Karnataka High Court
Sri L C Nagaraja vs The State Of Karnataka on 14 July, 2022
Author: K. Natarajan
Bench: K. Natarajan
THE HON'BLE MR.JUSTICE K. NATARAJAN
BETWEEN:
SRI. L.C. NAGARAJA, S/O LATE LINGAPPA,
AGED 54 YEARS,
R/AT JANAMUKHI HOUSE,
BH ROAD, NELAMANGALA
BANGALORE RURAL DISTRICT 572123.
.. PETITIONER
(BY SRI. A.S.PONANNA, SR. COUNSEL FOR SMT. LEELA P. DEVADIGA, ADV.)
AND:
THE STATE OF KARNATAKA,
BY ANTI CORRUPTION BUREAU (ACB) POLICE STATION,
NO.49, KANIJA BHAVAN, RACE COURSE ROAD,
BANGAORE 560 001
REP. BY SPECIAL PUBIC PROSECUTOR
HIGH COURT OF KANATAKA,
BANGALOORE 560 001.
.. RESPONDENT
(BY SRI. MANMOHAN P.N., ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE COMPLAINT DATED 15.11.2021 AND
FIR DATED 23.11.2021 IN CR.NO.58/2021 REGISTERED BY RESPONDENT
ACB P.S. PRODUCED AT ANNEXURE A AND B PENDING ON THE FILE OF
THE 23RD ACMM AT BENGALURU FOR THE OFFENCE PUNISHABLE UNDER
SECTION 13(1)(b) R/W 13(2) OF P.C. ACT AGAINST THE PETITIONER
HEREIN.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.06.2022 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THROUGH VIDEO CONFERENCE AT DHARWAD BENCH, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
This criminal petition is filed by the petitioner/accused under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for quashing the FIR dated 23.11.2021 in Crime No.58/2021 registered by the Anti Corruption Bureau (hereinafter referred to as the 'ACB', for short) against the petitioner for the offences punishable under Section 13(1)(b) read with Section 13(2) of Prevention of Corruption Act, 1988 pending on the file of the learned 23rd Additional City Civil and Sessions Judge, Bengaluru (wrongly mentioned by the petitioner's counsel as 23rd Additional Chief Metropolitan Magistrate, Bengaluru).
2. Heard the arguments of the learned senior counsel appearing for the counsel for the petitioner and the learned counsel for the respondent.
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3. The case of the prosecution is that, on the source information received by the Police Inspector of ACB alleging that the petitioner has acquired properties disproportionate to his known source of income and after preparing the report, submitted to the Superintendent of Police, ACB and registered a case against the petitioner. It is alleged that the petitioner is appointed as Senior Scale KAS Officer and is presently working as an Administrative Officer, Sakala Mission, Bengaluru. He was previously appointed as Food Inspector by the State Government and he was appointed as Assistant Controller of Department of Weights and Measures and while he was working as a Assistant controller in April 2006, he got appointed as Tahsildar and after probationary period, he was posted as Tahsildar of Gubbi taluk, Tumukuru district and in the year 2013 he was promoted to the post of Assistant Commissioner. In the year 2017 he was posted as Land Acquisition Officer of Upper Krishna Project. He has also served as the Deputy Director of Department of Mines and Geology. In the year 2017-18 he served as Special Land Acquisition Officer of BDA. In the year 2018-19 he served as the Assistant Commissioner of Bengaluru North and in the year 2020, he was posted as the Deputy Director of Department 4 of Health and National Health Mission. It is further alleged that the petitioner also holds moveable and immoveable properties including cash worth of Rs.10,42,86,500/- and his expenditure is Rs.93,00,000/- and his known source of income is approximately Rs.3,80,20,000/- and thereby he is in possession of disproportionate property worth Rs.7,55,66,500/- which amounts to 198.75% against the known source of income and thereby the ACB has registered a case for the aforesaid offence. The same is challenged by the petitioner before this Court.
