Bangalore District Court
A V Umapathi vs Registrar Karnataka Lokayutha on 24 February, 2025
1 Crl. Appeal No.2129/2024
KABC010332292024
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82)
:Present:
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to former and elected MPs/ MLAs in the State of
Karnataka)
Dated this the 24th day of February, 2025
Crl.A. No.2129 / 2024
APPELLANT: Sri A.V.Umapathi
S/o late Veeranagappa
Aged about 77 years
Ex-Member of Legislative
Assembly, Holalkere
Constituency
R/at. Holalkere Road
Chitradurga-577 501
(Sri M.P.Srikanth, Advocate for
Appellant)
V/s
RESPONDENT The Registrar
2 Crl. Appeal No.2129/2024
Karnataka Lokayukta
M.S.Building
Dr.B.R.Ambedkar Veedhi
Bengaluru-560 001
(Sri S.S.Hiremath, Learned
Special Public Prosecutor for
Respondent)
JUDGMENT
This criminal appeal is filed under Section 374(3) of Cr P.C., by the appellant who was arrayed as accused person in CC.No.24083/2024 dated 25.11.2024 on the file XLII Addl. Chief Judicial Magistrate, Bengaluru, wherein the appellant was convicted and sentenced to undergo simple imprisonment for a period of 3 months and a fine of Rs.1,000/- and in default of payment of fine, he was further sentenced to undergo a simple imprisonment for a period of one month.
2. The parties are addressed to their original rankings as that of the trial court for the sake of convenience.
3 Crl. Appeal No.2129/2024
3. Being aggrieved by the impugned order of Judgment and conviction, present appeal has been preferred.
4. The genesis of the above case is that the appellant herein was the accused and the respondent, Registrar, Karnataka Lokayukta had set the criminal law into motion by filing written complaint contending that one Mr.Thipperudrappa of Chitradurga has filed complaint against appellant/accused Mr.Umapathi, Ex-MLA of Holalkere constituency, before the Hon'ble Lokayukta, Karnataka alleging that the appellant had not made disclosures in a proper manner of his assets and liabilities statement pertaining to the year 2004- 2005 and 2005-2006 and certain false declaration were made in the aforesaid assets and liabilities. On the basis of the same, a complaint came to be registered bearing No.COMPT/LOK/BD/54/2007/ ARE-2. On conducting of enquiry, the then Hon'ble 4 Crl. Appeal No.2129/2024 Lokayukta vide order dated 27.5.2008 had come to a conclusion that the appellant/accused had furnished false declaration in the statement of assets and liabilities which he had filed in Form No.4 before Lokayukta pertaining to the year 2004-05 and 2005-
06. Accordingly, it was held by the Hon'ble Lokayukta that the appellant/accused had committed an offence punishable u/s.177 of IPC and by invoking the provisions of Section 14 of Karnataka Lokayukta Act, 1984 (hereinafter referred to as Lokayukta Act in short) had directed the Registrar of Karnataka Lokayukta to lodge the complaint in this regard. Accordingly, a private complaint came to be filed before the learned Magistrate and the trial court had dispensed with recording of sworn statement since the complaint was lodged by a public servant. After perusing the materials available on the record, the learned Magistrate had come to a conclusion that there were 5 Crl. Appeal No.2129/2024 sufficient materials to proceed against the accused and accordingly, necessary summons came to be issued. On receipt of summons, the accused had appeared before the court and later on he was enlarged on bail. On recording of the plea, the appellant/accused had pleaded not guilty and had claimed to be tried. Accordingly, necessary plea of the accused person came to be recorded.
5. The prosecution in order to prove its case got examined Registrar, Karnataka Lokayukta as PW.1 and de-facto complainant Thipperudrappa as PW.2 and another witness C.Thipperudrappa the Sub- Registrar was examined as PW.3 and documents Ex.P1 to P16 were marked on behalf of the prosecution and they had closed their side. The statement of the accused/appellant came to be recorded as contemplated under section 313 of Cr.P.C, wherein he had denied all the incriminating materials which were 6 Crl. Appeal No.2129/2024 available against him. The accused had not preferred to lead any defence evidence. After hearing both the parties on merits, the trial court was pleased to pass an order of conviction against the appellant/ accused person as mentioned supra.
6. Being aggrieved by the same, the present appeal is preferred by contending that the impugned judgment and order of conviction is not maintainable under the eyes of law or facts and is liable to be dismissed in limine. The learned counsel for the appellant has also contended that the court had not appreciated the cross-examination of the witnesses in proper perspective and though P.W.1 L.Subramanya has admitted in his cross-examination that he does not have any personal knowledge about the case, he had lodged the complaint on the basis of alleged documents, the same was not considered in proper perspective. The appellant has also contended that 7 Crl. Appeal No.2129/2024 even P.W.3 Thipperudrappa, Sub-Registrar, Chitradurga who has produced certified copies of sale deeds of properties of appellant has feigned his ignorance about the facts of the case. As such, it has been argued at length that the basic ingredients of Section 177 of IPC were not proved by the prosecution. It has also been argued that in order to establish the provision of Section 177 of IPC, basically, the prosecution has to prove that the accused is legally bound to disclose certain facts as envisaged in Section 43 of Indian Penal Code and also the information was related to the matter which would cover the provisions of Section 39 or Section 40 of IPC. It is further contended by the learned counsel for Appellant that other important aspects which the prosecution was required to establish was with respect to falsity of the information or the information which was furnished was false as to the knowledge of the accused. It is 8 Crl. Appeal No.2129/2024 argued that without establishing the aforesaid aspects the impugned order of conviction cannot be sustained and hence the orders passed by the by the trial court was erroneous.
