Karnataka High Court
Mr N Thejas Kumar vs The State Of Karnataka on 21 March, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION No.915 OF 2022 (GM-RES)
BETWEEN
MR N THEJAS KUMAR
S/O SRI NAGAPPA,
AGED ABOUT 51 YEARS,
SPECIAL LAND ACQUISITION OFFICER-1,
KIADB OFFICE, NO.39, SHANTHIGRUHA,
PALACE ROAD, R/AT NO.79/A,
IST MAIN, SIDDIVINAYAKA LAYOUT,
SANJAYNAGAR,
RMV EXTENSION, 2ND STAGE,
BENGALURU - 560 094. ...PETITIONER
(BY SRI PRUTHVI WODEYAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
ANTI-CORRUPTION BUREAU,
O/AT NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU-560001
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BENGALURU-560001
2
2. M NATARAJ
S/O LATE MUNISHAMI GOWDA,
AGED ABOUT 40 YEARS,
R/AT MASTENAHALLI VILLAGE,
KAIVARA HOBLI,
CHINTAMANI TALUK,
CHIKKABALLAPURA DISTRICT - 563 126.
...RESPONDENTS
(BY SRI P N MANMOHAN, SPECIAL COUNSEL FOR R1/ACB
SRI RAJENDRA B KULKARNI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CRIME NO.39/2021
REGISTERED BY THE R1 (ANTI-CORRUPTION BUREAU) FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7(a) AND 12 OF THE
PREVENTION OF CORRUPTION ACT, 1988 VIDE ANNEXURE-A
PENDING ON THE FILE OF XXIII ADDL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE (PCA), BENGLAURU,
GRANT AN INTERIM ORDER TO STAY THE FIR IN CRIME
NO.39/2021 REGISTERED BY THE R1 (ANTI-CORRUPTION
BUREAU) FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
7(a) AND 12 OF THE PREVENTION OF CORRUPTION ACT, 1988
VIDE ANNEXURE-A PENDING ON THE FILE OF XXIII ADDL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (PCA),
BENGALURU AND ALL FURTHER PROCEEDINGS IN PURSUANCE
THEREOF.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.03.2022 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
This petition is filed by the petitioner-accused No.1 under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the FIR registered 3 against him in crime No.39/21 by the 1st respondent-Anti Corrupton Bureau for the offences punishable under Sections 7(a), 12 of Prevention of Corruption Act (hereinafter referred to as 'PC Act' for short).
2. Heard learned counsel for the petitioner and learned Special Counsel for respondent No.1 and the learned Counsel for respondent No.2-complainant.
3. The case of the prosecution is that on the complaint of respondent No.2, the ACB-police have registered a case against the petitioner.
4. The de-facto complainant alleged in his complaint dated 20.09.2021 that his uncle Narayanaswamy and one H.M. Balakrishna were having land bearing Sy.No.40/P63 measuring 27 guntas which was acquired by the KIADB and also the land bearing Sy. No.76/P5 measuring 30 guntas belongs to one Venkataramanappa was also acquired by the KIADB, but 4 the compensation was not yet paid. Therefore, the land owners have executed GPA in his favour for receiving the compensation. Accordingly, the complainant approached the petitioner, who is the Special Land Acquisition Officer-I working in KIADB, for release of the compensation and the petitioner was said to be demanded bribe in the month of August 2021. Accordingly, the complainant said to have paid Rs.5.00 lakhs and Rs.4.00 lakhs respectively on the aforesaid survey number, to the hands of accused No.2 Girish, who is said to be relative of petitioner. It is further alleged by the complainant that, within 3-4 days, the petitioner-accused demanded further amount. Then he took Rs.4.00 lakhs and approached the petitioner for payment. The petitioner directed the complainant to pay the said amount to accused No.2 and accordingly, the complainant paid it.
5. The complainant further alleged that on 17.09.2021, he tried to approach the petitioner, but he could not meet. Hence, he met accused No.2 and accused 5 No.2 said to have told the complainant that the said amount was paid for earlier one. The accused demanded further, which was audio recorded by the complainant. Thereafter, he tried to meet the petitioner on 18.09.2021, but he could not. the complainant further alleges that he has already paid Rs.10.50 lakhs to the petitioner-accused, who demanded further amount of Rs.2.50 lakhs, but the complainant was not willing to pay the bribe. Hence, he lodged the complaint.
