Karnataka High Court
Sri N C Shivakumar vs State Of Karnataka on 29 February, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.4380 OF 2022
CONNECTED WITH
CRIMINAL PETITION NO.5401 OF 2022
IN CRIMINAL PETITION NO. 4380 OF 2022
BETWEEN:
SRI. N C SHIVAKUMAR
BIN LATE CHANDAIAH,
AGED ABOUT 50 YEARS,
ASSISTANT DIRECTOR,
C.U.D.A., CHIKMAGALUR - 577 101.
...PETITIONER
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI. HARISH KUMAR M.C., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY LOKAYUKTHA, CHIKAMAGALURU PS,
REPRESENTED BY:
SPECIAL PUBLIC PROSECUTOR LOKAYUKTHA,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2
2. G. GOPINATH
S/O LATE GOVINDARAJU,
AGED ABOUT 45 YEARS,
NEAR AMBEDKAR BHAVAN,
3RD CROSS,
KEMPANAHALLI,
CHIKAMAGALUR,
N/O THULASI NILAYA,
NEAR JYOTHI CIRCLE,
MARKET ROAD,
CHIKMAGALUR - 577 101.
...RESPONDENTS
(BY SRI. B B PATIL, ADVOCATE FOR R1/LOKAYUKTHA;
SRI. B S SACHIN, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS IN
CR.NO.4/2022 ARISING OUT OF FIR IN CR.NO.4/2022 OF
ACB P.S., CHIKKAMAGALURU PENDING ON THE FILE OF THE
COURT OF PRL. DISTRICT AND SESSIONS JUDGE, SPL.
COURT, CHIKKAMAGALURU FOR THE OFFENCE P/U/S 7(a)
OF P.C ACT (AMENDMENT ACT-2018) AND SEC.7(A) OF P.C
ACT, IN SO FAR AS THE PETITIONER IS CONCERNED.
IN CRIMINAL PETITION NO. 5401 OF 2022
BETWEEN:
SRI. M.G.RAMESH
S/O LATE GINDIGOWDA,
AGED ABOUT 55 YEARS,
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R/O BYPASS ROAD,
GAVENAHALLI,
HASSAN - 573 201.
...PETITIONER
(BY SMT. REKHA K R., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY LOKAYUKTHA, CHIKAMAGALURU PS,
REPRESENTED BY:
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2. G. GOPINATH
S/O LATE GOVINDARAJU,
AGED ABOUT 45 YEARS,
R/AT TULASI NILAYA,
NEAR JYOTHI CIRCLE,
MARKET ROAD,
CHIKMAGALUR - 577 101.
...RESPONDENTS
(BY SRI. B B PATIL, ADVOCATE FOR R1/LOKAYUKTHA;
SRI. B S SACHIN, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASHING THE PROCEEDINGS
IN CR.NO.4/2022 ON THE FILE OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR TRIAL OF
CASES RELATING TO PREVENTING OF CORRUPTION ACT,
CHIKKAMAGALURU SO FAR AS PETITIONER IS CONCERNED
WHEREIN RESPONDENT POLICE HAVE FILED FIR AGAINST
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THE PETITIONER AND OTHER FOR OFFENCE P/U/S.7(A) OF
PREVENTION OF CORRUPTION ACT 1988.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 13.02.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
Crl.P.No.4380/2022 is filed by the petitioner- accused No.1 and Crl.P.No.5401/2022 filed by the petitioner-accused No.2 under Section 482 of Cr.P.C. for quashing the FIR in Crime No.4/2022 registered by the then ACB, now pending investigation with Lokayuktha Police, Chikkamagaluru for the offence punishable under Section 7(a) of Prevention of Corruption Act, 1988 (for short 'P.C. Act').
2. Heard Sri Ashok Haranahalli, learned Senior counsel appearing for the petitioner in Crl.P.No.4380/2022, learned counsel for the petitioner in Crl.P.No.5401/2022, Sri B.B. Patil, learned Special 5 counsel for respondent-Lokayuktha and Sri B.S.Sachin, learned counsel for respondent No.2.
3. The case of the prosecution is that complainant one Gopinath filed complaint before the Lokayuktha Police on 4.4.2022 alleging that the petitioner-accused No.1 is the Assistant Director of Chikkamagalur Urban Development Authority (hereinafter referred to as 'CUDA') and accused No.2- Ramesh being a broker have demanded Rs.8,50,000/- as bribe for releasing 40% sites for the purpose of selling and the complainant is not willing to pay the bribe amount, hence he lodged complaint to the Lokayuktha Police. After registering the FIR, the police set up the trap. Accordingly, on 8.4.2022, the police team went near the office of accused No.1, he was not available. Therefore, a complainant telephoned to accused No.2 when he came at 5.30 p.m., the amount was paid to accused No.2 who received it and the police 6 trapped him and in the voluntary statement, the accused No.2 has stated that he received money on behalf of accused No.1. Therefore, the police took up the investigation against both the accused. Subsequently, accused No.1 also arrested and he has stated that he has not contacted the complainant and there is no discussion. The complainant required to deposit the money in the Authority and after the verification, the order will be passed and he has not received any money from the complainant.