7. The appellant has also contended that the assets and liabilities for the year 2004-05 and 2005-06 were submitted on 23.11.2005 as per Ex.P7 and on 8.9.2006 respectively. However, it is submitted that the appellant had purchased the properties at Ex.P9 and Ex.P11 on 30.1.2004 and 7.5.2004 and further on 27.4.2005 respectively. It has also been submitted that by oversight, he has not mentioned the property in his assets and liabilities as enumerated in Ex.P7 which at best could be termed as minor discrepancy. The act of the appellant was only due to inadvertence and he had omitted to mention the same under Ex.P.8 for the subsequent year. He has also contended that the property under Ex.P.10 was purchased on 9 Crl. Appeal No.2129/2024 7.5.2004 and property as per Ex.P.11 was purchased on 27.4.2005. It is his contention that the aforesaid properties were adjacent to each other and in order to prove the same, if only the schedule mentioned in the Sale deeds are looked into the same would indicate that it was adjacent properties. As such, it is argued that he had disclosed about the properties under Ex.P.10 and Ex.P.11 as site measuring 150 x 130 feet in statement of assets and liabilities. It is also contended that irrespective of the same, the trial court has not considered the same in proper perspective. It has also been submitted that with respect to LIC policy, the appellant has purchased two LIC policies in Ex.P.8 for the year 2005-06 and the said information was provided by the appellant before Hon'ble Lokayukta at all point of time, but due to oversight, the same was not mentioned in the statement for the year 2004-05. Accordingly, the said omission was without 10 Crl. Appeal No.2129/2024 any intention and it was also brought to the notice of Lokayukta by filing objections as per Ex.P3 at the earliest point of time.
8. It is also argued by the Appellant that with respect to LIC policies he had furnished details as per Ex P8 for the year 2005-06 and the said information was provided to Hon'ble Lokayukta during the period when there was no allegations being leveled against the Appellant herein which was during the period 2005-06. It is also argued that due to oversight the same was not mentioned in the previous year statement which was furnished for the year 2004-05. It is further argued that the fact of filing false declaration and omission to furnish information was succinctly covered in the authority of Hon'ble High Court of Karnataka reported in ILR 2012 KAR 4393 (Sri.Veeranna Vs. State of Karnataka, represented by its Chief Secretary and another) which was not properly appreciated and the 11 Crl. Appeal No.2129/2024 court had unfortunately did not appreciate the contentions of the appellant since the question of law which was involved in the aforesaid judgment was quite similar to the case on hand. Further, it has been contended that the trial court places is reliance on Section 14 of Karnataka Lokayukta Act 1984. However, the bare reading of the provision would make it clear there has to be an investigation about the commission of offence by the Hon'ble Lokayukta or Upa- Lokayukta as the case may be and upon investigation they should be satisfied about commission of offence by the Public Servant and hence public servant was required to be prosecuted in a court of law. However, the trial court has not considered the same in proper perspective and the trial court had failed to consider the facts which were available with respect to false representation, wrong representation, and omissions. By pointing out the said aspects, the 12 Crl. Appeal No.2129/2024 impugned judgment has been assailed by the appellant herein.
9. On request, the learned SPP Sri.S.S.Hiremath has put his appearance and has defended the impugned judgment and order of conviction passed by the trial court. It is submitted by the learned SPP that initially, the contentions urged by the Appellant were all considered by the then Hon'ble Lokayukta, and only after carefully considering the materials on record he had arrived at a definite conclusion that the ingredients of Section 177 was attracted. It has also been argued at length that the impugned order does not suffer from any legal infirmities and all the grounds now urged were in fact agitated before the trial court. Accordingly, he submits that there is no error apparent on record which calls for interference by this court. Accordingly, he requests the court to dismiss the appeal.
13 Crl. Appeal No.2129/2024
10. Heard arguments of both parties and secured the trial court records.
11. The point said to arise for my consideration are as follows.
(1) Whether the trial court had erred in coming to conclusion that the provisions of Section 177 are attracted against the appellant/ accused No.2?
(2) Whether the trial court has failed to appreciate the oral and documentary evidence in proper perspective?
3) Whether the trial court had erred in failing to appreciate that the charge which was framed was not proper and hence the trial itself is vitiated?
4) Whether the trial court had erred in coming to conclusion that the act of accused had constituted an offence under section 177 of IPC which warrants interference by this court?14 Crl. Appeal No.2129/2024
(5) What order?
12. My answer to the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: In the Negative Point No.5: As per final order for the following:-
REASONS
13. Point No.1 to 4:- Shorn of unnecessary fact, the fact in narrow compass is that a criminal case was initiated on the basis of the written information filed by the Registrar of Karnataka Lokayukta, wherein it was contended that the appellant / accused had not furnished necessary details in his assets and liabilities submitted for the year 2004-05 and for the year 2005-
06. An inquiry was being made based on the complaint filed by PW2 Thipperudraswamy and the then Hon'ble Karnataka Lokayukta had arrived on a conclusion that the appellant/accused had committed offence 15 Crl. Appeal No.2129/2024 punishable under Sec.177 of IPC and necessary recommendations were made to the Registrar to lodge a complaint. Based on the same, complaint came to be filed and the court after complying statutory bound obligations had proceeded to record the plea and later on the evidence for the prosecution was recorded and on completion of the trial, the appellant / accused was convicted for the aforesaid offence.
14. Before adverting to the aforesaid aspects, the entire evidence which has been recorded before the trial court is to be recapitulated, which is are as follows:
PW1 L.Subramanya is the Registrar of Karnataka Lokayukta who has deposed in consonance with the private complaint that has been lodged before the trial court. It is his evidence that they had lodged a 16 Crl. Appeal No.2129/2024 complaint as per Ex.P.1 on the basis of the complaint which was filed by Ex-MLA M.B.Thipperudrappa to the Lokayukta with respect to non-
disclosure of proper information in the assets and liabilities of the appellant/accused pertaining to the year 2004-05 and 2005-06. In his evidence he has in detail narrated about the materials which were not disclosed by the accused/appellant.