4. Learned senior counsel has contended that none of the properties mentioned in the FIR stands in the name of the petitioner and those properties are belonging to the wife of the petitioner which were purchased out of her own income. She is an income tax assessee and the same were declared by the petitioner in confidential reports and further calculated the value of the properties at the present market value but not the value which was purchased and those properties were purchased prior to his appointment as Tahsildar and none of the properties are purchased by him during his service. Learned senior counsel for the petitioner 5 has contended that a site property measuring 30x40 situated at B.H. Road Nelamangala, has been purchased on 10.12.2001 for Rs.1,92,000/- and borrowed loan of Rs.15,00,000/- from the bank for construction of the house. The respondent in their source report have mentioned as Rs.90,00,000/- which cannot be looked into as it was purchased by him prior to becoming or appointing as Tahsildar. The wife of the petitioner entered into an agreement of sale with the purchaser on 12.02.2018 to sell the property and received sale consideration of Rs.92,00,000/-. He further contended that the site bearing No.2468 with house building situate at Sahakara Nagar, Bangalore has been purchased by his wife for a sum of Rs.53,00,000/- on 08.08.2011 out of her floriculture income. It is mortgaged for a sum of Rs.31,76,000/- on 04.11.2011 for the education expenditure of her daughter. She entered into an agreement of sale with one Nachiketh K.C. and received sum of Rs.1 crore. The respondent has ignored the fact that his wife has purchased the property with the house building and erroneously estimated the cost of building as Rs.23,00,000/-. The wife of the petitioner has rented the said house and receiving monthly rent of Rs.35,000/-. The reconveyance deed made by the 6 State Bank of Mysore and sale agreement dated 24.04.2018 are produced. He would further contend that in the year 2006, when he was in probationary period, the father-in-law of the petitioner has gifted three properties in Sy.No.25, 24/3 by way of sale dated 24.06.2006 and 20.05.2006 in favour of the wife of the petitioner, out of the money derived from the sale of his ancestral property as streedhan. These lands were used by the wife of the petitioner for agricultural, floriculture and Horticulture and her income from the said source is nearly Rs.80,00,000/- and she has declared same before the Department of Income Tax as well as before the appointing authority of the petitioner as required under law. He further contended that on 06.06.2006 wife of the petitioner pledged the property with the Union Trust Bank for a sum of Rs.30,00,000/- . Thereafter, re-pledged for a sum of Rs.90,00,000/- on 24.06.2006. The Income Tax returns for the year 2009-10, 2010- 11, 2019-20 were produced to establish the income from properties by the wife. The wife of the petitioner also purchased the property in Sy.No.40, Viranajipura village, Nelamangala, for Rs.12,00,000/- out of her savings and agricultural income. A Innova car has been purchased by the petitioner out of his salary savings in the year 7 2014 and has sold it in the year 2018. The learned senior counsel further contended that in the year 2016, the wife of the petitioner had purchased a land in Sy.No.28/1, 28/2 and 28/6 situated at Mallarabanavadi, Kasaba Hobli, Nelamangala for a sum of Rs.5,33,76,500/- through 3 sale deeds and constructed a factory building and the same is being utilized by the factories and his wife is being paid rent of Rs.27,74,815/- annually. She also received sum of Rs.1,38,75,000/- as interest from free deposit. He would further contend that Axis Bank conducted E-auction for sale of industrial property bearing Sy.No.237 and 239 situated at Bommasandra Industrial Area, Anekal taluk and the petitioner's wife had participated in the E-auction and she was the successful bidder and purchased the property for a sum of Rs.12,10,00,000/- by pledging the property situated at Doddaballapura Industrial Layout and obtained loan of Rs.10,00,00,000/- from Janatha Seva Co-operative Bank. For the purchase of the property bearing Sy.No.28/1, 28/2 and 28/6 situate at Mallarabanavadi, Kasaba Hobli, Nelamangala and construction of factory building in the said property, the petitioner's wife pledged the property situated at 8 Anekal for a sum of Rs.18,00,00,000/-. The same was not considered a income.
