Karnataka High Court
Sri R Venkatesh Padaki vs State Of Karnataka on 8 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.3150/2015
c/w
CRIMINAL PETITION No.4722/2015
Crl.P No.3150/2015
BETWEEN
Sri R Venkatesh Padaki
S/o late Sri Ramachandra Padaki,
Aged about 57 years
Presently working as
Deputy Commissioner of Excise
Resident of the premises bearing
No.CH-5, 2nd Main, Saraswathipuram
Mysore - 570 009. ...Petitioner
(By Sri C V Srinivasa, Advocate (absent))
AND
State of Karnataka
by the Lokayuktha Police
Chikkamagalur-577 101. ...Respondent
(By Sri B S Prasad, Advocate)
This Crl.P is filed U/s. 482 Cr.P.C praying to
quash the FIR in CR No.7/2014 registered by the
Lokayuktha Police, Chikkamagalur, which FIR is
submitted to the Court of the Principal District and
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Sessions Judge, Chikkamagalur for offences which are
made penal under Sections 7 and 13(2) of Prevention of
Corruption Act for the alleged violation of the provisions
of Section 13(1)(d) of the said Act as against the
petitioner and all further proceedings that are recorded
in the case by the respondent - Lokayuktha Police.
Crl.P No.4722/2015
BETWEEN
Sri R Venkatesh Padaki
S/o late Sri Ramachandra Padaki,
Aged about 57 years
Presently working as
Deputy Commissioner of Excise
Resident of the premises bearing
No.CH-5, 2nd Main, Saraswathipuram
Mysore - 570 005. .. Petitioner
(By Sri C V Nagesh, Sr.Advocate a/w Sri Raghavendra K,
Advocate)
AND
State of Karnataka
by the Lokayuktha Police
Chikkamagalur-577 101. .. Respondent
(By Sri B S Prasad, Advocate)
This Crl.P is filed U/s. 482 Cr.P.C praying to set
aside the order dated 8.6.2015 passed in Spl.CC
No.27/2015 presumably for an offence which is made
penal under Sections 7 and 13(1)(d) read with Section
13(2) of the PC Act and further to quash the proceedings
that are recorded in the case pending on the file of the
District and Sessions Judge, Chikkamagalur.
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These Criminal Petitions coming on for final
hearing this day, the court made the following:
ORDER
Since these two petitions are in respect of same crime number registered in Crime No. CR No.7/2014 registered by the Lokayuktha Police, Chikkamagalur, and common questions of law and facts are involved in these two petitions, they are taken up together to dispose of them by this common order.
2. The first petition is filed under Section 482 of Cr.PC praying this Court to quash the FIR in CR No.7/2014 registered by the Lokayuktha Police, Chikkamagalur, which FIR is submitted to the Court of the Principal District and Sessions Judge, Chikkamagalur for the offences punishable under Sections 7 and 13(2) of Prevention of Corruption Act for the alleged violation of the provisions of Section 13(1)(d) of the said Act as against the petitioner and all further 4 proceedings that are recorded in the case by the respondent - Lokayuktha Police.
3. The second petition is filed under Section 482 of Cr.PC praying this Court to set aside the order dated 8.6.2015 passed in Spl.CC No.27/2015 presumably for an offence which is made penal under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and further to quash the proceedings that are recorded in the case pending on the file of the District and Sessions Judge, Chikkamagalur, in the ends of justice.
4. Brief facts as per the respondent - Police Inspector, Lokayuktha, Chikkamagalur are that he submitted the requisition before the Principal District and Sessions Judge, Chikkamagalur, stating that the petitioner, Sri R Venkatesh Padaki, Deputy Commissioner of Excise in connection with granting license to the liquor shops and for renewal of the same 5 and also for the letter correspondences, apart from the amount that was fixed, he fixed the bribe amount in connection with the said work and collected the same from the owners of all the shops through middlemen of that Taluk and is giving the same to the Excise Commissioner, otherwise under the permission of Commissioner, the Excise Guard, Manjegowda @ Manjanna is collecting the said amount. The petitioner, Sri Venkatesh Padaki, is carrying the said amount and going to his house at Saraswathipuram, Mysuru once in a week and he was taking the amount collected by Manjegowda and going to the village or otherwise the said Manjegowda to be sent the said amount and some time he is carrying the said amount by Commissioner's vehicle. Like this, the Excise Commissioner and Excise Guard, Manjegowda collected the amount from the owners of the liquor shops and they were also collecting from the middlemen and they were sharing the same with the Excise Commissioner and the complainant got 6 the information from the informant on 4.9.2014 at 13.30 hours and registered the case by the Lokayuktha Police in Crime No.7/2014 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act.