During the course of cross-
examination he has admitted that the post of Hon'ble Lokayukta was a Constitutional Post and he was not being paid with salary, but with honorarium. He has also admitted that the Lokayukta was not 17 Crl. Appeal No.2129/2024 considered as Government servant under the Lokayukta Act. Further, he has admitted about the fact that he does not have personal knowledge about the above case. He has admitted of complying the directions of the Hon'ble Lokayukta as per Ex.P.5. He has also admitted that prior to lodging the private complaint he has not obtained necessary prior permission from the Hon'ble Speaker as contemplated under Sec.197 of Cr.P.C. and he has volunteered that since there is deemed sanction under Sec.14 of Karnataka Lokayukta Act, he had not obtained necessary sanction.18 Crl. Appeal No.2129/2024
Apart from that nothing much has been elicited from him.
PW2 Thipperudrappa is the defacto complainant who has deposed that on 12.7.2007 he had lodged complaint against accused A.V.Umapathi before the Hon'ble Lokayukta for the reason that he had amassed assets disproportionate to his income. He came to know about the said aspect on enquiry being made at the Lokayukta office and later on the accused had filed the reply for which he had necessary rejoinder. He has identified the certified copies of the sale deeds which he had enclosed along his complaint and other 19 Crl. Appeal No.2129/2024 documents. During the course of cross-examination nothing much has been elicited from him.
PW3 C.Thipperudrappa is the senior Sub-Registrar at Chitradurga, who has produced certified copies of the sale deeds which were marked as Ex.P.13 to P.16. During the course of cross-examination apart from denial nothing much was elicited from him.
15. When the entire factual aspects of the case is carefully appreciated, the fact which is required to be considered is whether the returns filed in the assets and liabilities pertaining to the year 2004-05 and 2005-06 were not proper and appellant / accused had intentionally suppressed certain facts which he was required to disclose under the provisions of law. Prior 20 Crl. Appeal No.2129/2024 to considering the said aspects the court is required to consider the burden which is upon the accused/ appellant to furnish the necessary returns pertaining to the financial year. It is settled principle of law that all the Members of Legislative Assembly and Members of Parliament who are termed as public servants are required to furnish their assets and liabilities of the particular year within stipulated period to the Hon'ble Lokayukta. In the above said case a serious question of law has been raised with respect to the authority of Hon'ble Karnataka Lokayukta to obtain necessary information i.e., assets and liabilities. The learned counsel appearing for the appellant has also argued at length with respect to the powers of Lokayukta to obtain necessary details with respect to the assets and liabilities.
16. On careful appreciation of the entire materials on record it is noticed that the main 21 Crl. Appeal No.2129/2024 allegation which has been leveled against the appellant/ accused herein is of furnishing false information to Lokayukta authorities. During the course of argument and also before the trial court, the learned counsel for appellant had raised various technical grounds with respect to competency of Hon'ble Lokayukta to direct the Registrar of Lokayukta to lodge a complaint against appellant/accused.
17. It is the submission of the learned counsel for appellant/accused that the Hon'ble Lokayukta cannot be considered as Public Servant and more so he cannot be empowered to seek details pertaining to assets and liabilities at the hand of the appellant/ accused. Prior to adverting to the said aspects, the court has taken into account of the materials on which the allegations has been leveled. For instance, the document i.e., the Assets and Liabilities for the year 2004-05 which was filed before the Lokayukta 22 Crl. Appeal No.2129/2024 Authorities is at Ex.P.7. The main bone of contention which has occurred in the above case is with respect to non-declaring the amount in the Fixed Deposit, non- declaration of LIC policy and non-declaration of properties. The very same allegation has been leveled with respect to furnishing of information in the Assets and Liabilities as per Ex.P.8 for the year 2005-06. For better appreciation the same, the court has culled out the details of the materials which is alleged to have been not disclosed in the information furnished by the appellant/accused is as follows:
Sl. Details of Documents 2004-05 Remarks Exhibits No.
1. Deposit in Vijaya Not NA NA Bank, Chitradurga, furnished Apex Bank, Vidhana Soudha
2. LIC Poilicy Not But furnished NA furnished before Election Offficer as two LIC policy
3. Not mentioned Not But furnished NA liabilities furnished before Election officer
4. Property in sale deed Not Ex.P.13 dated 30.1.2004 (40 furnished X 80 ft) katha No.1991 Assessment 23 Crl. Appeal No.2129/2024 No.4190
5. Sale deed dated Not Ex.P.14 7.5.2004 furnished Katha No.2920 Sl. Details of Documents 2005-06 Remarks Exhibits No.
1. Deposits in SB Not Account of Apex furnished Bank, Vidhana Soudha
2. Not mentioned details Not of 5 acres of land furnished
3. Site measuring 130 X Not Ex.P.15 50 ft., purchased furnished under sale deed dated 27.4.2005 Katha No.2143 and 2144
4. Sale deed dated 30.01.2004 Site measuring 40X 180 ft., Katha No.1991, Assessment No.4190
5. Sale deed dated Not Ex.P.14 7.5.2004 furnished Katha No.2920
18. Now the aforesaid details are required to be considered in detail with the declaration made by the Appellant. As noticed from the assets and liabilities column pertaining to the year 2004-05 which was filed on 23.11.2005 the column No.6 speak about the 24 Crl. Appeal No.2129/2024 immovable properties and in that column No.6(a) describes as follows:-
6. ಸ್ಥಿರಾಸ್ತಿಗಳು : ಕೃಷಿ ಜಮೀನು ಅ. ಕೃಷಿ ಜಮೀನುಗಳು : 60 ಎಕರೆಗಳು (10 ಎಕರೆ ಚಿತ್ರದುರ್ಗದಲ್ಲಿ 50 ಎಕರೆ ಹಾವಿನಹಟ್ಟಿ) ತಾಃ ಹೂಳಲ್ಕೆರೆನಲ್ಲಿದೆ.
ಆ. ಕಟ್ಟಡ ನಿರ್ಮಿಸಿದ : 150 X 130 ವಿಸ್ತೀರ್ಣದ ನಿವೇಶನ, ಕೃಷಿಯೇತರಃ ನಿವೇಶನಗಳುಃ 180 X 35 ವಿಸ್ತೀರ್ಣದ ನಿವೇಶನ.