Learned Senior counsel further contended that Industrial property situated at Bashettihali village, Kasaba Hobli, Bommasandra has been purchased by petitioner's wife, sister and mother on 25.07.2011 out of the money derived from agricultural properties and mother and sister of the petitioner gifted their share in favour of the petitioner as they want to keep other properties which had come to the share of the petitioner situated at Nelamangala. All these properties have been mortgaged by the petitioner's wife for a sum of Rs.10,00,00,000/- for purchasing the property in Bommasandra, Anekal. Thereafter, the petitioner sold all the properties together through a sale deed dated 05.10.2020 for a sum of Rs.2,26,79,000/-. The petitioner's wife has pledged the property situated at Bommasandra for a sum of Rs.3,00,00,000/- to clear the hand loans before the Pavagada Souhardha Mulitpurpose Cooperative Limited. He would further contend that, on 13.06.2006, the wife of the petitioner sold the property in Sy.No.46 measuring 22 guntas of Hadalu village Kasaba 9 Hobli, Nelamangala, Bangalore Rural and out of that money she purchased another property bearing Sy.No.66/1, Lakkappanahalli, Nelamangala, Bangalore Rural District for a sum of Rs.5,00,000/- and thereafter she sold it for a sum of Rs.11,00,000/-. He further contended that the wife of the petitioner on 16.01.2020 sold the property at Bommasandra Industrial Layout and paid a sum of Rs.1,58,40,000/- to purchase the property in Sy.No.28/2 of Mallarabanavadi, Kasaba Hobli, Nelamangala and contended that the petitioner has declared all the assets mentioned in the source report before the Income Tax Department as well as the appointing authority. The said fact is not looked into by the respondent while registering the FIR and proceeded to register a case on the source report which is nothing but abuse of process of law but a futile exercise. The ACB has not estimated the amount that was derived from the sale of properties, mortgage and rents and has produced the details of his family properties and income. Learned counsel has also given the calculations in a chart. Hence, prayed for quashing the FIR. In support of his contentions, learned senior counsel relied on the following judgments:
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i. Interim order dated 1.4.2022 passed in Crl.P.No.2592/2022 passed by this Court.
ii. State of Maharashtra v. Wasudeo Ramachandra Kaidalkar reported in (1981) 3 SCC 199.
iii. M.Krishna Reddy v. State of Hyderabad reported in AIR 1993 SC 313.
iv. Krishnanand Agnihotri v. State of Madhya Pradesh reported in AIR 1977 SC 796.
v. Jasvinder Singh v. State of Delhi reported in LAWS (DLH) 2007-7-26.
5. Per contra, learned counsel for the respondent has filed statement of objections alleging that the petitioner joined the Government Service in the year 1988 and he became Tahsildar in the year 2006. The property purchased at B.H. Road Nelamangala shall be considered at the time of final report. Learned counsel further contended that the CBI has filed charge sheet against the petitioner under Sections 7, 7(A), 8 and 12 of PC Act for accepting illegal gratification of Rs.4.5 crores from IMA. Sanction granted for registering the FIR is produced. Therefore, there are serious allegations against the petitioner not only in this case but also in other cases. The respondent during investigation has collected information in respect of the properties purchased by him in the name of benami transactions and the same requires investigation. 11 The source of income to repay the loans and to pay towards chit funds has to be investigated. A sum of Rs.42,50,320/- was recovered from the house of the petitioner while conducting search. No explanation is given. The petitioner claimed income through agriculture to tune of Rs.4,48,04,480/- but there is no documents to substantiate the same. The profit and loss account of the wife of the petitioner for the year ending March 2020, her net income is shown as Rs.34,05,485/-. The petitioner claims he received Rs.33,09,26,000/- from mortgage/loan. In the income tax return of the wife of the petitioner, the secured loans has been shown to the tune of Rs.15,33,23,113/- and unsecured loan to the tune of Rs.8,08,23,750/-. All these aspects require investigation. The averments in paragraphs 5 to 17 of the petition seeking appreciation of the evidence is a matter of trial. Therefore, it cannot be considered at the stage of exercising power under Section 482 of Cr.P.C. The information received is, illegally acquiring properties, which is disproportionate to the known source of income. The disproportionate known source of income is found to be 198% of the known source of income. Therefore, the investigation is required to be done. Hence, prayed for dismissal of 12 the petition. In support of his case, the learned counsel has relied upon the following judgments which are as under:
i. M/s Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and Ors. reported in AIR 2021 Supreme Court 1918;
ii. Central Bureau of Investigation (CBI) and another v. Thommandru Hanah Vijayalakshmi alias T.H. Vijayalakshmi and another reported in 2021 SCC Online 923; and iii. Unreported judgment of this Court in Crl.P.No.6343/2021 between Sri. Dr.S. Siddaiah and The State of Karnataka and another.
