Karnataka High Court
K M Ashok Kumar vs State By on 3 December, 2021
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION No.951/2020
C/W
CRIMINAL PETITION No.827/2020
IN CRIMINAL PETITION No.951/2020
BETWEEN:
K.M. ASHOK KUMAR
S/O. LATE MURUGENDRAIAH,
AGED ABOUT 62 YEARS,
COMMERCIAL TAX OFFICER (RETD.)
RESIDING AT NO.737, 2ND FLOOR,
14TH CROSS, 3RD BLOCK,
HMT LAYOUT,
BENGALURU - 560 073. ...PETITIONER
(BY SRI.M. SHIVAPRAKASH, ADVOCATE)
AND:
STATE BY KARNATAKA LOKAYUKTHA,
POLICE DAVANGERE,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
M.S. BUILDING,
KARNATAKA LOKAYUKTHA,
DR.AMBEDKAR VEEDHI,
BENGALURU - 560 001. ...RESPONDENT
(BY SRI.B.S.PRASAD, STANDING COUNSEL FOR LOKAYUKTHA)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 18.12.2019, PENDING ON THE FILE OF
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THE PRL.DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE
(LOK) AT DAVANAGERE IN SPL(LOK) CASE NO.2/2016 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7,13(1)(d) READ
WITH SECTION 13(2) OF P.C. ACT CONSEQUENTLY TO ALLOW
THE APPLICATION FILED BY THE PETITIONER UNDER SECTION
227 AND 239 OF CODE OF CRIMINAL PROCEDURE.
IN CRIMINAL PETITION No.827/2020
BETWEEN:
S R AMANULLA SHARIFF
S/O LATE S A REHAMAN SHARIFF
AGED ABOUT 65 YEARS,
ASST COMMISSIONER OF
COMMERCIAL TAXES (RETD)
R/AT NO.47, 1ST MAIN ROAD,
SUBHASH NAGAR,
MYSORE-570007. ...PETITIONER
(BY SRI.M. SHIVAPRAKASH, ADVOCATE)
AND:
STATE BY KARNATAKA LOKAYUKTHA POLICE
DAVANAGERE REPRESENTED BY
STATE SPL PUBLIC PROSECUTOR
M S BUILDING
BANGALORE-560001. ...RESPONDENT
(BY SRI.B.S.PRASAD, STANDING COUNSEL FOR LOKAYUKTHA)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 18.12.2019, PENDING ON THE FILE OF
THE PRL.DISTRICT AND SESSIONS JUDGE AND SPL.JUDGE (LOK)
AT DAVANAGERE IN SPL.(LOK) CASE NO.2/2016 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ
WITH SECTION 13(2) OF P.C. ACT CONSEQUENTLY TO ALLOW
THE APPLICATION FILED BY THE PETITIONER UNDER SECTIONS
227 AND 239 OF CODE OF CRIMINAL PROCEDURE.
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THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.11.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
This Crl.P.No.951/2020 is filed by the petitioner/accused No.2 and Crl.P.No.827/2020 is filed by the petitioner/accused No.1 under Section 482 of Cr.P.C., for quashing the impugned order dated 18.12.2019 in Special (Lok) Case No.2/2016 for having dismissed the application filed under Sections 227 and 239 of Cr.P.C. to discharge the petitioners in both the petitions for the offences punishable under Section 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act' for short) registered in Crime No.104/2013 by the Lokayukta Police, Davanagere.
