Karnataka High Court
Muniya Bhovi @ Muniyappa vs State Of Karnatka By Inspector Of Police on 25 January, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 645 OF 2010 (397)
C/W
CRIMINAL REVISION PETITION NO. 2167 OF 2010
CRIMINAL REVISION PETITION NO. 2227 OF 2011
IN CRL. R.P.NO.645/2010:
BETWEEN:
MUNIYA BHOVI @ MUNIYAPPA
S/O. LATE VENKATASWAMY,
AGED ABOUT 44 YEARS,
R/A. NO. 9, 1ST MAIN, SAMPIGE LAYOUT,
BANGALORE-96.
(AS PER CAUSE TITLE)
PRESENTLY R/AT NO.43, 10TH CROSS,
HARI LAYOUT, ULLAL MAIN ROAD,
BANGALORE-56.
...PETITIONER
Digitally
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
(BY SRI. VISHNU MURTHY, ADVOCATE;
M BHAT
(BY SRI. SABEEL AHMED (AMICUS CURIAE) V/O DTD 08.11.2023)
AND:
STATE OF KARNATKA
BY INSPECTOR OF POLICE,
CBI, ACB, BANGALORE.
...RESPONDENT
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C. BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
COURT MAY BE PLEASED TO SET ASIDE THE ORDER PASSED BY
THE III ADDL DISTRICT AND SESSIONS AND SPL JUDGE,
DHARWAD IN SPL CBI. C.C.NO.1/2005 DISCHARGE THE
PETITIONER (ACCUSED NO.12) IN THE ABOVE CASE, IN THE
INTEREST OF JUSTICE.
IN CRL. R.P.NO.2167/2010:
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(INVESTIGATING AGENCY CONSTITUTED UNDER DELHI
SPECIAL POLICE ESTABLISHMENT ACT, 1946)
REPRESENTED BY SUPERINTENDENT OF POLICE,
ANTI-CORRUPTION BRANCH, NO.36, BELLARY ROAD,
GANGA NAGAR, BANGALORE-560032.
...PETITIONER
(BY SRI. NEELENDRA D. GUNDE, SPL PP FOR CBI)
AND:
1. SMT M.G. SHANTHA KUMARI
W/O. N. RAMACHANDRA,
THE CHIEF ACCOUNTS OFFICER,
ZILLA PANCHAYAT, KARWAR,
R/O. RAGHAVENDRA ESTATE, MANIKANTANILAYA,
MULABAGAL, KOLAR DISTRICT.
2. SRI. N. RAMACHANDRA
R/O. RAGHAVENDRA ESTATE,
MANIKANTANILAYA, MULABAGAL,
KOLAR DISTRICT.
3. DR. NAGAMBIKA DEVI
THE THEN CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT, KARWAR.
4. SRI. PADMANABHA PURUSHA
ACCOUNTS SUPERINTENDENT,
OFFICE OF CHIEF AUDITOR,
CITY CORPORATION, MANGALORE.
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
5. SRI. BALACHANDRA SHASTRY
R/O. BANAVASI, TALUK: SIRSI,
NORTH KANARA DISTRICT, KARNATAKA,
C/O. NAGESH SHASTRY, 665/1, 5TH MAIN,
5TH CROSS, HANUMANTHNAGAR,
BANGALORE-19.
6. SRI. K. N. CHANDRASHEKHAR
ACCOUNTS OFFICER, LOCAL AUDIT CIRCLE,
CHIKKAMANGALURU.
7. SRI. LAKSHMAN MESTA
S/O. LAXMAN GANAPAYYA MESTA,
HADAVINAKONE, SHIROOR TALUK,
COONDAPUR.
8. SRI. BASAVARAJ SIDHABASAPPA MASUR
SARADA NILAYA, BEHIND POONNAREDDY PARK,
HAVAMBAVI, BELLARY.
9. SRI. NARAYAN VINAYAK MAHALE
SENIOR ASSISTANT, OFFICE OF DEPUTY
COMMISSIONER, KARWAR.
10. SRI. IMAM KHAN MOHIDEEN KHAN PATHAN
PEON, ZILLA PANCHAYAT,
KARWAR.
11. SRI. VENKATRAMEGOWDA
R/O. NEAR BHAJAN MANDIR,
MUTYALPET, MULBAGAL TOWN,
KOLAR DISTRICT.
12. SRI. MUNIYA BHOVI
R/O. NO.9, 1ST MAIN, SAMPIGE LAYOUT,
BANGALORE-79.
13. SMT. GAYATRI
W/O. SRI. MUNIYABHOVI,
R/O. NO. 9, 1ST MAIN, SAMPIGE LAYOUT,
BANGALORE-79.