ಇ. ಜಮೀನುಗಳು : ಇಲ್ಲ
ಇ. ಕಟ್ಟಡಗಳು ಇಲ್ಲ
ಈ. ಇತರೆ ಸ್ಥಿರಾಸ್ತಿಗಳು : ಇಲ್ಲ
(in vernacular language)
19. Further in column No.8 the information is furnished with respect to liability wherein it has been stated that the wife of the appellant/accused by name R.Yashodha Devi had availed loan at State Bank of India, Urban Co-Operative Bank, Hiriyuru and Onake Obavva Co-Operative Bank, Chitradurga. It is relevant to note the extent of the loan or liability has not been mentioned. Now coming with respect to the details which has been furnished at Ex.P.7 and in particularly 25 Crl. Appeal No.2129/2024 at Column No.6 the learned counsel for appellant has vehemently argued that categorically the details of site property has been declared. As already noticed above, the dimension of the site which stood in the name of appellant/accused has been mentioned as 150 X 130 ft., and 180 X 35 ft. In order to consider the said aspect, the document which has been produced is required to be considered. Ex.P.13 is the sale deed which was executed on 30.1.2004 in the name of the Appellant/ accused with respect to a site property bearing Katha No.1991 Assessment No.4190 situated at 3rd Block, Holalkere Road, Chitradurga Town measuring East to West 40 ft., North to South 180 ft. If the aforesaid aspect is compared with the description which has been mentioned, it indicates that information has been furnished with respect to owning a site of dimension 180X35 ft. However, the dimension as per the sale deed would indicate that it was 40X180 26 Crl. Appeal No.2129/2024 ft., which once again is not correct. With respect to another sale deed at Ex.P.14 which was executed on 7.5.2004 indicates that the appellant/accused had purchased another land at 5th Block, V.P.Extension, 1st Cross Road, Near Bada Makhan, Chitradurga Town, D.No.4305, Katha No.2920, assessment No.9106/7683 measuring East to West -towards East-124 ft., towards West - 65 ft., and North to South towards North 145 ft., and towards south 133 ft. In fact the description of the property which is described in the schedule indicates of a dilapidated house existing in the said premises. The contents of the sale deed also indicate that the house was about 70 years old. The other sale deed at Ex.P.15 dated 27.4.2005 indicates of the purchase of site property being made by the appellant/accused at 5th block, V.P. Extension, D.No.4304 K.No.2143 and 2144 Assessment No.9105/7682/4304 and 9105A/7687A measuring 27 Crl. Appeal No.2129/2024 East to West 130 ft., North to South 50 ft. The main argument which has been canvassed by the learned counsel for appellant is that the properties were lying adjacent to each other and even the katha No. and assessment No. indicates of the same was declared and the appellant did not entertain any malafide intention to furnish false information. The aforesaid aspect seems attractive at the first instance, however, it is noticed from the records that the properties are not merged as per the katha extract or assessment No. Admittedly Ex.P.14 was executed on 7.5.2004 and whereas Ex.P.15 was executed on 27.4.2005 i.e., after lapse of about 1 year. The above said assets and liabilities came to be declared on 23.11.2005. As such it indicates that nowhere in the subsequent sale deed also it has been mentioned that the earlier property was to be merged with the aforesaid property. Even otherwise, I have taken into account of the declaration 28 Crl. Appeal No.2129/2024 which the appellant/accused had made during the course of his election. The declaration which he had made has been produced before the court and marked as Ex.P.12. The document at Ex.P.12 is an affidavit which was furnished by the appellant/accused at the time of contesting election. In the aforesaid document he has specifically stated that in column No.2 of having cash Rs.10 lakh and also having FD at SBM, Chitradurga and Chitradurga Rural Bank to an extent of 15 lakhs and he has also disclosed owning 2 LIC Policies worth Rs.1 lakh. With respect to the landed properties he has declared that he owned land in Assessment No.4190 measuring 40 X 180 ft. In fact the declaration is quite similar to Ex.P.13. Secondly he has also declared another property in Assessment No.4800 which is not similar to Ex.P.14. Though the applicant has disclosed in detail about the dimensions in his affidavit, which he had filed, he had not 29 Crl. Appeal No.2129/2024 disclosed about LIC polices or the Fixed Deposits which were standing in his name at SBM and also Rural Bank. It is relevant to note that the affidavit was filed on 30.3.2004. As such the sale deed which was executed on 27.4.2004 i.e., subsequently at Ex.P.15 should have been declared by the appellant in his assets and liabilities.
20. With respect to the allegations which have been leveled pertaining to the year 2005-06 the document which has been produced is marked as Ex.P.8. In the document at Ex.P.8 at Column No.4 he has furnished the details of the bank account as the one he was holding at Apex Bank, Vidhana Soudha Branch, SBI, Chitradurga and SBM. Further, in column No.4 he has disclosed that he owns two LIC policies. Apart from that at column No.6 he has given details of site as measuring 40 X 60 ft., and another site measuring 130 X 50 ft. The aforesaid document 30 Crl. Appeal No.2129/2024 which is assets and liabilities was submitted on 2.9.2006. For moment if the assets and liabilities is now compared with that of assets and liabilities of the previous year i.e., pertaining to the year 2004-05, it is relevant to note that the details of the immovable site was to be mentioned in column No.6 and it was mentioned as 150 X 130 ft., and another site as 180 X 35 ft. Whereas if the details which has been furnished in this assets and liabilities for the subsequent year on 2.9.2006 is compared it is entirely different and except one site mentioned as 130 X 150 ft., no other properties have been described. At the cost of repetition once again the affidavit which has been filed before the Election authorities at Ex.P.12 is required to be revisited. Ex.P.12 affidavit was filed before the Election Authorities on 30.3.2004. Admittedly the sites which are more fully described in Ex.P.13 to 15 were purchased on 30.1.2004, 7.5.2004 and 27.4.2005. 31 Crl. Appeal No.2129/2024 Ex.P.13 site measuring 40 X 180 ft., was in existence prior to filing of affidavit itself. However, in the affidavit furnished before the Election Authorities aforesaid disclosure are forthcoming, which indicates of disclosing another site with Assessment No.4800. For a moment if the documents are appreciated it would indicate that the site which is declared in Assessment No.4800 has not been declared in the assets and liabilities which were subsequently filed before the Lokayukta authorities. I have also bestowed my anxious reading to the rejoinder filed by appellant/accused which is at Ex.P.4 wherein the details have been narrated. In the said reply dt.3.11.2007 at para-3 the appellant/accused has narrated that he had not described about the details of the two sites in the assets and liabilities which he had filed before Hon'ble Lokayukta.