6. Having heard the arguments of the learned counsel perused the records.
7. Before considering the arguments addressed by the both the learned counsel, the principles laid down by the Hon'ble Supreme Court in various case while exercising power under Section 482 of Cr.P.C. has to be considered.
8. Learned counsel for the respondent has relied on the judgment of the Hon'ble Supreme Court in Neeharika's case (supra) wherein at paragraph 23, the Hon'ble Supreme Court has held as under:
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i. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii. Courts would not thwart any investigation into the cognizable offences;
iii. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv. The power of quashing should be exercised sparingly with circumspection, as it has been observed in the 'rarest of rare cases' (not to be confused with the formation in the context of death penalty).
v. While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi. Criminal proceedings ought not to be scuttled at the initial stage;
vii. Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii. Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;14
ix. The functions of the judiciary and the police are complementary, not overlapping;
x. Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii. The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii. The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be 15 cautious. It casts an onerous and more diligent duty on the court;
xiv. However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv. When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose the commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi. The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such in interim order should not be required to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and 16 the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii. Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out or grant of interim stay of further investigation, after considering the board parameters while exercising the powers under section 482 Cr.p.C. and/or under Articles 226 of the Constituting of India referred to hereinabove, the High court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii.Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no 17 coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
Learned counsel relied on the unreported judgment of this Court in Dr.S. Siddaiah's case (supra) in respect of the guidelines issued by this Hon'ble Supreme Court and followed by this Court while considering the quashing of FIR. Learned counsel further relied on the judgment of the Hon'ble Supreme Court in the case of Central Bureau of Investigation and another v. Thommandru's case (supra) wherein the Supreme Court relying upon the judgment of Neeharika's case (supra) has laid down the principles while exercising power under Section 482 of Cr.P.C. and set aside the judgment of the Telangana High Court after two years of investigation collecting 140 witnesses and 500 documents and allowed the police to continue to investigate the matter.
9. Per contra, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Wasudeo Ramachandra Kaidalwar's case (supra) wherein the Hon'ble Supreme Court has acquitted the accused by extending the benefit of doubt with respect to PC Act. In 18 M.Krishna Reddy's case (supra) the Hon'ble Supreme Court has taken a similar view and acquitted the accused. In Krishnanand Agnihotri's case (supra), the Hon'ble Supreme Court ha held that suspicion, however, strong cannot take the place of proof, as onus of establishing the transaction as benami is on the person who asserts it. This burden has to be discharged by adducing legal evidence of a definite character. In Jasvinder Singh's case (Supra), High Court of Delhi has taken a similar view with respect to disproportionate assets and acquitted the accused.
10. Keeping the principles laid down by the Hon'ble Supreme Court in the aforesaid cases, now looking to the case of the prosecution, the petitioner stated to be appointed as Food Inspector in the year 1988. Later he was appointed as Assistant Controller of Department of Weights and Measures. Thereafter, he was appointed as Tahsildar in the year 2006 after taking the KAS examination with a condition that his probationary period was two years, he was posted to Gubbi taluk, Tumukuru as Tahsildar. In the year 2013, he was promoted as Assistant Commissioner and in the year 2017 he was posted as Land Acquisition Officer of Upper 19 Krishna Project. He has also served as Deputy Director of Department of Mines and Geology. Then in the year 2017-18, he served as Land Acquisition Officer of BDA and in the year 2018-19, he served as the Assistant Commissioner of Bangalore North and in the year 2020, he was posted as the Deputy Director of Department of Health and National Health Mission. The said fact is not in dispute.
11. Now coming to the allegations against the petitioner by the prosecution is that, they have received source information that the petitioner is stated to be holding the assets disproportionate to his known source of income and it is shown as the assets and the total assets of the petitioner including his family members is Rs.10,42,86,500/-. During his service, he has spent Rs.93,00,000/-. Both the amounts together sum up to Rs.11,35,86,500/- and his known source of income shown is Rs.3,80,20,000/- and thereby he made income with unknown source to the tune of Rs.7,55,66,500/- which amounts to 198.75% more than his known source of income. Based upon the source 20 report, the ACB registered the case against the petitioner which is under challenge.
