Karnataka High Court
Sri R Sundaresh Naik vs The State Of Karnataka on 8 April, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL PETITION NO. 1808/2022
BETWEEN
SRI R SUNDARESH NAIK
S/O LATE RAMJI NAIK, AGED ABOUT 41 YEARS, WAS
WORKING AS
ASSISTANT EXECUTIVE ENGINEER
NAGAVARA E-9 SUB -DIVISION
BENGALURU-560 045
RESIDING AT NO.101, AFFINITY SERENITY
PINE STREET, RAMANASHREE CALIFORNIA
GARDEN, PUTTENAHALLI POST, YELAHANKA
BENGALURU-560 064
...PETITIONER
(BY SRI M.S.BHAGWAT, SENIOR COUNSEL A/W
SRI SATISH.K, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY
DEPUTY SUPERINTENDENT OF POLICE
ANTI CORRUPTION BUREAU
NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD
BENGALURU -560 001
REP. BY SPP HIGH COURT OF KARNATAKA
AT BENGALURU
...RESPONDENT
(BY SRI P.N.MANMOHAN, SPL. PP)
2
THIS PETITION IS FILED UNDER SECTION 439 OF THE
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.10/2022 REGISTERED BY A.C.B. POLICE, BENGALURU
FOR THE OFFENCE P/U/S 7(a) OF PREVENTION OF
CORRUPTION ACT, PENDING BEFORE THE XXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU URBAN DISTRICT, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.03.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
Heard Sri M.S.Bhagwat, learned Senior Counsel along with Sri. Satish K., learned counsel for the petitioner and Sri P.N.Manmohan, learned Special Public Prosecutor for the respondent-ACB.
2. This petition is filed under Section 439 Cr.P.C.
with the following prayer:
"The Petitioner therefore respectfully prays that this Hon'ble Court may be pleased to:
a) Call for records from Respondent - Police in Crime No.10/2022;
b) Enlarge the Petitioner on bail in Crime No.10/2022 XXIII Additional City Civil and 3 Sessions Judge & Special Judge, Bangalore Urban District, Bangalore registered by the Respondent-Police for the offence punishable under Section 7(a) of P.C.Act, 1988 on such terms and conditions as this Hon'ble Court deems fit;
c) Pass any other appropriate Order, including the cost of this petition, in the interest of Justice and equity."
3. Brief facts of the case are as under:
Sri. K.J.Antony S/o. K.A.John lodged a complaint with Anti-Corruption Bureau (hereinafter referred to as 'ACB' for short), Bangalore City Police Station, Bangalore.
In the complaint, it is contended that he is working as a Account Support Manager at Hewlett Packard Enterprise.
The father-in-law of the complainant has bought a residence at Telecom Layout (HBR) and built an apartment of 1+3 floors in February, 2020 which is known as Jayden Apartment. While building the apartment, the plan was approved by the concerned office and building has been constructed. In addition to it, Electricity, Water and 4 Sewage connection was also obtained from BESCOM and BWSSB by paying necessary fees. When the matter stood thus, on 10.02.2022 at about 3.00 p.m., Mr.Muniraj, Assistant Engineer has personally visited the apartment and disconnected the electricity connection from the spun pole to the apartment and informed the security personnel by name Deepak to contact him at mobile telephone No.9449875057 as early as possible. On account of disconnection of electricity, the complainant was required to contact said Muniraj. When, the complainant called to Muniraj, he told to contact Mr.Sundaresh Naik, AEE to his mobile telephone No.9449877171. Immediately, the complainant called Mr.Sundaresh Naik but call could not be materialized many times. On being materialized, Mr. Sundaresh Naik informed him to meet him in the office on the next morning. Complainant requested for connection at least for the night hours as 12 families are staying in the apartment. However, there was an adamant reply that the inmates of the apartment must stay without electricity.