5. On the basis of the said complaint, FIR came to be registered under the said offences. It is the contention of the petitioner herein that he challenged the registration of FIR by filing Crl.P No.3150/2015 and when the proceedings are stayed by this Court, in spite of that, the Investigating Officer proceeded with the investigation and filed the chargesheet. Therefore, the petitioner filed another connected Crl.P No.4722/2015 challenging the materials collected and also sought for quashing of the said entire materials.
6. Heard the arguments of the learned Senior Counsel for the petitioner in respect of both the 7 petitions and also heard the learned Special PP for the respondent in respect of both the petitions.
7. Learned Senior Counsel made the submission that though the FIR came to be registered for the said offences, but there is no materials even in the complaint and the FIR to show that the petitioner committed the said offences. Learned Senior counsel also made the submission that even after the alleged investigation said to be completed, the materials were collected. Perusing the entire materials, there is no material collected during investigation to show that the petitioner committed the alleged offences.
8. Learned Senior counsel also made the submission that the learned Special Judge before issuing the process, on the basis of the materials submitted before him has not at all taken the cognizance in the matter. In this connection, learned Senior counsel drew the attention of this Court to the 8 order dated 8.6.2015 passed by the Principal and District Sessions Judge, Chikkamagaluru and made the submission that the said order does not show that earlier cognizance was taken before passing this order. He made the submission that as per Section 190 of Cr.PC taking cognizance is must before passing the order dated 8.6.2015. Even with regard to the order dated 8.6.2015, it is the submission made by the learned Senior counsel that there is no mental application to the materials and learned Special Judge has not at all gave the reasons by passing such an order that there is sufficient material to proceed in the case. Hence, on this ground, learned Senior counsel challenged the legality of the order dated 8.6.2015. Sofar as the materials said to have been collected is concerned, the learned Senior counsel drew the attention of this Court to the offences punishable under Section 7 and also under Section 13(1)(d) of the PC Act and made the submission that there is no demand and 9 acceptance of the alleged bribe amount from anybody. He made the submission that the case of the prosecution as per the complaint averments itself that when the petitioner was proceeding in his car at that time, he was caught by the Lokayuktha Police and they have asked about money, which was carried by the petitioner and he submitted that he will give his explanation through his Advocate in the Court itself.
9. Learned Senior counsel made the submission that even for the sake of appreciation, it is accepted that the petitioner was carrying the money, unless and until it shows that it is obtained from another person as a bribe amount or illegal gratification to do any official favour to the person, who is giving that money, there is no question of the petitioner committing the said offences. In this regard, learned Senior counsel drew the attention of this Court to the chargesheet materials said to have been collected by the prosecution 10 during the investigation. He made the submission that out of the witnesses, who said to have been given the statement before the Investigating Officer, the material witnesses are at Sl.No.20, Sri G B Manjunath to Sl.No.25, Sri Santhosh B. He drew the attention of this Court to the statement of these witnesses and made the submission that none of the witnesses have stated that anybody given the amount as bribe to the accused person for doing any official favour by the accused. Hence, learned Senior Counsel made the submission that the materials stated to have been collected will not make out a prima facie case as against the petitioner herein and the registration of FIR and filing of chargesheet in the matter are nothing but abuse of process of Court and there is no prima facie material. Hence, the question of proceeding as against the petitioner accused does not arise at all. Therefore, he submitted to allow the petitions and quash the criminal proceedings initiated against the petitioner herein. 11
10. In support of his submission, learned Senior counsel relied upon the following decisions:
1) (2009) 3 SCC (Cri) 85 (A Subair -vs- State of Kerala)
2) 2015 AIR SCW 642 (Sunil Bharti Mittal -vs-
Central Bureau of Investigation)
3) Order dated 2.2.2017 rendered in Crl.P No.100969/2016 (Mallikarjuna and others -vs- State of Karnataka and another.