12. Learned senior counsel for the petitioner has contended that though the petitioner was appointed in the year 1988 as a Food Inspector and till 2006 he has worked in various department and he has declared his Assets and Liabilities to the appointing authority. Subsequently, he took KAS examination and he was selected and appointed as Tahsildar on probationary period of two years and later was posted as Tahsildar of Gubbi taluk, Tumukuru district. Later he was promoted as Assistant Commissioner of Bangalore North in the year 2020. The learned senior counsel submits that the petitioner's wife has purchased a site measuring 30 x 40 feet in the year 2001 i.e on 10.12.2001 and also borrowed loan of Rs.15,00,000/- for the purpose of construction of house by mortgaging the property with Baroda Bank, Yeshwanthpur, in the year 2004. Learned senior counsel contended that the respondent- police valued the property at Rs.90,00,00/- and the said property has been purchased by the wife of the petitioner prior to the petitioner being appointed as Tahsildar. The value of the property 21 shown by the respondent in the complaint as per the source report is Rs.90,00,000/-. The sale deed is produced by the petitioner's counsel which is available at Annexure-C which reveals the said property was purchased on 10.12.2001 for sale consideration of Rs.1,25,000/-. The sale deed is a public document and it was purchased in the year 2001 but the respondent has calculated the value of the property as on for the year 2021 i.e. after 21 years of the purchase of the property, that too, shown as present market value of the property as Rs.90,00,000/-. Definitely the site which was purchased in the year 2001 for Rs.1,00,000/- or 10,00,000/-, after 20 years, the value of the property definitely would get escalated in Bengaluru city more than 10 -20 times than the actual value purchased in the year 2001. That apart, the petitioner's counsel also stated the wife of the petitioner borrowed loan from Bank of Baroda and constructed a house in the year 2004. Definitely, after construction, the buiding value will be little more but taking the value at present market value in the year 2021 as Rs.90,00,000/- is prima facie a wrong calculation and exorbitant market value shown by the respondent. The respondent must have considered the value of the said property as Rs.1,92,000 + 22 Rs.15,00,000/-(for construction) but the same shown at Rs.90,00,000/- is not correct which prima facie shows the amount calculated on the present market value is wrong. That apart, the said property had been purchased by the wife of the petitioner prior to he becoming Tahsildar and same was constructed prior to 2006 when he was appointed as Tahsildar. Such being the case, considering the said house property as that of the petitioner is basically wrong. Therefore, the question of allowing the respondent- police to investigate into the matter is not required on this document.
13. The next contention of the learned senior counsel is that it is pertinent to note the said property has been agreed to sell to 3rd person by the wife of the petitioner on 12.02.2018. She has received sale consideration of Rs.92,00,000/- which clearly depicts the market value of the said property in the year 2018 was Rs.92,00,000/-. Such being the case, mentioning the said property belongs to the petitioner and market value as Rs.90,00,000/- is not correct. Therefore, the contention of the respondent's counsel that the matter requires for investigation of this property is not correct. 23 That apart, Rs.92,00,000/- received by the wife of the petitioner was not shown as income belongs to the wife of the petitioner. Therefore, prima facie the calculation made by the respondent calculating Rs.90,00,000/- as assets of the petitioner and after sale, receipt of said Rs.92,00,000/- not calculating as income of the wife is prima facie mistake on the part of the Investigating Officer for registering the case. Therefore on this ground, the respondent is not required to investigate the matter on this document.
14. Another contention raised by the Senior counsel on the ground that the site No.2468 with house building situated at Sahakaranagar has been purchased by his wife for Rs.53,00,000/- and she has pledged the property to one Nachiketh K.C. for educational loan of Rs.31,76,000/- which is available in Ex.D-1 and Ex.D-2 reveals for the year 2016 i.e., on 24.04.2019 she has agreed to sell the said property to one Nachiket for Rs.1,40,00,000/- and received Rs.1,00,00,000/- as advance for consideration by way of cheque. But this fact has been totally ignored by the respondent police and considered the value of the building as only Rs.23,00,000/-. The receipt of Rs.1,00,00,000/- by 24 her through the agreement to sell in the year 2018 was not considered as her income or income of the petitioner. Therefore, police have calculated the said income of the wife as of the petitioner but the said property belongs to the wife of the petitioner and not that of the petitioner. Therefore, considering the said property as his property even though the property belongs to his wife, which was already sold by her and taking the said property as that of the petitioner, is not correct.