Thereafter, the complainant had to contact layout 5 Secretary Mrs. Rathna and Mr.Viju to request Mr. Sundaresh Naik to provide electricity on humanitarian basis. The effort was materialized and there was reconnection of electricity at about 11.30 p.m. On 11.02.2022, the complainant visited the office where Mr.Sundaresh Naik was present. After due discussion, Mr.Sundaresh Naik (accused) told that he shall visit the apartment and after verifying the deviation, if any, he would guide him. Accordingly, he visited the apartment and told few modifications. He noticed that there is a deviation from the plan measuring 800 sq. mtr. The Electrical Contractor Mr. Varghese was also present.
Thereafter, there was a discussion between Sundaresh Naik and Contractor to pay a sum of Rs.18 lakhs for settlement of the issue. However, the complainant met Sundaresh Naik and sought for 30 days time.
4. Accused/Petitioner told complainant that bye-
passing the contractor, he can settle the issue for half of the cost as illegal gratification in a sum of Rs.9 lakhs. On 6 12.02.2022, he called Sundaresh Naik at 10 a.m. and again he asked him to meet on 15.02.2022. He called Sundaresh Naik at about 11.45 a.m., but there was no response and as such, the complainant visited the office of the accused and sought for time to arrange huge sum.
Accused informed to arrange Rs.5.00 lakhs within two days and he would discuss the matter with higher authorities to get the issue sorted out as early as possible. Complainant recorded the conversation between the accused and him that took place on 15.02.2022 on his mobile telephone.
The accused re-fixed the illegal gratification from Rs.9.00 lakhs to Rs.5.00 lakhs for restoration of the power. Since, father-in-law of the complainant was not willing to pay the amount, he approached the Police and lodged the complaint. The Police Officials of Anti Corruption Bureau having been satisfied with the contents of the complaint and also hearing the voice record, registered a case in Crime No.10/2022 for the offence punishable under Section 7(a) of Prevention of Corruption Act, 1988 and amended Act, 2018 (hereinafter referred to as 'the PC 7 Act' for short). After registering the case, trap was arranged by the ACB.
5. The trap was laid on 16.02.2022 and tainted currency was recovered from inside the car of the accused.
Colour test stood positive. The tainted currency was seized and accused was taken to custody and produced before the Jurisdictional Court and he was sent to judicial custody.
6. The attempt made by the petitioner to seek for grant of bail has been turned down by the learned Special Judge, Bengaluru (CCH 24) by order dated 25.02.2022 in Crime No.10/2022. Therefore, the petitioner is before this Court.
7. In the bail petition, following grounds have been raised.
It is to be noted that the Respondent have registered the FIR in Crime No.10/2022, however the Government of Karnataka in its executive order dated 19/03/2016 did not 8 declare the Inspector of Police as a police station as defined under Section 2 (s) of Criminal Procedure Code, 1973. Admittedly the investigation is completed by the inspector of police who is not a police station and vested with power of conducting investigation, therefore the investigation itself is flawed. Hence on this ground alone the Petitioner / Accused is entitled to be enlarged on bail.
It is pivotal to note that the bare reading of the complaint lodged by the defacto complainant prima facie indicates that the defacto complainant was not part of the discussion between the electrical contractor and the Petitioner / Accused, wherein the demand has been alleged to have been made. In addition to above the bare reading of the complaint makes it crystal clear that the defacto complainant himself has offered or proposed the bribe amount without there being any demand primarily made by the Petitioner / Accused. When this being the case the Respondent - Police have registered the FIR in Crime No. 10/2022 based on the conversation transmitted in the DVD by the defacto 9 complainant and the authentication / genuineness of the conversation transmitted in the DVD is to be unveiled in trial. The Trial Court ought to have considered the aforesaid ground while considering the application for bail.
