Telangana High Court
P. Shiva Kumar And 3 Others vs The State Of Telangana on 7 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.5863 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 to 4 to quash C.C.No.6051 of 2019 on the file of learned XII Additional Chief Metropolitan Magistrate, Hyderabad registered for the offences under Section 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act.
2. The facts in brief as can be seen from the charge sheet are as under:
a) Respondent No.2 - de-facto complainant by name K.Pratap Reddy, Sub Inspector of Police, Ramgopalpet, Hyderabad has filed a complaint stating that at about 4.30 PM on 02.12.2018 he received a credible information through L.Bhaskar Reddy, Sub Inspector of Police, West Zone, Task force stating that a person by name P.Shiva Kumar (accused No.1) is transporting money from Sindhi Colony to Sherilingampally in a car bearing registration No.AP 09 CR 5112 along with his driver. 2
The said car was intercepted at 5.00 PM and found Rs.70 lakhs under the mat of the car.
b) On enquiry accused No.1, who was the Director of Bhavya Cements, has informed that the said money belongs to business transaction of his company but failed to produce any documents. On further questioning he has stated that one Bhavya Adithya Prasad, his owner, contesting candidate for MLA from Sherilingampally assembly constituency has informed him to collect the said amount from Sindhi Colony, Secunderabad and hand over the same in order to distribute the amount to the voters at Sherilingampally constituency. Accordingly, he has collected the said amount from Vinod Agarwal, and was being transported.
c) The Police have seized the cash of Rs.70 lakhs, car bearing No.AP 09 CR 5112, three scarfs of TDP party, five visiting cards of P.Shiva Kumar of Bhavya Cements Limited, Aadhar Card, registration certificate of vehicle and two cell phones under the cover of confession panchanama in the presence of mediators.
d) Basing on the complaint, GD entry was made and filed a requisition before the Magistrate to obtain permission as it was 3 non-cognizable offence and on receipt of permission from the Magistrate, a case in Crime No.284 of 2018 was registered by Police, Ramgopalpet for the offence under Section 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act and investigation was taken up.
e) During the course of investigation, the Inspector of Police, examined the Sub Inspector of Police, Ramgopalpet Police Station and another Sub Inspector of Police, West Zone, Task Force, scene of offence was visited, secured the presence of mediators i.e., LWs 5 and 6, recorded the scene of offence panchanama and drawn rough sketch. Accused No.3 has produced copy of sale transactions vide receipt Nos.101 to 145 from 09.11.2018 to 30.11.2018 along with ledger accounts to prove his innocence and after completion of investigation charge sheet is filed alleging that accused Nos.1 to 5 have committed the offences punishable under Sections 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act. Aggrieved by taking cognizance of the offence against the petitioners, the present petition is filed to quash the proceedings against accused Nos.1 to 4 in C.C.No.6051 of 2019 on the file of learned XII Additional 4 Chief Metropolitan Magistrate, Hyderabad on the following grounds:
i) Even if the contents of charge sheet are accepted to be correct, no offence is made out against the petitioners punishable under Sections 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act.
ii) There is no allegation that the petitioners have offered the said amount to the voters.
iii) The amount seized is in respect of business transaction with regard to supply of cements, which the company has received in cash. The petitioner has filed copies of the documents in Annexure - II to show the money collected from various persons.
4. Now the point for determination is:
"Whether the proceedings against the petitioners-accused Nos.1 to 4 in C.C.No.6051 of 2019 on the file of learned XII Additional Chief Metropolitan Magistrate, Hyderabad, can be quashed under Section 482 of the Code of Criminal Procedure?
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5. Heard Sri T.Pradyumna Kumar REddy, learned senior counsel for the petitioners-accused Nos.1 to 4 and Sri S.Ganesh, learned Assistant Public Prosecutor.
6. Learned senior counsel for the petitioners has submitted that even if the contents of charge sheet are accepted to be correct, no offence is made out against the petitioners for the offence under Section 171-E of the Indian Penal Code and Section 123 of the Representation of People Act. It is submitted that the money seized by the Police is in respect of business, for which the receipts, ledgers and other documents are filed. On the other hand, Sri S.Ganesh, learned Assistant Public Prosecutor has submitted that all the defences raised by the petitioners will have to be raised before the trial Court and this Court cannot go into the details of the money collected, ledgers, receipts filed by the petitioners.