15. Some other properties have been in the name of his wife in respect of SyNo.28/1 measuring 2 acres 01.08 gunta, in Sy.No.28/2 measuring 2 acres 7½ guntas and in Sy.No.28/6 measuring 2 acres 7.12 guntas were shown as assets of the wife of the petitioner. Another 35 guntas in Sy.No.40, Sy.No.25 measuring 1 acre 36 gunta, Sy.No.24/3 measuring 1 acre 36 guntas, Sy.No.24/3 measuring 1 acre 24 guntas were the properties of the wife of the petitioner which shown as the assets of the petitioner. But the ACB have shown the value of all those properties as Rs.1,50,00,000/-, Rs.1,60,00,000/-, Rs.2,23,76500/- and Rs.1,20,00,000/-(with respect to Sy.Nos.28/1, 28/2 and 28/6) 25 which reveals the said properties were valued by the ACB at the present market value but not the value as on the date of its purchase..
16. Learned Senior counsel for the petitioner also brought to the notice of this Court that the land in Sy.No.24/3 measuring 1 acre 36 guntas and the remaining property in Sy.No.24/3 measuring 1 acre 24 guntas by another sale deed has been purchased by the wife of the petitioner on 24.06.2006 from one Nanjappa and the value of the properties is shown as Rs.1,50,000/- and Rs.4,50,000/- respectively. One more property was purchased on 20th May 2006 by the wife of the petitioner in respect of in Sy.No.25 measuring 1 acre 36 guntas for Rs.7,10,000/-. It is pertinent to note that the properties were purchased in the year 2005-06 and it cannot be valued at the present market value as on, for the year 2022 which reveals the ACB have shown exorbitant and present market value that too which belongs to the petitioner even though the same has been purchased by the wife of the petitioner and it is also admitted fact that the petitioner was appointed as Tahsildar only in the year 2006. Therefore, those properties cannot 26 be considered as the property of the petitioner which were purchased prior to his entry into service as a public servant as Tahsildar. That apart, the wife of the petitioner is an income tax assessee. She has paid the income tax and the income tax assessment for the year 2009-10 with respect to the agricultural income, purchase of the properties by borrowing loans, everything has been disclosed by her and now she is no more and died after registering the case.
17. The learned senior counsel also contended that the wife of the petitioner is doing sericulture business and she used to purchase the property and sell the same for more than the value and again used to purchase other properties out of her own income and in her individual capacity. Therefore, those properties cannot be considered as income of the petitioner or assets of the petitioner. Annexure-G also reveals, she had borrowed loan from Axis Bank and after repayment, she has got registered the reconveyace deed executed by Axis bank in her favour. In the said reconveyance deed she has mortgaged properties bearing Sy.No.24/3 (5 separate property) each measuring 24 guntas, 27 Sy.No.25 measuring 1 acre 36 guntas and site in Sy.No.43 measuring 1200sq.ft. were mortgaged by her. Subsequently, she also purchased property on 05.11.2016 in Sy.No.28/1 and Sy.No.28/2 on 07.09.2018 at Mallarabanavadi, Kasaba Hobli, Bangalore Rural district.
18. Learned senior counsel also submitted and brought to the notice of this Court that, the petitioner had income from the salary approximately Rs.90,00,000/- during 2006-2021 but the ACB police calculated the salary only as Rs.70,00,000/-. It is also revealed from the records that they calculated only Rs.70,00,000/- and not Rs.90,00,000/-. The wife of the petitioner borrowed loan and received rent in the year 2004 and the same was not calculated as income of the petitioner. A site was purchased in Sahakaranagar for Rs.31,76,000/- but the police calculated assessed the property as Rs.3,00,00,000/-. The property purchased with factory building at Mallarabanavadi village by the wife of the petitioner is for Rs.18,00,00,000/-. The same was not considered and it was purchased out of the income from those properties. Those incomes 28 were not considered by the ACB police which is also revealed from the compliant.