Admittedly the trap was laid down in the night and the car which was stood in front of the house of father-in-law of the defacto complainant was standing in dark. In fact it is alleged in the Trap Mahazar that the defacto complainant made several calls to the Petitioner/Accused on 16/02/2022 to visit the house and hence based on the request made by the defacto complainant the Petitioner/Accused who was on a way back to his office upon completing the meeting, visited the house of Sri.T.I.Varghese and conducted the inspection once again by taking measurement of the building. Above all the trap Mahazar submitted before the Trial Court do not contain the exact conversation between the defacto complainant and the Petitioner / Accused and infact the Respondent - Police have cited the incomplete conversation to 10 tailor their needs and to disable the Petitioner from seeking bail. Therefore, the Trial Court could not have rejected the bail.
It is pivotal to note that the Petitioner / Accused herein is a government servant with no bad antecedents and the BESCOM has posted one Sri. Chalapathy to the post held by the Petitioner / Accused, therefore question of tampering of evidence or witness is by using his position as held by Trial Court is defiant of logic. In addition to above the offence alleged is neither punishable wither either death or life imprisonment, further, the Petitioner herein being the government servant is a law abiding citizen and hence there is no flight risks as well. Therefore, the order of Trial Court rejecting the bail application of petitioner is highly arbitrary and hence the Petitioner / Accused is liable to be enlarged on bail.
The Petitioner herein has specifically contended that his ailing mother is dependent on this Petitioner / Accused and subsequently the mother of the Petitioner herein has been hospitalized and the same is also evident from the hospital records. Further, the Respondent 11 Police who have taken the Petitioner / Accused into custody have seized all the materials and are in verge of completion of investigation as well. Therefore, rejecting the bail application has affected the personal liberty of the Petitioner / Accused and the allegation made in the complaint are matter of trial.
In addition to above it is prima facie evident from the records furnished before this Hon'ble Court that the defacto complainant who has constructed residential apartment has deviated sanctioned building plan. In fact upon the instructions of the higher officials the Petitioner / Accused has sent show-cause notice calling upon the defacto complainant to produce commencement certificate & occupancy certificate. Therefore, to wreck vengeance against the Petitioner / Accused the defacto complainant has lodged false complaint against the Petitioner to trap the Accused in the false case. It is also pertinent to note that the Accused herein in pursuance to trap has specifically given in writing that the tainted notes were handed over to the investigation officer upon the constructions. Therefore, the 12 manner of trap conducted by the Respondent - Police raises cloud over the investigation. Hence, the Petitioner / Accused herein is entitled to be enlarged on bail.
The Hon'ble Apex Court in case of P.Chidambaram Vs. Directorate of Enforcement reported in 2020 (13) SCC has held that granting of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. Further it has also been held that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence. Applying the said principles in the instant case the Respondent Police had almost completed the investigation by seizing the materials and by recording statements, therefore extending the custody by rejecting the bail would affect the personal liberty of the Petitioner/Accused who has a duty to look after his ailing mother who has been admitted to hospital. Therefore, the 13 Petitioner herein is entitled to be enlarged on bail.
In addition to above it is specifically mentioned in the complaint that the Petitioner / Accused in pursuance to request made by the defacto complainant has restored the electricity on the humanitarian ground. Therefore, the offence alleged against the Complaint cannot be believed at any stretch of imagination. Further, the Petitioner / Accused herein has till date worked for the Karnataka Power Transmission Corporation Limited without any stigma and has also been awarded for his excellent work. The defacto complainant who has committed violation of sanctioned building plan trapped the Petitioner /Accused in a false case with a malafide intention to take electricity service to the illegal construction and the same is evident from the records. Therefore, the Trial Court ought to have considered the aforesaid grounds. while considering the bail application of the Petitioner / Accused.
The allegations made in the complaint are matter of trial and the genuineness of the prima facie materials are to be tested in trial.
14Further, the Petitioner/Accused herein is in custody for more than 2 weeks and the Respondent Police have almost completed the investigation. The Petitioner / Accused herein has no bad antecedents and is a permanent resident of Bengaluru. In addition to above the Petitioner herein is totally innocent of the alleged offence and has not committed any offences as alleged in the FIR or complaint. Further, the Petitioner is hailing from the respectable family with deep roots in the society. Therefore, question of fleeing from justice would not arise if the Petitioners are granted with bail.