2. Heard the learned counsel for the petitioners and the learned Special Counsel appearing for the respondent-State in both the petitions. 4
3. The fact of the case of the prosecution is that the Commissioner of Commercial Taxes sent a report to the Principal Secretary, Government of Karnataka on 25.01.2008 alleging that there was a programme telecasted on 13.01.2008 by 'TV-9' Channel in the name of 'Taja Suddi' alleging that accused No.1-Amanulla Shariff, Assistant Commissioner of Commercial Taxes, accused No.2- Ashok Kumar, Commercial Tax Officer, one Rudraiah, Commercial Tax Officer and Nagaraj, Commercial Tax Officer were said to be involved with the lorry transporters by taking bribe. The entire conversation was recorded in the C.D.(Compact Disk) by the said T.V.Channel which was sent to the Commissioner of Commercial Taxes for taking action. Based upon the said C.D. received by him, he has forwarded the same to the Principal Secretary, Government of Karnataka, Finance Department, Vidhana Soudha, Bengaluru and the same 5 was referred to the Lokayukta for enquiry. Accordingly, the Lokayukta is said to have called for explanation from all the accused. Subsequently, there was a finding given that there is a prima facie case against them for proceeding with the offence. Therefore, letter has been forwarded to the Commissioner on 28.11.2013, and the Superintendent of Police, Davanagere was instructed to register the case and investigate the matter and report within three days. Based upon the letter, the Lokayukta Police registered the case against the petitioners for the above said offences. After investigation, the Lokayukta police filed a charge sheet against the petitioners for the alleged offences. After appearance of the petitioners before the Sessions Court, accused Nos.1 and 2 have moved application under Section 227 and 239 of Cr.P.C. for discharging them from the case which came to be rejected by the Sessions Judge by 6 the impugned order dated 18.12.2019 which is under challenge.
4. Sri. M. Shivaprakash, learned counsel appearing for the petitioners in both the petitions contended mainly on three grounds that the alleged incidents took place on 07.11.2007, the complaint came to be filed against the petitioners on 11.11.2013 and there is inordinate delay of about 5 years in registering the case. Learned counsel also contended that the private T.V.Channel is said to have recorded the conversation on 07.11.2007 but the same was telecasted on 13.01.2008 after lapse of 65 days of the alleged incident in the name of 'Taja Suddi'. There is every possibility of manipulating the conversations which is not ruled out. The original C.D. which was recorded by the private T.V.Channel has not been produced before the Court even as per the letter issued by the Investigating Officer to one Praveen, who is the 7 reporter of the TV-9 Channel and also the letters and remainders issued to the Editor-in-chief of TV-9 channel for summoning the C.D. which was not at all furnished by the T.V. Channel. Final letter of the Investigating Officer clearly reveals that no such CD has been given by the T.V.Channel to the Investigating Officer. Such being the case, by taking out duplicate CD, the T.V.Channel telecasted the alleged incident. The Investigating Officer has sent the same to the Truth Lab for voice comparison. The said Truth Lab has given the report on the duplicate CD which is not a primary evidence. Such being the case, there is no document to show as a secondary evidence under Section 65(b) of the Indian Evidence Act, 1872. Such being the case, the case of the prosecution is not acceptable for framing of the charge against the petitioners.
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5. Learned counsel for the petitioners also submits that the petitioner No.1 has produced the document to the Lokayukta police. During the enquiry where he has intercepted one Venkatesh, the driver of the private carrier vehicle transporting three boxes containing Sunshine Brand LPG Gas Stoves without bill. Therefore, as per the Rule he has collected 12.5% of the Tax plus penalty in a sum of Rs.9,000/- and the same was deposited into the Bank by issuing challan. Once the amount was collected it was remitted to the Bank as per law in accordance with the provisions of Commercial Tax Act. Such being the case, the question of committing any offence like demanding and accepting of bribe by the petitioners is not acceptable. The documents produced by the petitioners have not been considered, the false case has been registered against the petitioners for taking revenge only at the 9 instance of the T.V.Channel who have manipulated the incidents and telecasted.
6. Learned counsel further submits that as regards accused No.2, who has collected the tax amount in a sum of Rs.4,000/- from one Gopalaswamy, Chitradurga on 05.11.2007, the same was revealed in the Register maintained by the Commercial Tax officer. The amount collected by the officers while acting under the provisions of the Commercial Tax Act, was remitted to the Government through the Bank. Such being the case, without any material placed on record the Lokayukta police registered a false case against the petitioners only to harass them. Therefore, in view of the delay in lodging the complaint without production of original CD and delay in telecasting the incident, manipulation of the incident, would all clearly go to show that there is no offence committed by the petitioners.