19. Likewise, the income from the rent with respect to site with building No.2468 at Sahakaranagar is Rs.28,77,625/-, the same was not considered as income by the ACB. Likewise, the income from the factory building rent(yearly) at Mallarabanawadi village is Rs.27,74,815/- that is also not considered as income. From the properties bearing Sy.Nos.28/1, 28/2 and 28/6, the wife of the petitioner is receiving interest free deposit of Rs.1,38,75,000/- but the ACB have valued at Rs.2,00,00,000/-. Totally, the wife of the petitioner received Rs.1,95,27,440/- out of the rental income. But the AVB valued at Rs.2,74,00,000/-. This miscalculation prima facie reveals the source report itself is not correct. That apart, the purchase of the property was Rs.10,79,78,500/- but the ACB have calculated as Rs.1,04,386,500/- and the difference amount is Rs.35,92,000/- which is made less calculation.
20. It is also brought to the notice of the court that, just on perusal of the records, it reveals, the income received from the 29 agricultural income was Rs.4,48,04,080/- but the ACB have not at all considered even a single rupee from the agricultural income of either income of the petitioner or his wife.
21. That apart, the income by sale of property at Lakkappanahalli, Nelamangala Taluk has been purchased in the year 2011 and rent received is Rs.11,00,000/- till filing of the FIR. The same was not considered as income. The property bearing Sy.No.24/2 was sold in the year 2011 and rent was received for Rs.3,00,000/- till filing of FIR. But the rent from industrial properties at Dodddballapur was Rs.2,26,79,000/- and property at Bommasandra, Anekal, was Rs.14,61,16,703/- were totally ignored and are not considered as income of the wife of the petitioner. Likewise, under the agreement of sale in property building 2468 at Sahakaranagar, she received Rs.1,00,00,000/- as advance sale consideration. That was not considered at all. With respect to a house at Janamukhi, Nelamangala, a sum of Rs.92,00,000/- was received under the sale agreement, even, that was not considered. Even though wife of the petitioner received rental income from the 30 landed properties was Rs.18,93,95,703/- but the ACB have considered only Rs.3,00,000/-.
22. Learned senior counsel also contended that the total income of the petitioner was Rs.59,36,53,223/- but the ACB calculated the income at Rs.10,72,00,000/- which reveals all are miscalculations and the same was prima facie wrong.
23. Learned counsel for the respondent contended that the matter requires to be investigated by the police and after investigation, the police will file 'B' final report i.e., the source report is not correct. But the contention of the respondent's counsel cannot be acceptable for the reason that as per the judgment of the Hon'ble Supreme Court in Neeharika's case, the Court cannot investigate the matter, it is the power of the police officer to investigate the matter and the Court has to quash the FIR only in the rarest of rare case, which is a settled principle. But the calculation made by the police clearly reveals it is one sided and not properly considered the sale deeds before registering the case. It appears, the accused/petitioner is stated to be arrested by the police in a case registered in IMA case where he has been 31 appointed as an inquiry officer, he stated to have given report in favour of the those accused and he is stated to have obtained bribe of Rs.4.5crores and subsequently, he has been charge sheeted by the CBI under the provisions of PC Act. But it is not the case that the petitioner has purchased these properties out of the bribe amount obtained from the IMA case.