If the Petitioner herein is enlarged on bail, he will undertake to co-operate with the police in investigation. In addition to above no prima facie case has been made out by the defacto Complainant against the Petitioner herein, infact the allegations made in the said complaint are false and mischievous. Besides the aforesaid, the alleged crime has been registered is neither punishable with death nor imprisonment for life. Further, the Petitioners herein have made out a case for grant of bail.
15If the Petitioner herein is enlarged on bail no hardship will be caused to the Respondent Police. On the other hand, if the Petitioner is not enlarged on bail, the Petitioner will be put to untold hardship and mental agony. In fact, the Petitioner is ready to abide by any conditions imposed by this Hon'ble Court including furnishing surety to the satisfaction of the Hon'ble Court if he is enlarged on bail. Therefore, the Petitioner may be enlarged on bail.
The Petitioner has not filed any other petition except application for bail in Crime No. 10/2022, on the file of Hon'ble Additional City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru (CCH-24).
8. Reiterating the above grounds, Sri.M.S.Bhagwat, learned Senior Counsel along with Sri Satish K., learned counsel appearing for the petitioner vehemently contended that the petitioner is innocent of the offences alleged against him and he has been falsely implicated in the case, merely for shear, out of revenge for having disconnected 16 the electricity to the Jaydon Apartment on account of the illegal construction. He also contended that since the entire tainted currency has been seized and all the relevant materials have been collected by the Investigating Agency, continuation of the accused in judicial custody is no longer warranted. He also contended that even assuming that the case of the prosecution is to be accepted in toto, since maximum punishment available under the provisions of Section 7(a) of the amended Act, is imprisonment for seven (7) years. Therefore, the gravity of the offence is also not so high so as to deny the bail to the petitioner. He further contended that the petitioner is ready to abide by any of the conditions imposed by this Court and thus, sought for grant of bail.
9. Per contra, Sri P.N.Manmohan, learned Special Public Prosecutor for the respondent-ACB reiterating the contentions urged in the objection statement to the bail petition contended that the materials available on record 17 clearly establishes the very conduct of the petitioner, which would disentitle him from obtaining an order of bail.
10. In this regard, he referred to the voice record recorded by the complainant on 15.02.2022 and transcription of the same is made available in the mahazar.
11. He pointed out that transcription of the audio record clearly establishes that the petitioner being the official of BESCOM was required to protect the interest of the BESCOM but he has gone to the extent of giving suggestion to the complainant as to how to shortcut the procedure, which clearly shows that he is not a law abiding citizen and therefore, his bail request cannot be granted.
He further contended that the tainted currency to the tune of Rs.5.00 lakhs has been seized by the trap party from inside the car of the accused and colour test having stood positive, prima facie the petitioner has committed offence under Section 7(a) of the amended provision of the PC Act 18 and therefore, petitioner is not entitled for the grant of bail.
12. In view of the rival contentions of the parties, this Court perused the materials available on record meticulously.
13. In order to appreciate the rival contentions of the parties, it is necessary for this Court to bestow its attention to the voice recording said to have been recorded by the complainant on 15.02.2022, the transcription of the same reads as under:
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14. Admittedly, there is a violation of building plan in Jayden Apartment. Upon receipt of the complaint by K.J.Antony, there was a spot inspection conducted and noting violations in the building, the very petitioner directed that the electricity to the Jayden Apartment is to be disconnected. Accordingly, electricity connection was disconnected to the whole of the apartment building on 10.02.2022. After so disconnecting, mobile number of the petitioner was left with one of the inmates of the apartment with a request to contact the petitioner on the mobile telephone number. According to the complaint averments, the complainant tried to contact the petitioner over mobile phone but it was unsuccessful. Immediately, he rushed to the office of the petitioner, but it was no use.