6. After registering the case, the police arranged trap and sent Rs.2.00 lakhs through respondent No.2 along with shadow panch witness and that on 21.09.2021, the de facto complainant along with shadow witness went to the chamber of the petitioner and came out and handed over cash to accused No.3, who is the Manager of accused No.1 and the police trapped accused No.3 and arrested him, and the cash was seized by ACB police team and then, they also arrested the petitioner-accused No.1 and they have been remanded to judicial custody. 6 Subsequently, they have been released on bail. Being aggrieved with registering FIR by the respondent No.1, the petitioner is before this Court praying for quashing the FIR on various grounds.
7. Learned counsel for the petitioner has seriously contended that the petitioner is innocent of the alleged offence. He has been falsely implicated and falsely arrested. Absolutely, there is no demand and acceptance of the bribe by the petitioner. Demand and acceptance is the necessary ingredient to attract Section 7(A) of PC Act. There is no proof of voice record to show that the petitioner demanded bribe on the day of trap and there is no material to show that the petitioner has directed accused No.3 to receive the amount or directed the complainant to hand over the same to accused No.3. He further contended that on 15.09.2021 itself, the petitioner- Special LAO-I of Chikkaballapur jurisdiction has been transferred and he was ordered to hand over the charges to the Special LAO-II with immediate effect. Accordingly, 7 he has ordered to hand over all files to SLAO-II as on 17.9.2021 and there is no entrustment of work or work pending with him as on the date of trap on 21.9.2021. The learned counsel has also contended that the petitioner himself has lodged a complaint to the police on 16.09.2021 against the land owners that the land owners were obstructing the engineers while doing developmental work in spite of granting compensation. He further argued that, on 26.08.2021 itself, the petitioner sent letter to the Senior Assistant of Horticulture department, Zilla Panchayat, stating that the land has already been acquired and the owners were obstructing in carrying out the development work and the owners are entitled only for compensation. The petitioner also said to have written a letter to the Assistant Director of Land Records (ADLR) on 24.08.2021 in this regard and therefore it is contended that there is no question of releasing the land to the land owners. He has also sent a letter to the Special Deputy Commissioner of KIADB on 23.08.2021 for confirming the acquisition award. When the petitioner himself wrote 8 letters against the land owners and filed complaint to the rural police against land owners as they were obstructing the development work in spite of completion of acquisition, the question of demand of bribe does not arise.
8. The learned counsel for petitioner has also contended that the petitioner refused to de-notify the land and lodged complaint against the farmers/land owners. Therefore the land owners with intention to take revenge against the petitioner, has foisted false complaint against him. He would further contend that the police also raided the house of the petitioner, but no money was recovered from him. Such being the case, there is no ingredients or materials available to investigate the matter for the alleged offence as there is no cognizable offence is made out against him, which amounts to abuse of process of law and therefore, prays for allowing the writ petition and for quashing the FIR.
9
In support of his contentions, the learned counsel for the petitioner has relied on the following judgments:
P. Chidambaram V. Directorate of Enforcement reported in 2019 (9) SCC 24. State of Orissa and Another V. Saroj Kumar Sahoo reported in 2005 (13) SCC
540. Teeja Devi V. State of Rajasthan reported in 2014 (15) SCC 221.
N. Vijayakumar V. State of Tamil Nadu reported in 2021 (3) SCC 687.
Kapil Agarwal and Others V. Sanjay
Sharama & Ors. reported in 2021 (5) SCC
524
9. Learned Special Counsel appearing for
Respondent No.1 ACB filed objection to the petition and contended that the matter is under investigation and it is in a preliminary stage. There is audio record to show that the petitioner demanded bribe and issued bribe through accused No.2. He has recorded the audio before conversation of accused No.2 and the complainant. The 10 accused No.3 accepted bribe on behalf of accused No.1. He further contended that the complainant has stated that he had approached the petitioner in August 2021 when work was with the petitioner. Though he was transferred as per the order on 15.09.2021, but he had not handed over the charges to the SLAO-II. The order was prepared by the accused No.3 and it was not signed by accused No.1. He further contended that a file pertaining to Chikkaballapur has been seized from the car of the petitioner, which reveals that he has not handed over the charges. The Court cannot go into investigation at this stage. There is sufficient material collected against the petitioner and therefore, prayed for dismissing the petition.