32 Crl. Appeal No.2129/2024
21. That apart another rejoinder was filed in the year 2008 as per Ex.P.5. In the said rejoinder at para-3 it has been specifically stated that he had already sold the sites which were disclosed before the Returning Officer as per Ex.P.12. If for a moment Ex.P.12 affidavit is appreciated it indicates that the first site which was declared with respect to assessment No.4190 which was measuring 40X 180 ft. Said property was purchased by the appellant as per registered sale deed at Ex.P.13 on 30.1.2004. The assets and liabilities for the year 2004-05 indicates that the appellant was owning two sites measuring 150 X 130 ft., and another site measuring 180 X 35 ft. There are no details to indicate that the when the said site was sold by the appellant.
22. Learned counsel for accused /appellant has argued that with respect to the aforesaid at Ex.P.13, by stating that the same was included in Column No.6 at 33 Crl. Appeal No.2129/2024 Ex.P.7. If for a moment the aforesaid submission is accepted then once again the appellant has to explain how the property mentioned in Ex.P.13 can be construed as site which is described as measuring 150 X 130 ft., or the site measuring 180 X 35 ft., as per Ex.P.7.
23. The court has also carefully appreciated the basic ingredients that are required to prove the case against the accused/appellants for the offence punishable under Sec.177 of IPC. The learned counsel for appellant has vehemently argued that the basic postulate which is required to be established by the prosecution is the fact of entertaining a malafide intention or mens rea to commit offence. In order to better appreciate the same it would be just and proper to consider the provision of sec.177 of IPC which reads as follows:-
34 Crl. Appeal No.2129/2024
Sec.177. Furnishing false information.-- Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
24. When the aforesaid provision is carefully appreciated, it clearly indicates that in order to attract the aforesaid provision the following ingredients are required to be established:
35 Crl. Appeal No.2129/2024
i. that person must be legally bound; ii. that the person legally bound is required to furnish information on a particular subject to a public servant;
iii. that he must furnish the information on that subject which he knows or reason to believe to be false;
25. The underlining aspect of the aforesaid provision is of furnishing information by a public servant who is legally bound to furnish information on a particular subject. What amounts to 'legally bound' has been succinctly defined under Sec.43 of Cr.P.C., wherein it indicates as follows:
"43. "Illegal", "Legally bound to do".--
The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit."36 Crl. Appeal No.2129/2024
26. The manner in which the provision of section 43 of IPC is to be appreciated has been laid down by the Hon'ble Apex Court in the judgment rendered in (2009) 8 SCC 1 ( Sudhir Shantilal Mehta V CBI ) wherein it is held as:
89. Section 43 defines the terms "Illegal" or "Legally bound to do" in the following terms:
"43. 'Illegal', 'Legally bound to do'.--The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit."
It carries a very wide meaning.
If any ground for civil action can be founded on the basis of any act of omission or commission on the part of a person, his act may be held to be illegal or it may be held that he was legally bound to do an act which he 37 Crl. Appeal No.2129/2024 had omitted to do. If a person is guilty of breach of a departmental order, he may be held to be guilty as he was legally bound to act in terms thereof.
27. The aforesaid judgment would clearly indicate that when a person is bound to do an act and he had omitted to do so, the same may be construed as committing an illegality. When the provision is carefully appreciated, in the first instance prosecution is required to prove that the person i.e., the appellant herein was legally bound to furnish information on a particular subject. Though the learned counsel for appellant/accused had argued that they were not legally bound to furnish information to Hon'ble Lokayukta, the same is not res-Integra since it has already been discussed in various authorities by the Superior Constitutional authorities. Even otherwise as per the provisions of Sec.22 of Karnataka Lokayukta Act, 1984 clearly envisages as follows: 38 Crl. Appeal No.2129/2024
"22. Public servants to submit property statements (1)Every public servant referred to in sub-section (1) of section 7, other than a Government servant, shall within three months after the commencement of this Act and thereafter before the 30th June of every year submit to the Lokayukta in the prescribed form a statement of his assets and liabilities and [those of the] [Substituted by Act 31 of 1986 w.e.f.
16.6.1986.] members of his family.
(2)If no such statement is received by the Lokayukta from any such public servant within the time specified in sub- section (1), the Lokayukta shall make a report to that effect to the competent authority and send a copy of the report to the public servant concerned. If within two months of such report the public servant concerned does not [submit such statement the Lokayukta, shall publish or cause to be published the name of such public servant] [Substituted by Act 31 of 1986 w.e.f. 16.6.1986.] in three newspapers having wide publication in State."
39 Crl. Appeal No.2129/2024
28. The aforesaid provision itself empowers the Hon'ble Lokayukta to collect necessary information. It is noticed from the records that a serious argument was canvassed during the course of argument and also during the course of cross-examination of PW1 that the Hon'ble Lokayukta cannot be considered as a public servant. Who can be construed as public servant is once again required to be appreciated by looking in to the provisions of Karnataka Lokayukta Act and for instance Sec.2(12) of the Act is extracted herein and reads as follows:-
"(12)"public servant" means a person who is or was at any time,-
(a)the Chief Minister;
(b)a Minister;
(c)a member of the State
Legislature;
(d)a Government Servant;
(e) XXX
40 Crl. Appeal No.2129/2024
29. When the aforesaid aspect is once again considered the contentions urged in this regard doesn't holds water. With respect to other ground of argument which is canvassed before the trial court, the learned counsel for Appellant/ Accused during the course of cross-examination of PW1 it was submitted that the Hon'ble Lokayukta is only paid Honorarium and he cannot be considered as public servant. In the judgment rendered by the Hon'ble Apex Court reported in AIR 1954 SC 653 (Ravanna Subanna V G S Kageerappa) it has been held as:
"The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit."41 Crl. Appeal No.2129/2024
30. In the aforesaid authority the Hon'ble Apex Court has clearly held that even payment of honorarium and also obtaining driving benefits would amount to be classified as drawing necessary remuneration and when the same is juxtaposed with the facts of the above case, it would clearly indicate that Hon'ble Lokayukta was empowered to insist for the information on assets and liabilities by the appellant / accused. It cannot be disputed that the appellant cannot be as a public servant. Indeed the appellant was a Member of Legislative Assembly and as such he was definitely covered under the definition of public servant of Karnataka Lokayukta Act.
