Karnataka High Court
Sri Ramesh K T vs State Of Karnataka on 26 February, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION NO.10799 OF 2023
BETWEEN:
SRI. RAMESH K. T.
S/O THAMMAIAH,
AGED ABOUT 40 YEARS,
PREVIOUSLY WORKING AS
POLICE SUB-INSPECTOR,
HULIYUR P.S.,
TUMAKURU,
PRESENTLY WORKING AS
I/C. INSPECTOR,
CID - BENGALURU,
BENGALURU,
PERMANENT R/O:
KYATANAYAKANA HALLI,
MUDDENAHALLI POST,
CHIKKANAYAKANA HALLI TALUK,
TUMAKURU - 572 228.
...PETITIONER
(BY SRI SANDESH J. CHOUTA, SENIOR ADVOCATE FOR
SRI. SUNIL KUMAR S, ADVOCATE)
2
AND:
1. STATE OF KARNATAKA
BY ANTI-CORRUPTION
BUREAU P. S.,
TUMAKURU.
NOW BY KARNATAKA LOKAYUKTA,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
KARNATAKA LOKAYUKTA,
HIGH COURT COMPLEX,
BANGALORE - 560 001.
2. SRI. C. R. GIRISH,
S/O C. M. RANGASWAMAYYA,
AGED ABOUT 35 YEARS,
OCC-BUSINESS, JOGIHALLI,
CHIKKANAYAKANAHALLI,
TUMAKURU - 572 214.
...RESPONDENTS
(BY SRI B. B.PATIL, SPECIAL COUNSEL FOR
R1/LOKAYUKTHA
R2-SERVED, UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR AND
COMPLAINT IN CRIME NO.08/2021 REGISTERED BY THE
RESPONDENT - ANTI CORRUPTION BUREAU - NOW BY
KARNATAKA LOKAYUKTA, DATED 04/08/2021 FOR OFFENCE
P/U/S 7(a) OF THE PREVENTION OF CORRUPTION ACT-1988
WHICH IS NOW PENDING BEFORE THE HONBLE VII ADDL.
DIST AND SESSIONS JUDGE, TUMAKURU VIDE ANNEXURE-
A AND A1.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 31.01.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
3
ORDER
This petition is filed by the petitioner-accused No.1 under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. for quashing the FIR in Crime No.8/2021 registered by the then Anti Corruption Bureau (ACB) now Karnataka Lokayuktha for the offence punishable under Section 7(a) of Prevention of Corruption Act, 1988 (for short 'P.C. Act).
2. Heard the learned Senior counsel for the petitioner and learned Special counsel for the respondent No.1-Lokayuktha.
3. Respondent No.2 served unrepresented.
4. The case of the prosecution is that on the complaint of respondent No.2, the police registered the FIR, it is alleged by the complainant that the petitioner being Sub-Inspector of Huliyar Police Station, Tumakuru said to be demanded Rs.4,00,000/- for 4 releasing his friend Lokesh on the complaint filed by the Manager of the Muthoot Finance namely Shivakumar. It is alleged that on 30.07.2021, he went to the Huliyar Police Station to enquire about the arrest of his friend Lokesh and for releasing his friend Lokesh as he said to be cheated the Muthoot Finance and the said amount has been spent by him and for that, the petitioner being the Sub-Inspector demanded Rs.10,00,000/- for releasing Lokesh. The complainant informed that that he will pay Rs.1,00,000/- and came back from the police station.
5. Again on 01.08.2021, the said Lokesh telephoned to the complainant and told that at least he should pay Rs.4,00,000/- to the police, otherwise, they will fix him in the criminal case. The complainant met the PSI-the petitioner and he told that he brought only Rs.2,00,000/- and said that he will pay another Rs.2,00,000/- within a week. Then the petitioner 5 informed one Dafedar-Mukthiyar to collect the amount of Rs.2,00,000/- from the complainant. The said conversation was recorded by the complainant then the said Mukthiyar took the complainant to the backside of the police station, received Rs.2,00,000/-, then contacted the petitioner through telephone. Then the said Mukthiyar took the complainant towards the fruit stall and he was not ready to receive the money, thereafter a signal was given by the complainant to the police. Thereafter the Mukthiyar brought Lokesh and released him to the complainant. Then on 3.8.2021, one Chethan, the Police Constable telephoned to the Lokesh and demanded Rs.2,00,000/-. Therefore, the complainant is not willing to pay remaining Rs.2,00,000/-, hence, complaint came to be filed to the ACB police and in turn the police registered the FIR.