In support of his case, he has relied upon the judgment of Hon'ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharastra and Others reported in 2021 SCC Online
315. 11
10. Learned counsel for respondent No.2 has also contended that the petitioner demanded the bribe and received Rs.9.00 lakhs and the petitioner further demanded Rs.2.50 lakhs and the same was paid by the respondent No.2 to the hands of accused No.3 and trap was laid. Therefore, the matter requires a detailed investigation and hence, prayed for dismissal of the petition.
11. Having heard the arguments, perused the records.
12. Before going to the case on hand, it is worth to mention the principles laid down by the Hon'ble Supreme Court in the case of exercising power under Section 482 of Cr.P.C. in quashing criminal proceedings and quashing FIR.
13. In the case of Neeharika Vs. State of Maharastra (supra), at paragraph 57, the Hon'ble Supreme Court has held as under:
12
57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
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) However, 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, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C.
is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
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 13 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 and a rarity 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. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
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 14 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. During or 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 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; and xv) When a prayer for quashing the FIR is made by the alleged accused, 15 the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.
14. Learned counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in N. Vijayakumar's case (supra), wherein the Hon'ble Supreme Court, at paragraph 27, has held as under:
27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] read as under:
(SCC pp. 58-59) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the 16 money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v.
CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 :
(2009) 2 SCC (Cri) 1] .
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the 17 tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." 18 The above said view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.
15. In another case reported in SKODA AUTO VOLKSWAGEN (INDIA) PRIVATE LIMITED VS. STATE 19 OF UTTAR PRADESH AND OTHERS reported in (2021) 5 SCC 795 the Hon'ble Supreme Court has held as under:
41. As cautioned by this Court in State of Haryana v. Bhajan Lal, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the 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 or in the complaint.
42. In S.M. Datta v. State of Gujarat, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta, this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law 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.20
16. It is well settled by the Hon'ble Supreme Court that FIR can be quashed only in the rarest of rare case where there is no cognizable offence is made out against the accused for investigating the matter and there is no ingredient to attract the penal provisions of the law.
17. By keeping all the principles laid down by the Hon'ble Supreme Court in the above said cases in mind, now this Court comes to the grounds urged by the petitioner's Counsel available on record and the documents produced by the respondent counsel.
18. On perusal of the documents and the grounds urged by the Counsel for the petitioner the following grounds would arise for my consideration:
(i) There is no work pending with the petitioner as on the date of trap on 21.09.2021.
(ii) There is no demand and acceptance of bribe.
(iii) Innocence of the accused and reason for false implication.21
19. (i) WORK ENTRUSTMENT OR NO WORK PENDING AS ON THE DATE OF TRAP ON 21.09.2021:
The learned counsel for the petitioner has contended though the petitioner was SLAO-I for Chikkaballapur District, he has been transferred by the Government with immediate effect as on 15.09.2021 and by an order dated 17.09.2021, he has directed the office to hand over the files in his charge to SLAO-II and therefore, the question of demanding any bribe for doing work does not arise as he has been already transferred from the post.
20. In this regard, it is an admitted fact that as per the Government notification dated 15.09.2021, the State Government transferred the petitioner to Chikkaballapur District from SLAO-I to SLAO-II with immediate effect. This document is not in dispute, where it clearly reveals that the petitioner was given in charge of Bangalore Rural District with immediate effect from 15.09.2021. The another document is an official memorandum dated 17.09.2021 issued by the petitioner by directing the office 22 to hand over the files to the SLAO-II and directed to obtain the acknowledgment by mentioning the names of the manager and FDA as well as SDA to the concerned officials of his office. This document is also not in dispute.
21. It is also an admitted fact that the petitioner was SLAO-I for Chikkaballapur until 15.09.2021 and he has been transferred and the trap was laid on 21.09.2021 and the complaint filed by respondent NO.2 was on 20.09.2021 and FIR was also registered on the same day. It is clear that as on the date of trap on 21.09.2021, the petitioner was not in charge of Chikkaballapur district SLAO for the purpose of passing any order for release of compensation in respect of land situated at Chikkaballapur District.