31. Now coming to the next aspect of furnishing certain information on a particular subject. Though it has been argued at length that categorical compliance of furnishing information was made by the appellant, it is relevant to note that at the first instance, the 42 Crl. Appeal No.2129/2024 appellant who was holding a responsible position has not clearly described about the properties which he had owned. In fact, he has not even mentioned the katha number or the assessment number or even description of the property and all that he had disclosed was that he had owned sites at Chitradurga. However, it is relevant note that at the time of filing affidavit before the Election Officer, he had disclosed about the katha No. and also assessment No. In the circumstances, it would clearly indicate that appellant/accused had wantonly not furnished the information. It is not the contention of the accused that the non-disclosure was only an inadvertent act or an act without any malice. It is also settled principles of law that in various authorities that non-disclosure need not be attributed to attaining any financial or any other gain, but the non-disclosure would definitely attract the rigors. In order to better appreciate the 43 Crl. Appeal No.2129/2024 same, I have relied upon the judgment of the Hon'ble Supreme Court with respect to material facts which is reported in (1982)3 SCC 487 (Roop Lal Sathi v. Nachhattar Singh Gill) wherein it is held as:
26. There is distinction between "material facts" and "particulars". The words "material facts" Show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between 'material facts' and 'particulars' was brought out by Scott, L.J. in Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] in the following passage:
"The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material"
means necessary for the purpose of formulating a complete cause of action; and if any one "material" statement is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "stuck out"
under R.S.C. Order 25 Rule 4 44 Crl. Appeal No.2129/2024 (see Philipps v. Philipps [(1878) 4 QBD 127] ); or "a further and better statement of claim" may be ordered under Rule 7. The function of "particulars" under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim -- gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial."
The dictum of Scott, L.J. in Bruce case [(1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] , has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : AIR 1969 SC 1201 : (1969) 3 SCR 603] and while observing that the requirements of Section 83 are mandatory, the distinction between material facts and particulars was brought out in the following terms:
45 Crl. Appeal No.2129/2024
"The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet."
Thus, the word 'material' in material facts under Section 83 of the Act means facts necessary for the purpose of formulating a complete cause of action; and if any one 'material' fact is omitted, the statement or plaint is bad; it is liable to be struck out. The function of "particulars" is quite different, the use of particulars is intended to meet a further and quite separate requirement of pleading imposed in fairness and justice to the returned candidate. Their function is to fill in the picture of the election petitioner's cause of action with information sufficiently detailed to put the returned candidate on his guard as to the case he has to meet and to enable him to prepare for trial in a case where his election is challenged on the ground of any corrupt practice.
46 Crl. Appeal No.2129/2024
32. Thought the aforesaid judgment speaks about striking out of materials facts when the same is omitted, the same defines the situation in which the material fact can be appreciated. In other words the word 'material' in material facts under Section 83 of the Act means facts necessary for the purpose of formulating a complete cause of action; and if any one 'material' fact is omitted, the statement or plaint is bad; it is liable to be struck out. The said scenario aptly applies to the case on hand Even otherwise the information which was furnished in the assets and liabilities as per Ex.P.7 and Ex.P. 8 was not correct and there was reasons for the appellant /accused to believe that the material information which he had furnished was to be false. Under the circumstances, the impugned order passed by the learned trial court is apt and correct.
47 Crl. Appeal No.2129/2024
33. I have also bestowed my anxious reading to the other limb of arguments canvassed by the learned counsel for appellant. It his submission that non- furnishing of information was only a mere omission which could not attract the rigors of provisions of Sec.177 which mandates a person to furnish necessary information.
34. In order to better appreciate the same, the court has placed reliance upon the judgment rendered by Hon'ble Apex Court reported in (2014)15 SCC 242 ( Bishan Das V State of Punjab) wherein in a similar situation when a sarpanch of a village had issued certificate of which he had knowledge to be false, it was held as:
5. Section 177 IPC deals with giving of false information. The ingredients of Section 177 IPC are:
(i) That a person must be legally bound to furnish information on a particular subject to a public servant.48 Crl. Appeal No.2129/2024
(ii) That he must furnish, as true, information on that subject which he knows or has reason to believe to be false.
6. The appellant being a Sarpanch of Gram Panchayat was legally bound to give correct information and bound to issue a correct certificate. Though Lal Chand owned 13 kanals 13 marlas and his wife also owned lands in Village Baruhi, the appellant issued false certificate in favour of Lal Chand that he does not own any land except the land which he has made fit for cultivation and thus furnished the information which he knew to be false. Based on the revenue records, the trial court recorded factual findings that Lal Chand and his wife totally owned 83 kanals 14 marlas of land. The appellant knowingly issued the false certificate in favour of Lal Chand containing false information and the ingredients of Section 177 IPC are proved and we find no reason to interfere with the conviction of the appellant under Section 177 IPC.