6. Subsequently, the Police were trying to trap the petitioner, but trap was failed on 4.8.2021 and 6 again they tried to trap the petitioner on 5.8.2021, the trap was failed and the police took up the investigation which is under challenge.
7. The learned Senior counsel for the petitioner has contended that there is no demand and acceptance by the petitioner. The trap was failed. When there is no demand and acceptance of bribe, the question of proving the case does not arise. The Hon'ble Supreme Court in the case of Neeraj Dutta vs. State (GOVT. OF N.C.T. OF DELHI) reported in (2023) 4 SCC 731 has held that the demand and acceptance is sine qua non to attract Section 7 of the P.C. Act. Therefore, when there is no trap, the question of filing charge sheet does not arise and hence, prayed for quashing the criminal proceedings. In support of his case, the learned counsel has relied upon the judgments of the Hon'ble Supreme Court in the cases of Neeraj Dutta stated supra and Soundarajan vs. State in 7 Crl.A.No.1592/2022 and the judgement of the Co-
ordinate Bench of this Court in the case of
Thippeswamy vs. State and Another in
W.P.No.15644/2022 (GM-RES).
8. Per contra, Sri B.B.Patil, learned Special counsel appearing for the Lokayuktha has vehemently contended that there was demand made by the petitioner which was recorded in the mobile. The mobile conversation reveals that he has demanded Rs.4,00,000/-from the complainant. Even the demand itself has constituted the offence under Section 7 of P.C. Act as per the illustration under Section 7 of P.C. Act. Whether the bribe obtained or accepted or attempt to accept were also constitute an offence. There is a clear demand, therefore, Section 7 of the P.C. Act attracts. Learned counsel also contended that the Hon'ble Supreme Court has not considered in respect of 8 acceptance and failure of trap which is grey area. Therefore, he prayed for dismissing the petition.
9. Having heard the arguments and on perusal of the records, the allegation against the petitioner is that the petitioner being Police Sub-Inspector of Huliyar Police station demanded bribe of Rs.4,00,000/- for releasing one Lokesh who is the friend of the complainant. The complainant said to be paid Rs.2,00,000/- to the one Mukthiyar-accused No.2 and they demanded further Rs.2,00,000/- therefore, the complaint came to be filed on 4.8.2021. The police set up a trap and waited near the police station, but the complainant not able to meet the PSI. On that day the Additional S.P. of Tumakuru visited the police station and felt that there is no chances of receiving the money by the accused. hence, they returned back to the Police Station.
9
10. It is further alleged that on 5.8.2021, once again, the police team tried to trap the petitioner, went near the police station, waited from morning 9.45 a.m. to 12.30 p.m., the accused came to the Police Station, but sent out the complainant for lunch and once again the trap was failed. Though there is conversation between accused No.2 and the complainant, but there is no conversation held between accused No.1-the present petitioner and the complainant.
11. On verification of the pre trap panchanama prepared by the Police on 4.8.2021, the complainant has stated that accused No.1 demanded Rs.4,00,000/- and he has agreed to give Rs.2,00,000/- and he took Rs.2,00,000/- and went to the Police station, but he has instructed accused No.2-Mukthiyar to receive the same. But there is no telephonic conversation recorded by the complainant. However, the complainant has stated that accused No.2-Mukthiyar took him to the a 10 fruit shop and met one Zabi and asked to give money later he has taken to one Mobile shop, one Rafiq came and received the money etc. But no such conversation held between accused No.1 and the complainant. Respondent No.2 had conversation with accused No.2, but accused No.2 has stated that he has been instructed by his Saheb, but there is no reference that this petitioner demanded money from the complainant. Even after registering the FIR, the complainant went to the Police Station and he never met accused No.1-the present petitioner, stayed outside the Police Station. On 4.8.2021, the Additional Dy.S.P. said to be in the Police Station. Therefore, once again he was unable to meet accused No.1 and there is no demand by the present petitioner at that time and the trap was failed.