4. Being aggrieved with the investigation, both the petitioners-accused Nos.1 and 2 are before this Court.
5. The learned Senior counsel Sri. Ashok Haranahalli appearing for accused No.1 has contended that there is no specific allegation against accused No.1 for demand of any bribe and acceptance of bribe. He 7 never discussed with the complainant at any point of time. The police prepared the trap on 7.4.2022 and it was failed. On 8.4.2022, accused No.2 was trapped. There is no work or file pending with the accused No.1. Accused No.2 misused the name of accused No.1. The learned Senior counsel has contended that when there is no demand, acceptance and work pending with the petitioner, the question of conducting the investigation does not arise. Therefore, as per the judgment of the Hon'ble Supreme Court in the case of Neeraj Dutta vs. State (GOVT. OF N.C.T. OF DELHI) reported in 2022 SCC OnLine SC 1724 at paragraph No.68, it has stated that when there is no demand and acceptance, the offence under Section 7 of P.C. Act cannot be constituted. The learned counsel also relied upon the judgment of this Court in the case of N. Thejas Kumar vs. State and Another in W.P.No.915/2022 (GM- RES) dated 21.03.2022.
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6. Learned Senior counsel also contended that the accused No.1 is not the Authority to grant or release the sites. The planning Authority required to release the sites. The draft relinquish deed cannot be a deed. The complainant shall obtain certificate from PWD, BESCOM and other departments, thereafter the sites are required to be released. Such being the case, the question of demand by accused No.1 does not arise.
7. Learned counsel appearing for accused No.2 has contended that Section 7 of the P.C. Act is not applicable to accused No.2. He is not a public servant. He has been falsely implicated. The complainant given money to accused No.2, but he has no knowledge for what purpose the amount was given. It was trapped by the Police. Hence, prayed for quashing the FIR. 9
8. Learned counsel appearing for respondent- Lokayuktha has contended that accused No.1 is the Authority. Accused No.2 is the middleman, he received money on behalf of accused No.1. Accused No.2 has given voluntary statement that on instruction of accused No.1, he received the money. The charge sheet is ready, except FSL report. Therefore, prayed for dismissing the petition.
9. Having heard the arguments and on perusal of the records, which reveals, as per the complaint by the respondent No.2, accused No.1 is the Assistant Director of CUDA. An application was filed long back for releasing 40% of the sites by the Authority but he has not responded from 2021 onwards. Therefore, the complainant met accused No.2 and told for getting the permission and for that, accused No.2 who said to be a middleman demanded Rs.8,50,000/- from the complainant. Accordingly, a complaint was filed on 10 4.4.2022. A trap was set up on 7.4.2022 which was failed and subsequently on 8.4.2022, accused No.2 while receiving the amount has been trapped by the Police.
10. Learned counsel for the respondent submits that there is a telephonic conversation between the complainant and accused Nos.1 and 2. The telephonic conversation has been converted into C.D. and voice samples also taken by the Investigating Officer, sent to the FSL but report not received. Though the learned counsel for the respondent produced a sealed cover and submitted, the investigation was completed and charge sheet is ready and waiting for the sanction from the Government.
11. I have perused the records submitted by the learned counsel for Lokayuktha, which reveals, the police have collected some Notifications of the 11 Government regarding Town Planning Authority for following the procedures to release the sites from the Layout. But there is a condition that before releasing the sites, the developer shall obtain certificate from the Electricity Authority, Water Supply and Drainage Board, Pollution Control Board and other local Authorities etc., before releasing the sites which clearly reveals the respondent No.2 not obtained any such certificates for releasing the sites by the Authority. That apart, there is no document collected by the Investigating Officer that the petitioner was the Authority for releasing or granting permission for releasing the sites. It is the Down Planning Authority who shall accord permission and the petitioner is only an Assistant Director of CUDA and he has no authority to grant such permission.
12. On perusal of the pre trap panchanama and telephonic conversation, alleged to have been recorded by the complainant, where there is no demand by 12 accused No.1 and he has also not given any instruction or stated any amount to be payable to him and it has to be given to accused No.2 on his behalf. The conversation is very vague. The voice reveals, he told to the Ramesh-accused No.2 and he will take care of it. Therefore, it cannot be said that the petitioner demanded any bribe.