Accordingly, he took the help of Mrs. Rathna and Mr.Viju, who are the layout secretaries and asked to contact the petitioner. What transpired between the complainant and the petitioner is not forthcoming. However, it is found from complaint averments that on humanitarian consideration, that electricity was restored for the night. Next day, the 27 complainant again contacted the petitioner along with electrical contractor by name Mr.Varghese. At that juncture, a deal was struck between the petitioner and the complainant through the contractor and there was a demand of Rs.18.00 lakhs of illegal gratification. However, bypassing the contractor, the complainant approached the petitioner directly wherein the illegal gratification amount was reduced from Rs.18.00 lakhs to Rs.9.00 lakhs. The complaint averments further reveals that Rs.9.00 lakhs was also again bargained and the illegal gratification amount was freezed to Rs.5.00 lakhs.
15. The oral conversation between the petitioner and the complainant was recorded on the mobile telephone by the complainant and the same was made available to the officials of the respondent. The conversation was then transcripted as referred to supra.
16. On such perusal of the transcription, it is crystal clear that the petitioner, who disconnected the electricity to the Jayden Apartment on the ground of deviation, has 28 demanded a sum of Rs.5.00 lakhs from the complainant and also suggested modifications so as to hood-wink or short circuit the provisions of law in restoring the electricity to the Jayden Apartment. Thereafter, the amount of illegal gratification was given to the officials of ACB, which was smeared with phenolphthalein powder and trap was laid. As per the instructions of the accused/petitioner, the amount was kept in the car, wherefrom the trap party seized the tainted money.
17. These aspects of the matter prima facie establish all ingredients to attract the offence under Section 7(a) of the amended provisions of the Prevention of Corruption Act.
18. Accused/petitioner is in custody from 16.02.2022. The tainted money is already seized and conversation between the complainant and accused is also recorded. Therefore, major portion of the investigation is completed in so far as the alleged offence is concerned.
2919. In a matter of this nature, custodial investigation of the accused-petitioner is not warranted.
Further, the apprehension of the prosecution is only to the extent of the petitioner if enlarged on bail, interfering with the investigation process by tampering the prosecution evidence.
20. Since, already tainted money is seized and necessary documents from the electricity department is also taken to custody of Investigating Agency, apprehension of the prosecution to a considerable extent has been quelled. Therefore, continuation of the accused in judicial custody is no longer warranted. Further apprehension of the prosecution if any, can be met with imposing suitable and stringent conditions including attendance of the petitioner before the Investigating Agency till final report is filed.
21. No doubt, the material on record prima facie goes to show that the petitioner has gone to the extent of betraying the department in suggesting the modification to 30 the building so as to over come his own decision to disconnect the electricity to Jayden apartment on the ground of violation of the building plan and illegal construction. However, the same is to be considered by the Trial Court during the trial. At best, the said aspect of the matter may weigh in favour of the prosecution in assessing the character of the petitioner. But, the same, at this stage, would not seriously interfere with the discretionary power vested in this court under the provisions of Section 439 Cr.PC., while considering the request made by the petitioner for grant of bail.
22. Accordingly, this court is of the considered opinion that petitioner has made out a case for grant of bail. Hence, this court pass the following:
ORDER:
The petition is allowed. Consequently, the petitioner shall be released on bail in connection with Crime No.10/2022 dated 16.02.2022 of Anti Corruption Bureau, Bengaluru City for the offence punishable under Section 31 7(a) of the Prevention of Corruption Act 1988 and Amended Act, 2018 subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.5,00,000/- (Rupees Five Lakhs only) with two sureties for the like sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses or hamper the investigation directly or indirectly.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates.
(iv) The petitioner shall mark his attendance before the Investigating Officer on every Saturday between 10.00 a.m., and 2.00 p.m., till the final report is filed.
(v) The petitioner shall not leave the jurisdiction of Bengaluru without prior permission.
Violation of any one of the conditions would entitle the prosecution to seek for cancellation of the bail.
Ordered accordingly.
Sd/-
JUDGE KA*