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7. The learned counsel further contended that the Truth Lab has not stated that they have received the original CD for the purpose of experiment. Such being the case, the report of this Truth Lab is not conclusive. Therefore, it should be rejected. As per the report in some of the clippings there is no audio. Therefore, the report of the Truth Lab cannot be considered as evidence for the purpose of framing of charge. Learned counsel further contended that the alleged incident has been recorded in the year 2007 whereas the Truth Lab conducted the experiment in the year 2015 after lapse of eight years. Therefore, the prima facie report cannot be believed. Therefore, he prayed for quashing the criminal proceedings by discharging the petitioners. Learned counsel further submits that the conducting of the case against the petitioner officials is nothing but abuse of process of law and also public abuse.
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8. The learned counsel for the petitioners relied upon the judgment in the case of ARJUN PANDITRAO KHOTKAR Vs. KAILASH KUSHANRAO GORANTYAL AND OTHERS reported in 2020 (7) SCC 1.
9. Per contra, Sri. B.S.Prasad, learned Special Counsel appearing for the respondent in both the petitions has seriously objected the petition and contended that there was no delay in lodging the complaint. The T.V.Channel persons after telecasting the episode in the name of 'Taja Suddi' approached the Commissioner of Commercial Taxes and gave the CD to take action against the officers. Based upon the CD, he has forwarded the same to the Principal Secretary, Government of Karnataka. Thereafter, the Government of Karnataka referred the matter to the Lokayukta police for making enquiry and to report as per Section 12 of the Karnataka Lokayukta Act, 1984. The Karnataka Lokayukta has conducted a detailed enquiry 12 and given report to the Government of Karnataka. Based upon the report, a direction was issued to the Lokayukta police, Davanagere for registering the case and submitting the report. Therefore, the enquiry took sometime for the purpose of giving a finding. Thereafter, complaint came to be filed in the year 2013. Absolutely, there was no delay in lodging the complaint, as for making enquiry, some time was taken and further contended that the original CD has been received by the Commissioner of Commercial Taxes from the T.V.Channel on 25.01.2008 itself. The same was forwarded to the Government of Karnataka. Later it was sent to the Lokayukta for enquiry as per the letter which clearly reveals that the original CD is with the Lokayukta enquiry officer and direction was also issued to Investigating Officer to take the original CD from the Lokayukta as per the letter dated 11.11.2013 where one Linga Reddy, the Superintendent of Police 13 Lokayukta, Davanagere, directed the Investigating Officer to register the case and report the matter within three days and he has stated the video CD should be collected from the ADGP Karnataka Lokayukta and the same was not noticed by the Investigating Officer but he has issued notices to the Chief Editor and reporter but they have not responded. The original CD is with the Lokayukta. Subsequently, it was sent to the Truth Lab for comparison and getting the sample voice. Along with the sample voice, the report was also given by the Truth Lab, which clearly reveals and matches with the voice of accused persons and the voice available in the CD and it reveals there is prima facie material placed on record for connecting the accused with the crime. The Court cannot conduct a mini trial for considering the application for discharge and for framing of charge. The Court cannot appreciate or re- appreciate the documents on record, when the prima 14 facie material for framing of the charge is required to be considered and not for convicting or acquitting the accused persons.
10. Learned counsel further submits that the document produced regarding collection of Rs.9,000/- from one Venkateshan, cart puller and Rs.4,000/- on 05.11.2007 by the other accused is nothing to do with this case.
11. The learned counsel further contended that the conversation telecasted in TV which clearly reveals, accused persons demanded money from the TV reporter without having the knowledge that they are TV reporters, the conversation reveals that they have demanded the bribe and also accepted a sum of Rs.9,000/- from them which is not deposited in the name of any of the persons. This is altogether a different episode i.e., collection of Rs.9,000/- from 15 Venkatesh and Rs.4,000/- from Gopalaswamy. Learned Special Counsel submits that if there is any defect in the CD, that cannot be considered at this stage. It has to be considered only at the time of trial and hearing the matter on merits. Such being the case, the trial Court rightly considered the prima facie material available on record and rejected the application. Therefore, the learned Special Counsel prayed for dismissing the petition.