13. Apart from that, it is pertinent to note, accused No.1 met the complainant along with accused No.2 at any point of time in his office. Only accused No.2 who called the complainant and told accused No.1 is on the line, but there is no record to show that accused No.1 contacted the complainant in the telephone and he himself had conversation with the complainant.
14. There is no demand and acceptance of bribe by the accused No.1. It is an admitted fact that 13 accused No.2 received the money and told that he has received on behalf of accused No.1 and also says he has no connection with accused No.1. The voluntary statement of accused No.2 is not admissible. There is no file or work pending with accused No.1 in order to accord permission to the complainant for releasing of any sites. It is not the case of the complainant that he has obtained all the certificate of clearance from various Authorities like Water Supply Underground Drainage Board, Electrical works from HESCOM, road works from Urban local bodies, Panchayat Raj engineering Department etc. Such being the case, the question of releasing or granting permission by the Town Planning Authority does not arise. Even otherwise, the petitioner-accused No.1 is not an authority to accord any such sanction.
15. If at all, accused No.2 contacted the complainant and he has demanded any money in the 14 name of accused No.1, accused No.1 cannot be made responsible for that and accused No.1 cannot be implicated merely on the voluntary statement.
16. It is also seen from the investigation papers that the Police have conducted raid in the house of accused No.1. They have collected some golden ornaments, silver ornaments under the panchanama by obtaining the search warrant, that is altogether different from the case on hand and that has to be investigated by the Police separately by initiating proceedings against him under Section 13 of the P.C. Act. The same cannot be considered in this case.
17. Learned Senior counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Neeraj Dutta stated supra, wherein the Hon'ble Supreme Court has held that the demand and acceptance are sine qua non for establishing the 15 offence punishable under Section 7 of the P.C. Act and subsequently, the Division Bench of Hon'ble Supreme Court has also taken similar view holding that the demand and acceptance is sine qua non for establishing Section 7 of the P.C. Act.
18. The Hon'ble Supreme Court in the case of Neeraj Dutta stated supra has held that the demand and acceptance are sine qua non for proving the case punishable under Section 7 of the P.C. Act. The Hon'ble Supreme Court has held at paragraph No.3 that proof of demand is sine qua non for the offence to be established under Section 7(13)(1)(d)(ii) of the Act and dehors the proof of demand, the offence under two Sections cannot be brought home. Mere acceptance of any amount allegedly by way of illegal gratification of recovery there of in the absence of proof of demand could not be sufficient to bring home the charge under Section 7, (13)(i)(ii) of the Act. After the judgment of 16 the Constitution Bench of the Hon'ble Supreme Court, once again the Division Bench of the Hon'ble Supreme Court in the subsequent judgment in the case of Neeraj Dutta stated supra has considered the legal position at paragraph No.8 of the judgment and finally at paragraph No.10 has held that:
"The demand for gratification and the acceptance there of are sine qua non offence punishable under Section 7 of P.C. Act"
19. Based upon the above said judgment of the Hon'ble Supreme Court, in the another judgment by the same Bench in the case of Soundarajan vs. State in Crl.A.No.1592/2022, the Hon'ble Supreme Court has taken the similar view at paragraph No.9 of the judgment which is as under:
"9. We have considered the submissions. It is well settled that for establishing the 17 commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof."
20. This Court also taken similar view in various cases that demand and acceptance is sine qua non for constituting the offence under Section 7 of the P.C. Act. Here in this case, the petitioner neither demanded any bribe from the complainant nor accepted any bribe and there is no nexus between the acceptance of money by accused No.2. Therefore, investigating the case against accused No.1 does not arises which amounts to abuse of process of law as held by the Hon'ble Supreme Court 18 in the case of State of Haryana and Others vs. Bhajanlal and Others reported in 1992 SCC (Cri)
426. Therefore, the FIR against accused No.1 deserve to be quashed.
21. As regards to accused No.2 who is a private person and he has though received Rs.2,00,000/- from the complainant in the name of accused No.1, when there is no connecting materials and he is not a public servant, conducting investigation, filing charge sheet as against accused No.2 under the P.C. Act does not arise. Therefore, the FIR against him also liable to be quashed.
22. For the reasons stated above, both the petitions are allowed.
The FIR against accused Nos.1 and 2 in Crime No.4/2022 registered by the then ACB, now pending 19 investigation with Lokayuktha Police, Chikkamagaluru is hereby quashed.
Sd/-
JUDGE GBB CT:SK