22. The complainant has also stated in his complaint that he has tried to meet the petitioner on 17.09.2021 as well as on 18.09.2021, but he could not meet him. The de-facto complainant respondent No.2 has also stated that he has spoken to accused No.2, which 23 reveals that the complainant was not able to approach the petitioner for the purpose of releasing the compensation as the petitioner had been transferred from the position and the petitioner had directed the office to hand over the files on 17.09.2021 itself. It may be accused No.3 his manager did not hand over the files to the SLAO-II or his manager of SLAO-II, but the petitioner is nothing to do with the said file and seizes to pass any order.
23. The special counsel for the respondent has produced case records of the KIADB in respect of the property Sy.No.40/P/63, which is available in para Nos.28, 29, 31, 33, 34 and 36. On perusal of the case records, at para No.28, it reveals that a note was prepared by official on 15.09.2021 for release of the compensation and the file was forwarded to SLAO-I and the same was placed before the petitioner where he has directed to verify as to whether any dispute in respect of land or any case is pending before the Court, then as per para No.29. The same was again forwarded to the official and the manager 24 and accordingly, the said manager prepared the note stating that there is no case is pending and the suit for partition came to be dismissed as on 28.01.2021 and signed by the same staff on 17.09.2021 and placed the file before the manager (accused No.3). Here, accused No.3 prepared the note and also ordered to prepare the voucher for RTGS and requested for passing an order. Again the file was sent back to the manager and again a staff prepared a note by account number as per para No.36 and again placed before the accused No.3-the manager. There is no order passed by the petitioner accused No.1 even as on 17.09.2021 which reveals that though the accused No.3 prepared a note seeking order, but there is no order passed by accused no.1-petitioner, either on 15.09.2021 or 17.09.2021, for releasing the compensation. Such being the case, it cannot be said that the work was pending with the petitioner and he has demanded any bribe as on 18.09.2021 and no work was pending with him as on the date of trap on 21.09.2021. When there is no work pending with the petitioner as on the date of trap 25 and he has already been transferred from the post, directing the official to hand over the files and therefore the question of demanding further bribe of Rs.2.50 lakhs and directing the complainant to bring the same on 21.09.2021 does not arise at all.
24. In view of the same amount has been accepted by the accused No.3 directly without the instruction of accused No.1, the petitioner herein. The linking material evidence is missing in order to say that because the amount was demanded by accused No.1, the complainant took the money to accused No.1 and hence the accused No.1 asked to hand over the money to accused No.3 and accused No.3 received money at the instruction of accused No.1. Absolutely nothing amicable on record and FIR. Therefore, on this ground the FIR is not sustainable.
25. (ii) AS REGARDS THE DEMAND AND ACCEPTANCE:
The learned counsel has also contended that the complainant has not at all stated anything about the date on which the petitioner demanded the bribe and there is 26 no evidence or material to show that the petitioner received Rs.10.50 lakhs from the complainant in August 2021. It is vague allegation made against him without date and time and without any audio recordings.
26. On perusal of the document produced by the respondents and on the averment made by respondent No.2, in his complaint, he has not at all stated any dates in August 2021 to show that he had approached the accused, the accused had demanded money and received the same from respondent No.2. Though the complainant has stated that accused No.2 Girish came and received money once Rs.5.00 lakhs and Rs.4.00 lakhs near KPSC office, but he has not stated on which date he has paid the money and also no details forthcoming in the complaint to show that the said amount was paid to the accused no.2 at the instance of this petitioner. That apart, the police also raided house of the petitioner, they searched the house and nothing has been found and seized any cash from this petitioner's house, except some documents; Adhaar card 27 etc. That is not enough to show that he has previously demanded and accepted money from Respondent No.2.
27. Now coming to the date of trap, and as per the instructions given by the investigation officer instructed the complainant as well as shadow witness that the bribe amount shall be paid to accused No.1 only on demand by accused then only to pay the money to accused No.1 and also sent a digital voice recorder. Accordingly, respondent No.2 defacto complainant along with shadow witness was asked to go near the chamber of accused no.1. The shadow witness stayed out side the chamber and the respondent No.2, the complainant alone goes inside the chamber of accused No.1, by closing the door and again comes out and closed the door and then he went to the chamber of accused No.3 Dasegowda, and handed over the tainted cash of Rs.2.00 lakhs to the accused No.3. accused No.3 has accepted the same and kept in his lunch bag. Immediately, the investigation officer along with the staff trapped accused No.3 and seized the same and hand 28 wash of accused No.3 turned into pink which suggests the receipt of money by accused No.3.