35. By looking in to the aforesaid provision it is crystal clear that though the appellant / accused was legally bound to disclose information had not disclosed 49 Crl. Appeal No.2129/2024 the same in his annual assets and liabilities. The main aspect which could be ascertained from the aforesaid judgment is that the intention and knowledge plays an important aspect. Now in the case on hand, when the materials on record is once again appreciated it doesn't indicate that non disclosure was only an omission. The Appellant had clear knowledge about the assets or in other words the immoveable property he owned and further the declaration in the form of affidavit which he had filed before the Election Officer would indicate the same and when the property was purchased by him subsequently, there was no necessity for him to omit from disclosure and even otherwise the description mentioned in the assets and liabilities are entirely different from that of the affidavit filed before the Election Officer and for that matter the description and details of the property are entirely different from that of the property which the Appellant is possessing. 50 Crl. Appeal No.2129/2024 Though the burden of proving the case beyond reasonable doubt would always be upon the prosecution which was established by the prosecution by producing the documents, the accused had not explained anything with respect to omission on his part. The learned counsel for the Appellant has relied upon the judgment of the Hon'ble Apex Court reported in (1992)1 SCC 534 (Shrish Dhawan V M/s Shah Brothers) wherein it is held as:
20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being 51 Crl. Appeal No.2129/2024 prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.
In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick.
According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with 52 Crl. Appeal No.2129/2024 knowledge that it was false. In a leading English case [Derry v. Peek, (1886-90) All ER 1 : (1889) 14 AC 337 : 5 TLR 625] what constitutes fraud was described thus : (All ER p. 22 B-C) "[F]raud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."
But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja [Khawaja v. Secretary of State for Home Deptt., (1983) 1 All ER 765] that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava [Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556 : AIR 1991 SC 1233] it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the 53 Crl. Appeal No.2129/2024 Act to something else which is quite foreign to its object and beyond its scope." [ Craies on Statute Law, 7th edn., p. 79] Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-
disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad 54 Crl. Appeal No.2129/2024 bargain." [ Anson's Law of Contract] In public law the duty is not to deceive. For instance non-disclosure of any reason in the application under Section 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under Section 21 to state that the premises shall be needed by the landlord after expiry of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or non-disclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to Section 17 unless it relates to fact which is likely to affect willingness of a person to enter into a contract. Fraud or misrepresentation 55 Crl. Appeal No.2129/2024 resulting in vitiation of permission in context of Section 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction.
36. In the aforesaid judgment the Hon'ble Apex court had an occasion to discuss about what amounts to Fraud and Misrepresentation. In my humble opinion, misrepresentation is the genesis and whereas the Fraud is the outcome of misrepresentation. Further in the aforesaid judgment the Hon'ble Apex Court has held that misrepresentation must be in relation to the conditions provided in a section on existence or non- existence of which power can be exercised. But non- disclosure of a fact not required by a statute to be disclosed may not amount to fraud. However when the same applied to the case on hand, the question of non disclosure not leading to any liability cannot be considered. In fact, as per the Karnataka Lokayukta Act, it is mandated that the public servants are liable 56 Crl. Appeal No.2129/2024 to disclose/furnish information. The other judgment which is relied upon by the learned Counsel for Appellant in (2022)18 SCC 1 (S Rukmini Made Gowda V State Election Commission and others) the Hon'ble Apex Court was considering whether non disclosure of details in assets and liabilities amounts to corrupt practices. In the said judgment the Hon'ble Apex Court had held that non disclosure would amount to corrupt practices entailing disqualification and since the question of disqualification or corrupt practice is not the issue on hand, the aforesaid judgment will not be of much help to the Appellant herein.
37. The other limb of argument which was canvassed by the learned counsel for accused/appellant is with respect to erroneous framing of charges. I have bestowed by anxious reading to the plea which was recorded by the learned trial court. At the time of recording the plea, the substantial fact 57 Crl. Appeal No.2129/2024 which was described was with respect to committing the offence punishable under Sec177 of IPC by not furnishing the information "within the stipulated period of time". The learned counsel for appellant has argued that framing or recording of an erroneous plea by itself has vitiated the proceedings. In order to consider the same, the court has relied upon the judgment rendered by larger bench of the Hon'ble Apex Court reported in AIR 1956 SC 116 (Willie (William) Slaney v. State of M.P) wherein it is succinctly discussed as follows:
20. Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms :
Section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial. But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly 58 Crl. Appeal No.2129/2024 provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in a number of sections. The whole question therefore is whether the "charge" must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure.
21. First of all, Sections 221 to 223 of the Code, which undoubtedly envisage a formal written charge, set out what a charge must contain. A perusal of them reveals the reasons why a charge is required. It must set out the offence with which the accused is charged and if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated "as to give the accused notice of the matter with which he is charged". The charge must also contain such particulars of date, time, place and person "as are reasonably sufficient to give the accused notice of the matter 59 Crl. Appeal No.2129/2024 with which he is charged"; and Section 223 says:
"When the nature of the case is such that the particulars mentioned in Sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient/for that purpose."
22. It is clear to us that the object of the charge is not to introduce a provision that goes to the root of jurisdiction as, for example, the requirement of previous sanction under Section 197, but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. But there are other ways of conveying this information. For example, in summons cases no formal charge is required : all that is necessary is to tell the accused the substance of the accusation made against him (Section 242). The whole question is whether, in warrant cases and in sessions trials, the necessary information must be conveyed in one way and one way only, namely in a formal charge in order that the entire trial may not be ipso facto vitiated because of an incurable illegality, or whether that can be done in other and 60 Crl. Appeal No.2129/2024 less formal ways, provided always that it is in fact conveyed in a clear and unambiguous manner and in circumstances that the court will regard as fair and in substantial, as opposed to purely technical, compliance with the requirements of the Code. The law could have provided one way as easily as another, but what it has chosen to do is set out in the following sections.
23. The marginal note to Section 225 is headed "Effect of errors" and the section states that:
"No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact : (1) the accused has in fact been misled by it and (2) it has occasioned a failure of justice. That, in our opinion, is reasonably plain language.