4) 2013 (3) Supreme 151 (M/s.GHCL Employees Stock Option Trust -vs- M/s.India Infoline Limited)
11. Per contra, learned Special PP appearing for the respondent - Lokyuktha Police made the submission that even though the materials will not make out a case that any person gave bribe amount of Rs.6,85,000/-, it is to be treated as a consent bribe. He made the submission that nobody will come forward to say that they have given the bribe amount to the accused person. He also made the submission that looking to the wordings in Section 7 of the PC Act, there 12 is no word regarding the demand for bribe amount. It is only acceptance of bribe amount as stated in the said Section. Learned Special PP further made the submission that the seizure panchanama goes to show that when the petitioner herein was traveling in his vehicle, he was intercepted by the Lokayuktha Police and when personal search was conducted, he was found an amount of Rs.6,85,000/- in different bundles. He also made the submission that when the Lokayuktha Authority asked him about the said amount, he has not given proper answer. He also made the submission that accused stated that he has borrowed the amount from his friend, Mallikarjun about two days back as a loan and when he was asked about keeping the said amount in different covers, the accused answered that it is to be given to different temples and when he was asked that where the said amount is being carried, he has not answered. When the Investigating Officer asked the accused person that where he is proceeding, he told 13 that he is proceeding from Chikkamagaluru to Belur side. Hence, he submitted that the contents of the said panchanama also clearly make out prima facie case as against the petitioner herein that he received the bribe amount and thereby he committed the alleged offences. He also made the submission that the prosecution will be in a position to adduce evidence during the course of trial. Hence, it is the submission that it is not the case invoking Section 482 of Cr.PC and to quash the proceedings. It is also his submission about the explanation offered by the petitioner, the Lokayuktha police have enquired his friend, Mallikarjun, who denied that he gave the amount of Rs.6,85,000/- to the petitioner. He also made the submission that when the amount was found in the possession of the petitioner, it was seized from his possession . The presumption under Section 20 of the PC Act come into play and it is for the petitioner to rebut the said presumption. It is also his further submission that Section 106 of the 14 Evidence Act comes into play that it is the burden on the part of the accused person to explain as to how the said amount came into his possession. Hence he submitted that the petitioner has not made out the case to allow the petition filed under Section 482 of Cr.PC for quashing two proceedings.
12. In support of his submission, learned Special PP relied upon the order of this Court dated 4.11.2015 made in Crl.RP No.903/2015.
13. I have perused the grounds made in both the petitions and also the order passed by the learned Special Judge, contents of the FIR, complaint and also the mahazar said to have been conducted by the Lokayuktha Authority and the entire chargesheet materials produced in the case. I have also perused the provision under Section 7 and Section 13(1)(d) of PC Act. Section 7 of the PC Act reads as under: 15
"7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a 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 whatever, other than legal remuneration, as a motive or reward for doing or forbearing 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, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then (three years) but which may extend to (seven years) and shall also be liable to fine.
Explanations.- (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary 16 gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
Therefore, it is the submission of the learned Senior counsel for the petitioner that there must be acceptance or obtaining or agreed to accept or attempts to obtain the bribe amount the illegal gratification other than the legal remuneration from any other person. Examining the complaint averments, it is stated in the said 17 complaint that the accused person is collecting the amount from the owners of liquor shops, there is no supportive materials collected by the Investigating Officer during the investigation. The statement of the said owners of liquor shops were not at all collected and whatever the materials collected, I have perused the statement of some of the witnesses. Looking to these statements, there is no whisper that they have paid any bribe amount to the accused person herein for getting favour from him. It is also not their statement that they have seen any person giving bribe amount to the petitioner herein for getting any favour from the accused person. Therefore, regarding the said allegation, which is made in the complaint for collecting the bribe amount, absolutely there is no material collected during the investigation by the Investigating Officer.
14. Sofar as the money said to have been found with the possession of the accused person of 18 Rs.6,85,000/- is concerned, I have perused the contents of the seizure mahazar, wherein it is stated that the accused, Sri R Venkatesh Padaki was carrying the bribe amount in his car bearing Regn. No.KA- 02/MD-3539 and the Investigating Officer during the investigation taken the said amount into his custody. In the said mahazar, it is recorded that when he was asked about the said money, he borrowed from his friend Malikarjun about two days back as a loan amount and is carrying the said amount to give to the temples and it is also mentioned that when the said Mallikarjun contacted over phone by the Lokayuktha Police, Chikkamagalur, asking about the amount of Rs.6,85,000/-, he denied giving the said amount. But in the very seizure mahazar, it is stated that the Investigating Officer asked about the incident, he gave his explanation stating that when he was proceeding from Chikkamagaluru to Beluru side in his own vehicle, the Lokayuktha Police, Chikkamgaluru intercepted his 19 car and he told them that he will give reply through his Advocate in the Court itself.