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
14. SRI. KARUNAKAR KATTIKE
R/O. PLOT NO.37, B. TEACHERS COLONY,
OM NAGAR, HUBLI-31.
15. SRI. ULLAS GANAPATHI POKHALE
CLERK, CORPORATION BANK,
KARWAR.
16. SMT. CHANDRAMMA
CLERK, SYNDICATE BANK,
BANASWADI BRANCH,
BANGALORE.
17. DINESH KALGUTKAR
AGE: MAJOR, OCC: S.D.A. IN ZILLA PANCHAYAT,
KARWAR.
18. SMT. SUJATABAI
AGE: MAJOR, OCC: F.D.A. IN ZILLA PANCHAYAT,
KARWAR.
19. VENKATESH HEBBAR
AGE: MAJOR, OCC: F.D.A. IN ZILLA PANCHAYAT,
KARWAR.
...RESPONDENTS
(BY SRI. R.V.S. ASSOCIATES FOR R1 AND R2, R3- DISMISSED;
SRI. ARVIND D. KULKARNI, ADVOCATE FOR R4 AND R8;
SRI. MOHANKUMAR M., ADVOCATE FOR R5, R14, R15 AND R19;
SRI. S.V.PATIL AND P.M.DEVASHETTI, ADVOCATE FOR R6;
SRI. G.A.HOLEYANNAVAR, ADVOCATE FOR R7L
SRI. T.R.PATIL, ADVOCATE FOR R9, R10, R16 AND R18;
SRI. SHRIKANT T. PATIL, ADVOCATE FOR R11;
SRI. VISHNUMURTHY, ADVOCATE FOR R12 AND R13;
SRI. MRUTYUNJAY T. BANGI, ADVOCATE FOR R17)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND ALLOW
THIS PETITION AND TO SET ASIDE THE ORDER DATED
20.02.2010, PASSED IN SPL. CBI C.C.NO.1/2005, ON THE FILE OF
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
III-ADDITIONAL DISTRICT SESSIONS AND SPECIAL JUDGE,
DHARWAD.
IN CRL. R.P.NO.2227 /2011:
BETWEEN:
SRI. VENKATRAMEGOUDA,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: NEAR BAJAN MANDIR, MUTYAL PET,
MULBAGIL TOWN, DIST: KOLAR.
...PETITIONER
(BY SRI. SHRIKANT T. PATIL, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION,
REP. BY SUPERINTENDENT OF POLICE,
ANTICORRUPTION BRANCH, NO: 36,
BELLARY ROAD, GANGA NAGAR,
BANGALORE-32.
...RESPONDENT
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER OF FRAMING
CHARGES AGAINST THE PETITIONER (ACCUSED NO.11) IN
RESPECT OF THE ALLEGED OFFENCE CONNECTED TO
CORPORATION BANK BRANCH KARWAR, IN SPL. C.B.I.
C.C.NO.01/2005, DATED 20.02.2010 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, & SPECIAL
COURT, DHARWAD.
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:1958
CRL.RP No. 645 of 2010
C/W CRL.RP No. 2167 of 2010,
CRL.RP No. 2227 of 2011
ORDER
These three criminal revision petitions arise out of the order dated 20.02.2010 passed by the Court of III Additional District and Sessions Judge and Special Judge, Dharwad in Spl.CBI.C.C.No.01/2005. Therefore, they are clubbed, heard together and disposed off by this common order.
2. FIR was registered against the accused Nos.1 to 19 in R.C.No.22(A)/2000-BLR by CBI, Bangalore on 16.08.2000 for the offences punishable under Sections 409, 419, 420, 467, 468, 471, 477(a) read with Section 120(b) of the Indian penal Code (for short, 'the IPC') and Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act,1988 (for short, 'the P.C. Act'). After completion of investigation, charge sheet was filed against the accused persons and cognizance of the offences was taken by the trial Court. Accused Nos.3, 4, 6, 7, 13, 14, 15 and 19 had filed separate applications under Section 239 of the Criminal Procedure Code (for short, 'the Cr.P.C') before the trial Court seeking their discharge from -7- NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 the case and the same was opposed by the CBI by filing statement of objections. The trial Court after hearing both the parties, vide the impugned order had partly allowed the applications and had discharged all the accused persons in respect of the offences relating to transactions related to the Varada Grameen Bank, karwar. The prayer made for discharging the aforesaid accused insofar as it relates to the offences relating to transactions related to the Corporation Bank, Karwar Branch, was dismissed as against the accused No.1, 2, 4, 6, 11 and 12 and allowed insofar as others. Being aggrieved by the same, the CBI has filed Criminal Revision Petition No.2167/2010. Criminal Revision Petition No.645/2010 is filed by the accused No.12 and Criminal Revision petition No.2227/2011 is filed by accused No.11 insofar as its relates to the rejection of their prayer for discharging them in respect of the offences committed in respect of the transactions with the Corporation Bank, Karwar Branch. -8-
NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011
3. Learned counsel for the petitioner submits that the Special Judge has proceeded to hold a mini trial at the stage of considering the discharge application, which is not permissible in law. He submits that though the discussion is made only in respect of accused No.18 in page No.51 of the order, accused Nos.7, 8, 10, 13 and 16 were also discharged without there being any reasons assigned. Accused No.9 had earlier filed discharge application before the trial Court which was rejected and the said order was confirmed by this Court in Criminal revision petition No.2015/2008 dated 17.11.2008. In spite of the same, the trial Court has entertained his application and discharged him. He submits that the trial Court has raised presumption of innocence in favour of accused, which is not permissible in law. He also submits that the trial Court has opined that though some of the accused have committed certain mistakes, they cannot be prosecuted for the said offences but only departmental enquiry is required to be held against them. He submits that the -9- NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 entire approach of the trial Court is bad in law. Accordingly, he prays to allow the criminal revision petition.