61 Crl. Appeal No.2129/2024
24. Next, Sections 226 and 227 show that errors in a charge, and even the total absence of a charge, do not vitiate a trial from the start so as to render it no trial at all as would the absence of sanction under Section 197. This is evident because these errors and omissions can be remedied at any time during the course of the trial in the Sessions Court (Section 226) or even at the very end of the trial (Section 227), and when this is done the trial need not proceed de novo but can go on from the stage at which the alteration was made provided neither side is prejudiced (Section 228). That is conclusive to show that no error or omission in the charge, and not even a total absence of a charge, cuts at the root of the trial. The proceedings up to the stage of the alteration, which, as we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice; they are good despite these imperfections. That is impossible when the error is so vital as to cut at the root of the trial. It follows that errors in the charge, and even a total absence of a charge, are not placed in the non-curable class.
25. Next, we have a case in which the error is not observed and corrected 62 Crl. Appeal No.2129/2024 during the trial and the accused is convicted. In such a case, the High Court is empowered to direct a retrial only if, in its opinion, the accused was "misled in his defence" (Section 232). It is to be observed that this is so whether there was a total absence of a charge or merely an error in it. It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore, defects even of this nature are not regarded as fatal.
43. Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. 63 Crl. Appeal No.2129/2024 Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done, what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.
44. In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt 64 Crl. Appeal No.2129/2024 about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended by counsel (Atta Mohammad v. King-
Emperor [(1929) LR 57 IA 71, 74] ) it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused" (Abdul Rahman v. King-Emperor [(1926) LR 54 IA 96, 104, 110] ). But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, 65 Crl. Appeal No.2129/2024 because the facts can never be alike in any two cases "however" alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if there were.
38. In the aforesaid judgment the Hon'ble Apex Court was discussing with respect to section 225 of old Code which is akin to the provisions of section 219 of Cr.P.C. The said provision would clearly indicate as follows:
"Sec. 215. Effect of errors-- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
39. The aforesaid provision would clearly indicate that the Accused should be able to clearly 66 Crl. Appeal No.2129/2024 demonstrate the fact that he was misled by such error or omission and it has occasioned a failure of justice. The said provision is once again appreciated with the facts of the case, charges framed by the trial court and also the dictum laid down by the Hon'ble Apex Court judgment supra. Though the charge indicate of accusations being leveled against accused for not furnishing the annual returns of assets and liabilities in time, the accused was fully aware of the allegations leveled against him. It is noticed from cross examination that several volley of questions were put to the witness with respect to commission of offence under section 177 of IPC. Further in this regard the law is well settled that the proceedings will be vitiated only if the accused is able to find out that he was prejudiced by the erroneous recording of plea. In other words when the provision of law is carefully appreciated with respect to framing of plea or charge 67 Crl. Appeal No.2129/2024 as contemplated under Sec.211 to Sec 213 of Cr.P.C., it would indicate that the substantive nature of the offence and the provision of law is required to be explained to the accused person for the purpose of facing the trial.
40. The parameters which was laid down before the court was clearly known to the accused person and also it is noticed from the records that the accused himself has participated in the trial and even certain suggestions were made with respect to explaining the properties which were not included in the annual assets and liabilities. Under the circumstances, it is crystal clear that the accused was aware of the allegations which were leveled against him before the trial court and hence, now he cannot take up a contention that he was prejudiced by the act of the recording of an erroneous plea. No doubt the court is not holding that the plea which was recorded is 68 Crl. Appeal No.2129/2024 completely erroneous, it is relevant to note that the substantive portion of information for which is the accused is required to face the trial is explained by the trial court. Under the circumstances, the contentions hold no water and the same is liable to be rejected.
41. I have carefully appreciated the authorities which were relied upon by the learned counsel for appellant/accused. It is his submission that the trial court has not appreciated the judgment reported in ILR 2012 KAR 4393 (Veeranna Vs. State of Karnataka). I have bestowed my anxious reading to the same. Though the facts and circumstances seems to be quite similar in the instant case, however, a distinction is to be made is with respect to the allegations which the accused was facing in that case to that of the allegations which the present accused person is facing. In the instant case the affidavit which was filed before the Election authorities disclosed of 2 properties and 69 Crl. Appeal No.2129/2024 whereas the description which is mentioned in the annual assets and liabilities described of 2 sites measuring 150 X 130 ft., and 180 X 35 ft. However, the affidavit disclosed of site measuring 40 X 180 ft., in assessment No.4190 and another property bearing Assessment No.4800 measuring 28 X 169x125/2. The aforesaid aspect clearly indicates of suppression of fact which is not discussed nor explained in the annual statement of assets and liabilities. Under the circumstances, the authorities relied upon by the learned counsel for accused / appellant renders not much assistance to them.
42. The learned counsel has relied upon the judgment of Hon'ble Apex Court reported in (2024) 3 SCC 51 (V.Senthil Balaji Vs. State rep by Deputy Director and others) and has argued that the trial court ought to have considered the submissions made by the Appellant and order rejecting the contention 70 Crl. Appeal No.2129/2024 that the same was considered at the earliest instance was not correct. Though said submission is correct, it is relevant to note that the main limb of argument is canvassed with respect to non-considering the judgment in Veeranna's case discussed supra. However, the distinction with respect to the ratio laid down in said case is made and hence the same doesn't render much importance to their contention. Accordingly, the impugned judgment passed by the trial court is apt and correct and I do not find any irregularity in the impugned order. Hence, I answer points for consideration in the Negative.
43. Point No.5: In view of my findings on Point No.1 to 3, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant/accused under Sec.374(3) of Cr.P.C., is hereby dismissed.71 Crl. Appeal No.2129/2024
Consequently, the judgment and order of conviction passed by the XLII Addl. Chief Metropolitan Magistrate, Bengaluru in CC No.24083/2023 dated 25.11.2024 is hereby confirmed.
Office is hereby directed to send back the trial court record along with copy of the Judgment to learned Magistrate forthwith.
(Dictated to the Stenographer Grade-I, transcribed by him, revised and corrected by me and then pronounced in the Open Court on this the 24th day of February, 2025) Digitally signed by SANTHOSHGAJANANABHAT SANTHOSHGAJANANABHAT Date: 2025.02.24 16:58:39 +0530 (Santhosh Gajanan Bhat) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/MLAs in the State of Karnataka)