15. In seizure mahazar, it is stated that the accused will give reply in the Court itself through his Advocate. The question of giving his explanation that he has borrowed the money from his friend one Mallikarjuna is again contrary to the very contents of the said mahazar. Said Mallikarjuna is not cited as a charge sheet witness and the seizure mahazar is also not signed by said Mallikarjuna. Therefore, the contents of documents are also not consistent and they are contradictory to each other.
16. I have also perused the wording in Section 13(1)(d) of the PC Act. In three clauses, it has been mentioned that by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other 20 person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Looking all these three clauses, Clause (d) of Section 13(1) that the word `obtains' is figured. It clearly indicates receiving of the money from another person. The prosecution has not placed any material even after completion of the investigation and filing the chargesheet before the Court. Perusing the entire chargesheet material, there is no such material as to who has given this alleged bribe amount or gratification to the accused person to do any official favour to that other person. The learned Special PP made the submission that it is the consent bribe amount. But looking the wording of both Sections 7 and 13(1)(d) of the PC Act, we do not find any such wording `consent bribe'.
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17. I have also perused the decisions relied upon by the learned Senior counsel. In the decision reported in 2013(3) Supreme 151, para No.14 reads as under:
"Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record."
Therefore, looking to the said paragraph that before passing any order, issuance of process as against the accused person, first the Court has to be satisfied about the material applying the judicious mind and to take a decision that there is prima facie materials and sufficient ground to proceed as against the accused person for the specific offences. Therefore, the order of the learned Special Judge is vague order and the same reads as under:
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"Perused the chargesheet. There are sufficient material to proceed against the accused for an offence as alleged"
18. On going through the said order, there is no mention that after going through the said material, he is satisfied that there is sufficient materials placed by the prosecution for each of the offences alleged in the said case and further the offences are not named in the said order. No reasons are forthcoming in the said order. Therefore, the order itself clearly goes to show that there is no mental application to the available materials so as to take decision whether the said material amounts to sufficient ground to proceed against the accused for the offences alleged. Apart from that after perusing the original records from the case, the FIR and the complaint both are tampered. In the FIR, the date mentioned as 4.9.2014 is in different ink. The figure `O' earlier to figure `4' and the figure `1', there is over writing. The time mentioned as 14.30 hours and the 23 figure `3' is over-written and it is clearly visible to naked-eye. There is no initial at the said corrections made on each corrections. Not only that the dates and the time put in the FIR, there is ink having different shade comparing of the said ink of other writings in the FIR. In the complaint, the date 4.9.2014 and the time, 13.30 hours were filled later and it goes to show that these two columns were left blank. These materials clearly suggest that they were subsequently entered in the said documents. Therefore, there is tampering of the documents itself. Under the said circumstances, no importance can be attached to the said documents and also the materials said to have been collected.
19. I have also perused the another decision reported in 2015 AIR SCW 642. Paras-46 and 47 read as under:
"46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a 24 complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect."
Therefore, looking to the principles enunciated in the said decision and looking to the order passed by the Court below, the Court below has not at all considered the materials and not applied the judicious mind to the said materials before issuing the process to the accused person.
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20. I have also perused the order dated 4.11.2015 passed by this Court relied upon by the Special PP. Looking to the order passed by this Court, the petition filed before this Court challenging the order of rejection of application filed under Sections 227 and 239 of Cr.P.C, wherein the Court held that there is prima facie case and in the case on hand, the petitions have been filed under Section 482 of Cr.PC seeking quashing of the proceedings registered as against the petitioner. Even with regard to the factual matrix in the order relied upon by the learned Special PP, they are not one and the same. Therefore, I find that the said order relied upon by the learned Special PP will not come into the aid and assistance of the contentions taken by the respondent.
21. Perusing the entire materials, even if the case is allowed to be proceeded, it is abuse of the process of court. No purpose will be served. The 26 materials clearly suggest that the proceedings are with malafide intention registered as against the petitioner herein. The petitioner has made out the case to invoke Section 482 of Cr.PC for quashing the proceedings. Hence, both the petitions are allowed. The criminal proceedings initiated against the petitioner are hereby quashed. So far as the property seized is concerned the petitioner to make necessary application before the concerned Court.
Sd/-
JUDGE Bkm.