24. Learned senior counsel submits that, after filing of the charge sheet in the said IMA case, the ACB purposely registered a case against the petitioner to harass him even though there is no recovery of bribe amount in the said case in order to show prima facie case that he has obtained any bribe. Of course the said case is not before this Court for consideration. However, it is admitted by the respondent's counsel that, there is no recovery of Rs.4.5 crore from the petitioner which is alleged to have been given as bribe to the petitioner in IMA case. It is also brought to the notice of this Court that, after granting interim order in this case by this Court as against the ACB for investigating matter, the ACB police registered one more case against the petitioner in Crime No.11/2022 registered on 16.02.2022 and the petitioner 32 approached the co-ordinate Bench of this Court under Section 482 of Cr.P.C. where the Co-ordinate Bench has stayed the further investigation in the said case wherein it was observed that, the petitioner is stated to have demanded bribe in the year 2012 for passing orders on 17.09.2012. After 10 years without any basis, the ACB registers a case against the petitioner which reveals the ACB police are taking revenge against the petitioner and one or the other ground, they are implicating the accused in one after the other case. The said FIR No.11/2022 is produced as Ex.R-5 which reveals that, the petitioner is stated to have appointed as Assistant Commissioner in the year 2012-13, he has demanded Rs.6,00,000/- and received Rs.2,00,000/- from one Ramesh and the compliant came to be registered after 10 years on 16.02.2022 that too after this Court stayed the investigation of this case on 14.02.2022. It is well settled by the Hon'ble Supreme Court in the Lalitha Kumari's case (supra) that, before registering the FIR, the police required to make preliminary enquiry to verify whether any prima facie case is made out for registering the FIR against that persons for taking cognizance of the offence for investigation. But here in this case, the source report calculated by the police itself 33 clearly depicts the amount mentioned by the ACB in the FIR is shown as exorbitant amount and is on the present market value even though that were purchased in the year 2001 and prior to he becoming Tahsildar in the year 2006 and though he was appointed as public servant in the year 1988 as Food Inspector but continuously this petitioner declared his assets and liability to the Government and the same is accepted every year. Likewise, the income of the wife of the petitioner is declared and the same is also declared by her in her income tax returns. Such being the case, purposely, the ACB police registered the case against the petitioner only to harass him. Absolutely, there is no property purchased by him in his name. But his wife has purchased the properties and by selling the said properties, she purchased some other properties out of the income derived from agriculture, sericulture business. All these incomes were considered as income of the petitioner which is not correct. It is not the case where the ACB raided the house of the accused/petitioner and collected those documents but registered the case only on source report.
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25. That apart, learned senior counsel contended that after registering the FIR, the wife of the petitioner was depressed after registering the case and she died. This aspect is not disputed by the respondent. The very shock for the wife of the petitioner is that, she had purchased the properties out of her income, she has developed the properties and received income and all the properties belongs to her and some were given as streedhan and this was not considered by the police and registering the case against her husband, definitely, there is possibility of going to depression and that lead to her death.
26. Even on perusal of the records, this case is unfit for investigation by the police and the entire source report is manipulated by giving exorbitant value of the property even though they were purchased 18-20 years back and income of those properties was not considered and thereby they came to the wrong calculation and wrong impression. The fact that the petitioner has amassed property of 198% more than his known source of income is totally wrong and no basis for that. The Court will not interfere in the investigation of the police if they are investigating the matter 35 and have produced prima facie material to show these properties were purchased by the accused either in his name or family members out of the bribe amount. But in this case, FIR is registered against the accused one after another when the accused comes out on bail or if investigation is stayed by this Court, which clearly shows vindictive attitude towards the petitioner. Merely he is involved in one case, that does not mean that, he is presumed to be involved in the present case also. Of course after the death of his wife, the entire property might have devolve on him and his children by way as they are legal heirs but those properties cannot be considered as his income or presumed to be unknown source of income or illegal gratification and any of the ingredients shown in the FIR for investigating the matter as cognizable offence as held by the Hon'ble Supreme Court in Central Bureau of Investigation and another v. Thommandru's case (supra).
27. On overall verifying the allegations made against the petitioner in respect of the properties mentioned in the FIR, absolutely do not belong to the petitioner and those properties are purchased by the wife of the petitioner even prior to the petitioner 36 entering into service. She has come from a well to do family and having streedhan properties. She had sold some properties and out of the sale proceeds, she has purchased some other properties one after the other. She has developed those properties, let out to the tenants both to the factories as well as to other tenants and she was receiving income, same was declared and also paid income tax. None of the properties stand in the name of the petitioner. Such being the case, it is not a fit case for allowing the ACB police to investigate the matter and even the learned counsel for the respondent stated, they will file 'B' final report. When there is no cognizable offence made out against the petitioner, the question of investigating the matter does not arise and as per the guidelines of the Hon'ble Supreme Court, this case squarely falls under the category of "rarest of rare case". Therefore, the question of permitting the ACB police for further investigation/filing 'B' final report is not required in the case on hand. Therefore, the petition deserves to be allowed.
Accordingly, the criminal petition is allowed. 37 FIR in Crime No.58/2021 registered by the Anti Corruption Bureau, Bengaluru for the offence punishable under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act pending on the file of the learned 23rd Additional City Civil and Sessions Judge, Bengaluru, is hereby quashed.
Sd/-
JUDGE kmv