4. Per contra, learned counsel appearing for some of the contesting private respondents has argued in support of the impugned order passed by the learned Sessions Judge and submits that this Court has dismissed Criminal Revision Petition No.2167/2010 as against the accused No.3 vide order dated 02.08.2010 and in the said order there is a specific finding recorded that the CBI had not obtained the consent as required under Section 6 of the Delhi Special Police Establishment Act, 1946, before filing the charge sheet. The said finding has been upheld by the Hon'ble Supreme Court and the Special Leave appeal No.4142/2011 filed by the CBI against the order dated 02.08.2010 is dismissed. He also submits that prima facie the charge sheet materials do not make out a case against the accused persons. Therefore, trial Court was justified in passing the impugned order. Accordingly, he
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 prays to dismiss the criminal revision petitions filed by the CBI.
5. Charge sheet has been filed in the present case against 19 accused persons for the offences punishable under Sections 409, 419, 420, 467, 468, 471, 477(a) and Section 120(b) of the IPC and Section 13(2) read with Section 13(1)(c)(d) of the P.C. Act. Accused No.1 Smt.M.G.Shantha kumari, was working as CAO of the Zilla Panchayath, karwar, during November 1995 to June 1998. Accused No.2-Sri.Ramachandra is the husband of accused No.1 and accused No.3 Dr.Nagambika Devi, was working as CEO of the Zilla Panachayath, karwar, from March 1996 to May 1998. Accused Nos.4, 6, 10, 17 to 19 were employees of the Zilla Punahcayath, Karwar, during the relevant period. Accused Nos.11 to 13 are not public servants and accused No.13 is the wife of accused 12 and accused No.16 is the sister of accused No.1 and accused Nos. 5, 14 and 15 are the employees of the Varada
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 Grameen Bank, karwar and Corporation Bank, karwar Branch respectively.
6. The allegation in the charge sheet is that accused had entered into conspiracy and cheated the Government of India by misappropriating funds released by the Government of India to the Zilla Panchayat, karwar for various Government sponsored programs. Accused No.1 allegedly diverted the funds and misappropriated the same in collusion with accused No.5. She had opened multiple bank accounts in Varada Grameen Bank, karwar and also Corporation Bank, karwar Branch, and the amount was misappropriated by issuing self cheques and also by issuing cheques in the name of employees of the Zilla Panchayat and some of the cheques were also issued in the name of the private persons and also in the name of her relatives. A total sum of Rs.41,43,489/- was misappropriated by the accused persons by withdrawing amount under self drawn cheques, in addition to the sum of Rs.72,32,964/- which was misappropriated by
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 withdrawing the amounts under 59 cheques issued in the name of various private persons and also fictitious persons. In addition to the withdrawal of aforesaid amount, there was also an allegation that the interest earned in various fixed deposits which were in the name of the Zilla Panchayath was also not properly accounted and the accused No.1 had availed loans on the fixed deposit of the Zilla Panchayath to the tune of Rs.508.06 lakhs.
7. The applications were filed under Section 239 of the Cr.P.C only by accused Nos. 3, 4, 6, 7, 13, 14, 15 and 19, seeking discharge. However, the learned Sessions Judge has considered the case of other accused persons who have not filed discharge application and vide impugned order has discharged some of the accused persons, who have not filed applications under Section 239 of the Cr.P.C. Accused No.9 had earlier filed an application under Section 239 of the Cr.P.C and same was dismissed by the Special Judge and the said order was confirmed in Criminal Revision Petition No.2015/2008 dated 17.11.2008
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 by this Court. In spite of the same, case of the accused No.9 has been considered once again and he has been discharged by the learned Special Judge.