7. Now it is to be examined whether there is prima-facie material to fasten the criminal liability under Section 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act can against the petitioners.
8. Section 171-B of the Indian Penal Code reads as under: 6
"171B. Bribery:
(1) Whoever--
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery:
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.
9. In order to fasten the liability under Section 171-E of the Indian Penal Code, the prosecution has to place material before the Court that the petitioner either given or offering to give gratification as defined under Section 171-B of the Indian Penal Code.
10. As per the charge sheet, none of the voters were examined to speak that the petitioners have either paid or attempted to pay money as gratification for exercising vote in favour of a particular person. When the Police have seized 7 the money, the petitioners were not either distributing or attempting to distribute to the voters of the constituency, where the accused No.4 was contesting.
11. It is the case of the prosecution that the petitioners were getting the money from one Vinod Agarwal from Sindhi Colony, for distribution of money. However, Vinod Agarwal was not examined by the Police, during the course of investigation. Therefore, when prosecution has failed to examine the person from whom Rs.70 lakhs were stated to be brought, the contention of the petitioners that money seized was from their business transactions in respect of sale of cement, cannot be disbelieved.
12. Therefore, as long as there is no material, the allegations before this Court that the money was being transported for distribution to the voters and that the accused have committed the offence under Section 171-B of the Indian Penal Code, cannot be accepted.
13. In Kapil Dabar S/o. Shri Keval Ram v. State of Uttarakhand1, the Hon'ble Supreme court held as follows:
1 2013 SCC Online Utt 2863 8 "Having read entire FIR, I could not find out even a whisper in the F.I.R. about the name of the persons who were paid money (gratification) by the petitioner.
No such voters were examined under Section 161 Cr.P.C. by the Investigating officer. There seems to be no averment or prima-facie evidence to suggest that petitioner has induced any voter to exercise his electoral right in favour of any particular candidate or party. Vague allegation that accused was distributing the money to influence the election is not sufficient to constitute offence under Section 171 - B I.P.C."
14. The other offence alleged against the petitioner is under Section 123 of the Representation of the People Act. On perusal of Section 123 of Representation of the People Act, the only relevant aspect which can be connected to the facts of this case is the allegation in respect of giving gift or gratification to a voter to vote or refrain from voting in the elections.
15. In order to fasten the criminal liability under Section 123 of the People Representation Act, prosecution is expected to allege and place material to prove that the petitioners have either distributed the money or were distributing money to the voters seeking vote in favour of their candidate. The prosecution has not filed any material before the Court that the money being transported was intended for distribution to the voters in the 9 elections. The prosecution has not examined voters to the effect that they were given money to exercise their vote in favour of a particular person or at least an attempt was made to distribute the money. Merely because cash was found in the car of the petitioners, during the elections time without any basis, it cannot be alleged by Police that the said money was being transferred for distribution to the voters.
16. Bhavya Adithya Prasad, who is contesting for MLA from Sherilingampally assembly constituency on TDP Ticket was not in the car when money was seized. The prosecution failed to establish as to how the petitioners can be connected to Bhavya Adithya Prasad, who is contesting in the elections. The car was seized in Secunderabad, which is not part of the Sherilingampally MLA constituency and that the car does not belong to the contesting candidate.
17. Considering the facts and circumstances discussed above, it is clear that there is no prima-facie material in the charge sheet. If the entire charge is accepted to be correct, the offence alleged against the petitioners under Sections Section 171-B read with Section 171-E of the Indian Penal Code and Section 123 of the Representation of the People Act are made out. 10
18. Therefore, continuation of the proceedings against the petitioners in C.C.No.6051 of 2019 on the file of learned XII Additional Chief Metropolitan Magistrate, Hyderabad amounts to abuse of process of law.
19. Accordingly the criminal petition is allowed and the proceedings against the petitioners-accused Nos.1 to 4 in C.C.No.6051 of 2019 on the file of learned XII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 07.09.2022 AS