28. Now, the question is whether accused NO.3 accepted money on the instruction given by accused No.1 or not.
29. In this regard, statement of the defacto complainant and the shadow panch witness as well as the trap panchanama reveals that the shadow witness stood outside the chamber of accused No.1 and the defacto complainant goes alone into the chamber of accused No.1. The de-facto complainant closes the door by entering into the chamber and immediately he comes out and then goes to the accused No.3 and hands over the cash. Absolutely, there is no link or material in the panchanama or in the statement of the defacto complainant or in the statements of shadow witness to show that the present petitioner accused No.1, demanded the bribe or asked the defacto complainant to hand over the cash to the accused No.3 or he telephoned to accused No.3 or called accused No.3 to 29 his chamber and instructed him to receive money from the de-facto complainant. Absolutely, there is no mention in the trap panchanama.
30. It is well settled that when there is no demand and acceptance which is sine quo non for framing of charge under Section 7(A) of P.C. Act and the complaint and trap panchanama itself has no legs to stand to say there is cognizable offence made out against the petitioner or any material placed on record as of now to say that he has demanded any bribe and accepted the bribe from the defacto complainant as on the day of trap.
31. If at all accused No.3 received any bribe amount, he has to give explanation and rebut the presumption available to the prosecution under Section 20 of P.C. Act. That apart, the investigation officer had sent digital voice recorder through the defacto complainant to confirm the demand by accused No.1 and directing the complainant to hand over bribe to any other person as per the direction of accused No.1, but the fact remains that 30 there is no conversation found in digital voice recorder. Such being the case, the question of presuming or assuming that the petitioner demanded bribe does not arise. When there is no material evidence for demand, the question of acceptance of bribe does not arise. Even otherwise mere acceptance, without demand is not an offence under Section 7 of PC Act
32. In view of the judgment stated supra, when there is no demand and acceptance, the question of conducting investigation against the petitioner by the investigation officer, which is futile exercise which is nothing but an abuse of process of law.
33. As I have already held above, when there is no work pending with the petitioner when there is no audio recording, material or any material on date to show that he has demanded or accepted any money either prior to September 2021 or as on the day of trap and in view of the transfer of petitioner from the post with immediate effect form 15.09.2201 and ordered to hand over files as 31 on 17.09.2021, the question of pending of work, demand and acceptance does not arises at all.
34. (iii) AS REGARDS TO THE INNOCENCE OF ACCUSED AND CHANCE OF FALSE IMPLICATION :
In this regard, the learned counsel produced some documents, which reveals that this petitioner was SLAO-I for Chikkaballapur District and he has been transferred from 15.09.2021 with immediate effect and he has directed the office to hand over the files as on 17.09.2021 itself much prior to the date of trap. Earlier to that, on 24.08.2021, he has sent a letter to ADLR, Chintamani. He has stated that the farmers are obstructing the development work in respect of acquired lands. Therefore, he has requested to survey the land and issue the documents. The on 26.08.2021, he also wrote a letter to horticulture department, Zillapanchayat that the farmers are agitating and requesting for denotifying the land, but he has stated that once the land has been acquired for development of industrial area by the KIADB, the question 32 of returning the land back to the farmers does not arise.
Again a letter dated 13.09.2021, reveals that one B. Venkatareddy, Civil Contractor, wrote a letter to the Chief Executive Officer KIADB as well as copy to the petitioner and an engineer stating that the farmers are obstructing the development work and therefore, prayed for providing compensation to the farmers and allow them to carry out the development work. It is also pertinent to note that on 16.09.2021, the petitioner wrote a complaint to the circle inspector of police Chintamani Rural police station by lodging complaint against the farmers especially the owners of the land in Sy. No.40 and Sy. No.76 and he has stated that there is dispute in respect of the said land and therefore, the compensation shall have to be deposited in the Court as per Section 28(7) of the Rules, which reveals that the petitioner lodged a complaint against the farmer i.e. the person who requested to pay the compensation where dispute arises in respect of ownership of land on a complaint given by one Venkataramanappa on 07.09.2020 stating that he has not received any share in the property 33 and therefore the said person has requested to stop the payment of compensation. Based upon that complaint, the petitioner lodged a complaint to the police on 16.09.2021 to take action against farmers by stating that he will deposit the compensation in the civil Court. Such being the case, the question of demanding and acceptance of bribe for releasing the compensation does not arise, apart from the fact there is no work pending with the petitioner.