8. The learned Special Judge while considering the application of the accused seeking discharge has virtually held a mini trial and has proceeded to give findings with regard to the veracity of the statement made by the charge sheet witnesses under Section 161 of the Cr.P.C. Such an approach is not permissible at the stage of considering the application for discharge. The learned judge was only required to find out as to whether the charge sheet material makes out a prima facie case to proceed against the accused persons for the charge sheet offences. However, the learned Special Judge has exceeded his jurisdiction and has held that though some of the accused have committed mistake, lodging criminal case against them is not the remedy and on the other hand, departmental enquiry was required to be held against them.
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011
9. Learned Sessions Judge in page No.51 of his order has considered the case of the accused Nos.7, 8, 10, 13, 16 and 18 for discharge. After discussing the prosecution case against the accused No.18, he has proceeded to discharge accused Nos.7, 8, 10, 13 and16 along accused No.18. Absolutely no reasons have been assigned for discharging these accused.
10. The learned Sessions Judge after discussing with regard to the merits and demerits of the statement made by the charge sheet witnesses, has also raised a presumption in favour of the accused persons and virtually has given a finding that the statement made by the witnesses cannot be correct. The Court while considering the discharge application must proceed based on the material brought on record by the prosecution and the said material is required to be evaluated by the Court only to find out as to whether the said material discloses a prima facie case for the charge sheeted offences. The learned Sessions Judge is not justified in appreciating the evidence
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 and pointing out the inconsistency in the statement of the witnesses at the stage of considering the discharge application.
11. The learned Special Judge has also observed that in addition to the investigation done in the present case by the CBI, a parallel enquiry was also ordered by the Government of Karnataka by the CID. The said observation is without any basis and learned counsel for the CBI on instructions has submitted that such an enquiry was not ordered in the present case.
12. In addition to the aforesaid, it is not in dispute that the consent under Section 6 of the Delhi Special Police Establishment Act, 1946, was obtained in the present case in accordance with law, insofar as the offences which relate to the transactions with the Corporation Bank, Karwar Branch, is concerned. Inspite of the same, the trial Court however has proceeded to frame charge only as against the accused No.1, 2, 4, 6, 11 and 12 in respect of the offences committed by the accused
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 persons relating to the transactions with the Corporation Bank, karwar Branch. In my considered view, this approach of the trial Court is highly illegal and therefore, the order impugned insofar as it relates to discharging the accused persons other than accused Nos.1, 2, 4 , 6, 11 and 12 for the offences relating to transactions in Corporation Bank, Karwar Branch, is not sustainable.
13. This Court in Criminal Revision Petition No.2167/2010 has passed an order on 02.08.2010 upholding the impugned order insofar as it relates to the accused No.3 is concerned. The said order has been upheld by the Hon'ble Supreme Court in SLA No.4142/2011. While passing order dated 02.08.2010 in Criminal Revision Petition No.2167/2010, this Court has recorded a finding that the consent under Section 6 of the Delhi Special Police Establishment Act, 1946, was not obtained by the CBI before filing of charge sheet, insofar as offences which relate to the transactions in Varada Grameen Bank, Karwar, is concerned and therefore,
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011 discharge of accused in the present case insofar as it relates to the offences in respect of the transactions in Varada Grameen Bank, Karwar, is justified. This finding has attained finality and same is confirmed by the Hon'ble Supreme Court. Therefore, it is not open to the CBI, to seek reopening of the case against the accused even in respect of the offences which are related to the transactions in Varada Grameen Bank, Karwar.
14. Under the circumstances, the order impugned discharging the accused persons insofar as it relates to offences relating to the transactions with Varada Grameen Bank, Karwar, is required to be confirmed and the order of discharging the accused persons, insofar as it relates to the offences relating to the transactions with Corporation Bank, Karwar, is required to be set aside. Accordingly, the following:
ORDER
a) Criminal Revision Petition No.2167/2010 is partly allowed.
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NC: 2024:KHC-D:1958 CRL.RP No. 645 of 2010 C/W CRL.RP No. 2167 of 2010, CRL.RP No. 2227 of 2011
b) The order dated 20.02.2010 passed by the Court of III Additional District and Sessions and Special Judge, Dharwad in Spl.CBI.C.C.No.01/2005, insofar as it relates to discharging the accused persons for the offences relating to the transactions with the Varada Grameen Bank, Karwar, is confirmed and the order is set aside insofar as it relates to discharging accused persons, for the offences relating to the transactions with the Corporation Bank, Karwar.
c) In view of the order passed in Criminal Revision Petition No. 2167/2010, Criminal Revision Petition No. 645/2010 and Criminal Revision Petition No.2227/2011 stands dismissed.
Sd/-
JUDGE AC List No.: 1 Sl No.: 46