12. Heard the argument of the learned counsel for petitioner and Special Counsel for the Lokayuktha and perused the records. On perusal of the records which reveals that the Lokayuktha Police registered a case against this petitioner in Crime No.104/13 for the above said offences on 11.11.2013, based upon the report of the Karnataka Lokayuktha which was received by the ADGP Lokayuktha and in turn he had referred 16 the same to the Superintendent of Police Lokayuktha Davangere on 11.11.2013 on which date the FIR was registered. The case records further reveals that the TV9 Kannada News Channel said to have telecasted video of a sting operation which was done by the reporters of TV9 stating that on 7.11.2007, Davangere P.B. Road the petitioner accused No.1 being CTO and other officials were involved in demanding bribe and allowed the vehicles to ply with goods without paying taxes. Accordingly, TV9 people approached accused No.1 and others in the office of accused No.1 and requested him to release the lorry and when accused persons demanded bribe and agreed to receive Rs.9,000/- for releasing the vehicle, the TV9 people recorded the conversation and also recorded the proceedings with hidden camera and telecasted in the television and after making the CD of the same they have sent it to the Commissioner of Commercial Tax 17 Office. Accordingly, the ordinal CD along with a letter was forwarded by the Commissioner to the Finance Secretary to the Government and in turn the State Government referred the matter to the Lokayuktha for enquiry as per Section 12 of the Lokayuktha Act. In turn Lokayuktha, before making enquiry called for the explanation from the petitioner and given the report holding that there is substance in the complaint. Therefore, directed the ADGP Lokayuktha to register the case and in turn the ADGP Lokayuktha written a letter to the Superintendent of Police Lokayuktha, Davangere to register the case. The learned counsel for the petitioner contended that there is inordinate delay in registering the case and therefore it is contended that it took more than 5 years in registering the case from the date of the information. Therefore, he contended the FIR is not sustainable under the law. On perusal of the record which reveals admittedly, the 18 alleged incident took place on 7.11.2007 and the TV9 reporters recorded the conversation of demanding for the money which was telecasted in January 2008 in the name of "Taja Suddi". The commissioner of CTO who received the CD from the TV reporters on 21.01.2008 and wrote letter to the Government on 25.1.2008 where he has categorically stated that some persons came to the office of the Commissioner on 21.1.2008 and gave the CD for taking action against 4 persons. After giving the same the Commissioner of CTO wrote letter to the Principal Secretary to the Government, Finance Department and after receiving the same by the Finance Department referred to the Lokayuktha for enquiry. Accordingly the Lokayuktha took up the enquiry and during the enquiry they called the accused persons for the explanation and the accused persons gave the explanation by denying the telecasting of the episode contending that they caught hold a handcart 19 and collected Rs.9000/- as penalty by issuing receipt and deposited the same to the treasury and after due enquiry the Lokayuktha the Enquiry Officer given the report holding that the offence was committed by the accused persons vide report dated 24.9.2013. The said report was received by the ADGP Lokayuktha on 11.11.2013. Inturn he has referred the same to the Superintendent of Police, Lokayuktha, Davangere for registering the case and stated that he requested to collect the CD from ADGP office vide letter dated 11.11.2013. Based upon this referred letter the Lokayuktha Police registered the case on the same day i.e., on 11.11.2013. It cannot be said there is any delay in lodging the complaint as higher officials involved in the crime. The Government not taken any immediate action on the CD produced by the TV9 Channel. But in fact they conducted detailed enquiry through Lokayuktha Organization and Lokayuktha 20 Organization after conducting enquiry held that there is substance in the TV9 telecasting the episode of these accused persons accepting the bribe and based upon the report the case came to be registered. The reply of the petitioners were also produced which reveals that the petitioners have denied the episode telecasted by the TV9 by giving explanations and after examining the witnesses including the petitioner the report came to be issued. Therefore it cannot be said that there is inordinate delay in lodging the complaint making a preliminary enquiry which is permissible under law in view of the principle laid by the Hon'ble Supreme Court in Lalitha Kumari's case. Therefore the contention of the learned counsel for the petitioner contended that there was 65 days delay in telecasting this episode and more than 5 years delay in lodging the complaint cannot be acceptable.