35. Therefore, once the petitioner refused to pay the compensation on the request of Venkataramanappa and he lodges the complaint against the farmers as they were obstructing the development work and therefore, there is every possibility of lodging the false complaint against the petitioner is not ruled out as he has refused to pay the compensation to the complainant.
36. Apart from that the complainant is not the owner of the land for receiving the compensation. He is said to be a GPA holder of the land owners namely Akkayyamma and Venkataramanappa. But the said 34 Venkataramanappa has already filed complaint to the petitioner on 7.9.2020 for stopping the payment of compensation. Such being the case, the very fact of executing GPA in favour of complainant by Venkataramanappa is doubtful.
37. The documents of the respondent counsel regarding GPA said to be executed by Akkayyamma and Venkatarmanaqppa reveals that there is no date and place of execution of GPA and it was also neither registered nor attested by any advocate or notary. Even the stamp paper does not contain any date or names of owner or executor of the document. It reveals that there is possibility of creating these two false documents in favour of defacto complainant as the GPA given to him for receiving the compensation. Respondent No.2 also seems to be a middle man or broker, he is taking advantage of innocence of public and trying to implicate the officials without any right over the property. In view of the same, the every possibility of falsely implicating the petitioner in this case is 35 very much found in the record. Absolutely, there is no ingredient to attract Sections 7A or 12 of P.C. Act.
38. As per Section 7A, whoever accepts or obtain or attempts to obtain from another person or himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or by illegal means or exercise of his personal influence to perform or to cause performance of a public duty improperly for or dishonestly or forbear or to cause to forbear such public duty by such public servant or by another public servant shall be punishable in this section.
39. Though there is some telephonic conversation between petitioner accused No.1 and the complainant, absolutely there is no audio recording in respect of any demand made by the petitioner with the complainant in respect of releasing the compensation or demand of any bribe.
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40. On perusal of the entire complaint, absolutely there are no ingredients to attract both the above sections either for committing or abetting to commit any such offences either under Section 7A or 12 of P.C. Act. Absolutely, there is no cognizable offence made out against the petitioner for investigating the matter and on perusal of the entire averments, it falls under one of the rarest of the rare case where the petitioner was falsely implicated by the defacto complainant and the police. Therefore, it is not necessary to permit the police to conduct investigation against the petitioner and it is a fit case for exercising the power under section 482 of Cr.P.C. as it is one of the exceptional case.
41. This Court in various cases refused to interfere with the investigation by the investigation officer during FIR stage. But when the injustice is caused to an official and without any averments and material, allowing the police officer to investigate the matter is nothing but harassing the public servant at the instance of some 37 persons who were enemitical towards the officials. Once they refused to pass any favourable order and without any material allowing the investigation officer to conduct the investigation and for filing B final report or creating any further improvements in the case, if charge sheet is filed the court cannot frame the charges without any material and conducting the trial is futile exercise which is nothing but an abuse of process of law and hence the FIR in this case against the petitioner accused No.1 is required to be quashed.
42. Recently this Court upheld the acquittal of an accused under Section 7 of PC Act on the same ground, in Crl.A.No.429/2011 dated 10.03.2022. The Hon'ble Supreme Court in a recent case in the case of Kapil Agarwal and Others Vs. Sanjay Sharma and Others reported in (2021) 5 SCC 524 has taken a similar view and quashed the FIR. Such being the case, the FIR and the arguments of the respondent have no legs to stand. Hence, I proceed to quash the FIR.
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43. Accordingly, the petition is allowed. The FIR and the investigation against the petitioner accused No.1 in Crime No.39/2021 of ACB, pending on the file of Special Court, Bengalore for the offence under Sections 7A and 12 of P.C. Act is hereby quashed.
44. Pending I.As. if any do not survive for consideration. They are accordingly disposed of.
Sd/-
JUDGE GBB/CS/-