumstances and other mitigating factors, it is just and proper to sentence the accused no.1 with simple imprisonment for a period of 2 years and fine of Rs 2 lakhs and imprisonment for a period of 2 years and fine of Rs 10,000/- for the offence punishable under section 13(2) of P.C.Act and Section 120B of IPC respectively would meet the ends of justice.
Accused No.2 is also sentenced to undergo simple imprisonment for a period of 2 years and to pay fine of Rs 2 lakhs. Hence, I proceed to pass the following ORDER Accused No.1 K.B.Chikkabettaiah is sentenced to undergo simple imprisonment for a period of 2 (Two) years and also liable to pay fine of Rs 2,00,000/- (Rupees two lakhs) for the offence punishable under section 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988.
He has to undergo simple imprisonment for a period of 2 (Two) years and liable to pay fine of Rs 10,000/- (Rupees ten thousand) for the offence punishable under section 120-B of IPC.
In default of payment of fine of Rs 2,10,000/- (Rupees two lakhs and ten thousand) accused no.1 shall undergo simple imprisonment for a further period of 2 (two) months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of 2 (two) years and also liable to pay fine of Rs 2,00,000/- (Rupees two lakhs) for the offence punishable under section 120-B of Indian Penal Code. In default 70 Spl.C.C.No.131/2011 of payment of fine, he shall undergo simple imprisonment for a further period of 2(two) months.
The sentence of imprisonment against the accused No.1 shall run concurrently.
Office is directed to furnish certified copy of the judgment at free of cost to both the accused.
(Dictated to the Judgment Writer, transcribed and computerised by him, corrected, signed and then pronounced by me in open Court on this the 06th day of April, 2021) Sd/-06.04.2021 (Lakshminarayana Bhat.K ) XXIII Additional City Civil and Sessions Judge Special Judge, Bengaluru Urban District, Bengaluru ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Smt.Nagamma
PW.2 : K.C.Lakshminarayana
PW.3 : K.Ravishankar
PW.4 : Ramesh
PW.5: G.M.Basavaraju
PW 6 : S.S.Geetha
PW 7 : K.P.Mohanraj
PW 8 : Ranganath
PW 9 : Jayaramaiah
PW 10: Abdul Khayyum
PW 11 : B.K.Lokesh
PW 12: C.N.Ningaraju
71 Spl.C.C.No.131/2011
PW 13: Muniyappa
PW 14: Thimmareddy
PW 15 : Ramakrishna H.S
List of documents marked on behalf of prosecution:
Ex P 1 : Search mahazar of house No.589 dtd 22.9.2010 Ex P1(a) : Signature of PW 1 Ex P2 : Mahazar dated 29.09.2010 at KIADB office Ex P2(a) : Signature of PW 1 Ex P2(b) : Signature of PW 5 Ex P3 : Complaint in Crime no.44/2010 Ex P3(a) : Signature of PW 2 Ex P3(b) : Signature of PW 3 Ex P4 : Requisition letter of Ramesh Ex P4(a) : Signature of PW 3 Ex P5 : Covering letter of KIADB dtd 21.10.10 Ex P5(a) : Signature of PW 3 Ex P6 : Seizure Mahazar dtd 21.10.2010 Ex P6(a) : Signature of PW 3 Ex P6(b) : Signature of PW 5 Ex P7 : Seizure mahazar of documents from KIADB officer Ex P7(a) : Portion of para 11 72 Spl.C.C.No.131/2011 Ex P8 : Requisition letter addressed to Upparapet Police station dtd 16.12.2010 Ex P8(a) : Signature of PW 3 Ex P9 : Letter of Police Inspector Ex P10 : Attested copies of documents Ex P11 : Letter of Lokesh dtd 17.01.2011 Ex P11(a): Signature of PW 11 Ex P11(b) : Signature of PW 12 Ex P12: Copy of check list verification.
Ex P13: Letter from Tahasildar, North Taluk, Bengaluru Ex P14 : Letter of Special Land Acquisition officer dtd 5.2.2011 Ex P 15: Copy of letter dtd 24.2.2011 of KIADB Ex P16: Copy of land acquisition Rules & procedures Ex P17: Sanction order Ex P17(a): Signature of PW 7 Ex P18: Report dtd 25.2.2011 of Special Deputy Commissioner.
Ex P18(a) : Signature of PW 10 Ex P19 : Survey reported Ex P19(a) : Signature of PW 11 Ex P19(b) : Signature of PW 12 Ex P20 : Seizure mahazar Ex P 21: Copy of sale deed dtd 7.8.2006 73 Spl.C.C.No.131/2011 Ex P 22: sketch of Sy.No.74/1,2,3 Ex P22(a) Signature of PW 14 Ex P23 : Mahazar dated 1.7.2009 Ex P23(a) : Signature of PW 14 List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of accused: NIL List of documents marked on behalf of accused: Ex D1. Land Saguvali chit Sd/-06.04.2021 (Lakshminarayana Bhat.K ) XXIII Additional City Civil and Sessions Judge Special Judge, Bengaluru Urban District, Bengaluru 74 Spl.C.C.No.131/2011