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13. Another contention raised by the learned counsel for the petitioner is that the Original CD was not sent to the Truth Lab and the Investigating Officer was unable to get the same from TV9 channel and the copy of CD was sent to the Truth Lab, therefore the opinion of the Truth Lab cannot be relied and acceptable. In this regard the learned Special counsel has submitted the original CD has been produced by TV9 reporters which can be seen from the letter of Commissioner of CTO dated 25.1.2008. The original CD has been forwarded to the Government i.e., Finance Secretary and in turn the same was forwarded by the Finance Secretary to the Lokayuktha for submitting the report along with the CD. It is also seen from the letter and subsequently the Lokayuktha report has been submitted to the ADGP Lokayuktha and even in the said letter dated 11.11.2013 also it refers to collect the video CD from ADGP office of Lokayuktha. 22 Therefore it is contended the said original CD has been sent to the Truth Lab for voice comparison with voice sample of the accused and opinion has been received, which confirms the voice of the petitioners were found in the video CD matching with the sample voice of the accused.
14. On perusal of those records which is produced by learned counsel for the petitioner clearly reveals the letter of the commissioner of CTO dated 25.1.2008 clearly refers the CD has been produced by TV reporters on 21.1.2008 requesting for taking action and the same was annexed along with the letter sent to the finance Department in turn the Finance Secretary sent the requisition to the Lokayuktha and the Lokayuktha Enquiry Officer after the enquiry submitted report and the ADGP forwarded the said report with instruction to register a case against the petitioner at Superintendent of Police, Davangere where the ADGP 23 of Lokayuktha referred the matter to the Superintendent of Police, Lokayuktha, Davangere. Inturn the Superintendent of Police, Lokayuktha Davangere wrote letter dated 11.11.2013 for registering the case and it has stated in the letter directing the Police Inspector to receive the Video CD from the office of ADGP Lokayuktha which reveals the original video CD has been verified by Lokayuktha and later it was sent to the Truth Lab for obtaining the voice opinion. Therefore, the contention of the petitioner counsel that inspite of writing letter by the Investigating Officer the TV9 people both Reporter as well as Editor-in-chief did not respond and therefore the original CD was not at all available cannot be acceptable. Even otherwise once CD was sent to the Truth Lab until examining, the Investigating Officer and the scientific expert from the Truth lab, it is not possible to presume whether the Truth lab examined 24 the voice sample with the sample in the CD or from original CD or copy of the CD until cross examination of the witnesses by the counsel during the trial. But the truth lab already given opinion with the comparison of voice sample that voice sample is that of accused persons which was found in the CD. Therefore, the contention of the petitioner counsel cannot be acceptable as there is no original CD.
15. That apart the learned counsel contended there is no certificate under Section 65B (4) of evidence Act, therefore the Truth Lab certificate is not acceptable and he has relied upon the judgment of Hon'ble Supreme Court reported in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal and others reported in 2020 (7 SCC page 1). In the said case Hon'ble Supreme Court has clarified in respect of the necessity of the certificate under Section 65 (4) of evidence Act. Here in this case, the original CD is 25 already received from the TV9 officials and it was forwarded to the government and later further forwarded to the Lokayuktha and an enquiry was held. Thereafter as case was registered and then voice sample of the accused and the video CD has been referred to the Truth lab and opinion has been obtained. Such being the case at this stage, case of the prosecution and materials placed on record cannot be said as there is no case for conviction of the accused persons. The Hon'ble Supreme Court in case of Union of India Vs Prafulla Kumar Samal & Another laid down the principles in respect of frame get charged as under:
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) 26 Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while (1) A.I.R. 1967 S.C. 740.
(2) [1969] 2 S.C.R. 520.
giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the 27 matter and weigh the evidence as if he was conducting a trial."
In view of the judgment of Hon'ble Supreme Court and on perusal of record there is sufficient material placed on record to frame the charges against the accused having prima facie material against them and the Court cannot expect the material for conviction or acquittal at this stage. Therefore, the contention of learned counsel for the petitioner cannot be acceptable that the opinion of the truth lab should be thrown out without going to the evidence and examining the witnesses.
16. Therefore looking to the entire documents on record there are sufficient materials placed on record, to proceed against the petitioners for framing of the said charges and proceed with the trial and the petitions are devoid of merits and liable to be dismissed.
28Accordingly both the petitions filed by accused Nos.1 and 2 are hereby dismissed.
Sd/-
JUDGE KTY/AKV