12. On 5.8.2021, once again the police team along with the complainant, panch witness were all went near the police station, but there is no successful 11 trap and also there is no conversation between accused No.1 and the complainant and on that day also there is no demand made by the accused. The complainant met accused No.2 and he was unable to pay the money and trap was failed.
13. The learned Senior counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Neeraj Dutta stated supra has held that the demand and acceptance are sine qua non for proving the case punishable under Section 7 of the P.C. Act. The Hon'ble Supreme Court has held at paragraph No.3 that proof of demand is sine qua non for the offence to be established under Section 7(13)(1)(d)(ii) of the Act and dehors the proof of demand, the offence under two Sections cannot be brought home. Mere acceptance of any amount allegedly by way of illegal gratification of recovery there of in the absence of proof of demand could not be 12 sufficient to bring home the charge under Section 7, (13)(i)(ii) of the Act. After the judgment of the constitution Bench of the Hon'ble Supreme Court, once again the Division Bench of the Hon'ble Supreme Court in the subsequent judgment of Neeraj Dutta's case, has considered the legal position at paragraph No.8 of the judgment and finally at paragraph No.10 has held that:
" The demand for gratification and the acceptance there of are sine qua non offence punishable under Section 7 of P.C. Act"
14. Based upon the above said judgment of the Hon'ble Supreme Court, in the another judgment by the same Bench in the case of Soundarajan, stated supra, the Hon'ble Supreme Court has taken the similar view at paragraph No.9 of the judgment which is as under: 13
"9. We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof."
15. The Co-ordinate Bench of this Court in the case of P.Manjuanth vs. State by Karnataka Lokayuktha and Another reported case in W.P.No.10027/2022 (GM-RES) dated 16.11.2022 has also taken similar view and quashed the criminal proceedings. Subsequently, the same Co-ordinate Bench in a similar case in W.P. 15644/2022 in the case of Thippeswamy B.M. vs. State by Karnataka 14 Lokayuktha and Another dated 13.1.2023, a trap was failed and the Co-ordinate Bench has quashed the FIR.
16. In view of the judgment of the Hon'ble Supreme Court and Co-ordinate Bench of this Court, this Court in the case of N. Thejas Kumar vs. State and Another in W.P.No.915/2022 (GM-RES) dated 21.03.2022 also held that the demand and acceptance is sine qua non for proving the charges against the accused for the offence punishable under Section 7 of the P.C. Act.
17. The respondent counsel has relied upon the judgment of the Mumbai High Court in the case of Pandurang Shinde vs. State of Maharashtra reported in 2018 SCC OnLine Bom 881 and the judgment of Madhya Pradesh High Court in the case of 15 Rajendra Kumar Singh vs. State and others dated 03.07.1998.
18. To the fact and circumstances of the case, the said judgments which are delivered by the Madhya Pradesh High Court and Mumbai High Court are not applicable to the case on case, since the Constitutional Bench of the Hon'ble Supreme Court in the latest judgment in the case of Neeraj Dutta has twice passed the judgment and the subsequent Division Bench of the Hon'ble Supreme Court has categorically held that demand and acceptance are sine qua non for constituting the offence under Section 7 of P.C. Act. That apart, the Co-ordinate Bench in the case of Thippeswamy stated supra has quashed the criminal proceedings in similar set of facts.
19. Here in this case, the demand was not at all shown in any telephonic conversation except the oral 16 complaint of the complainant and trap also not successful for twice. Such being the case, there is no case made out against the accused for conducing investigation for the offence punishable under Section 7 of the P.C. Act. Therefore, the petitioner has made out a case for quashing the FIR.
20. Accordingly, the petition is allowed. The FIR against the petitioner in Crime No.8/2021 registered by the then ACB, Tumakuru, now pending in Lokayuktha is hereby quashed.
Sd/-
JUDGE GBB CT:SK