Karnataka High Court
State Of Karnataka vs N Lakshman on 30 November, 2021
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.1294 OF 2015
BETWEEN:
State of Karnataka by
Lokayukta Police
Bangalore Rural-1.
..Petitioner
(By Sri. B.S. Prasad, Advocate)
AND:
1. N. Lakshman,
S/o.Late Ninge Gowda,
Age: 62 years, Occ: Retd.
Senior Motor Vehicles Inspector,
Add: No.1261, 32 G Cross,
4th T. Block, Jayanagara,
Bangalore -35.
2. S. Anand
S/o. Srinivasa Reddy
Age: Major, Occ: Business,
Add: No.2452, 16th B Main Road,
H A L 2nd Stage, Bangalore -8
.. Respondents
(By Dr. J.S. Halasetti, Panel Advocate of the
Legal Services Committee for R-1;
Sri. Manmohan P.N., Advocate for R-2)
****
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
Crl.R.P.No.1294/2015
2
praying to set aside the order dated 21-05-2015 passed by the
learned Principal Sessions Judge and Special Judge, Bengaluru
Rural District, Bengaluru in Special Case No.6/2013 in partly
allowing the application under Section 227 of Cr.P.C. in so far as
the offences under Sections 120B, 465, 471 of the IPC and pass
such consequential order, in the interest of justice.
This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
11-11-2021, coming on for pronouncement of orders this day,
the Court made the following:
ORDER
The complainant in Special Case No.6/2013 which is pending in the Court of the Principal Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru (hereinafter for brevity referred to as "the Special Court") being aggrieved by the order dated 21-05-2015, wherein the Special Court had partly allowed the application filed by the present respondents, who were the accused Nos.1 and 2 before it, under Sections 227 and 239 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C.") and had discharged them for the offences punishable under Sections 120B, 465 and 471 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC"), has filed the present revision petition.
2. The revision petitioner herein registered a suo motu case against the respondents for the offence punishable under Crl.R.P.No.1294/2015 3 Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter for brevity referred to as "the Act") accusing the accused No.1 of holding assets disproportionate to his known sources of income. An FIR was registered in Crime No.13/2007 against the respondent No.1 in the complainant - Police Station. After investigation, the Investigating Officer filed the final report against both the respondents herein, arraigning them as accused Nos.1 and 2, observing that the respondent No.1 who was at the material point of time working as a Senior Motor Vehicles Inspector in the Office of the Assistant Regional Transport Officer at Devanahalli had amassed wealth which was disproportionate to an extent of `57.33% upon his known sources of income. According to the charge sheet, the accused No.2 who is the respondent No.2 herein had joined accused No.1 (respondent No.1) and both of them had conspired and created false documents in the name of Memorandum of Understanding dated 01-08-2007 with reference to an immovable property which was Site bearing Municipal No.2, Old No.148, measuring East to West: 70 ft., North to South: 57 ft., situated at B.T.M. Layout, I Stage, Bengaluru, whereby the second respondent (accused No.2) was shown to be Crl.R.P.No.1294/2015 4 a purchaser of the property for a sum of `1,25,00,000/-, out of which, a sum of `60,00,000/- is shown to have been paid by him (respondent No.2) to accused No.1 (respondent No.1) in different instalments in cash and thus has helped accused No.1 in reducing the percentage of his disproportionate assets in excess of his known sources of income. Thus, the accused No.1 was accused in the charge sheet for the offence under Section 13(1)(e) punishable under Section 13(2) of the Act and for the offences punishable under Sections 120B, 465 and 471 of the IPC and accused No.2 (respondent No.2) was accused for the offences punishable under Sections 120B, 465 and 471 of IPC.
3. During the pendency of the special case, both the accused persons preferred an application under Sections 227 and 239 of the Cr.P.C. in the said Court. After hearing both side, the Special Court, by its impugned order dated 21-05-2015 allowed the said application in part. Though it held that there are grounds to frame a charge against accused No.1 only for the offence under Section 13(1)(e) punishable under Section 13(2) of the Act, but held that there are no grounds to frame charge either against accused No.1 or against accused No.2 for the offences punishable under Sections 120B, 465 and 471 of the Crl.R.P.No.1294/2015 5 IPC. Accordingly, both the accused were discharged of the offences punishable under Sections 120B, 465 and 471 of the IPC. Challenging the same, the complainant - State has preferred the present revision petition.
4. This matter was earlier disposed of by this Court by allowing the revision petition vide order dated 13-01-2020. Challenging the same, the respondent No.2 herein preferred a Criminal Appeal before the Hon'ble Apex Court of India in Criminal Appeal No.37/2021. Observing that this Court ought to have granted one more opportunity to the appellant before it who is respondent No.2 herein, whose counsel had remained absent from addressing his arguments in this Court, the Hon'ble Apex Court, by its order dated 12-01-2021 set aside the order passed by this Court dated 13-01-2020 and remitted the matter back to this Court for examination of the matter afresh on merits, uninfluenced by the impugned order passed by this Court. Accordingly, the matter is before this Court once again.
5. In response to the notice, respondent No.1 remained absent and as such, Dr. J.S. Halasetti, learned Advocate, who is a Panel Advocate in the Legal Services Committee of this Court Crl.R.P.No.1294/2015 6 was appointed as the Advocate for the respondent No.1. Respondent No.2 is being represented by his learned counsel.
6. The Special Court's records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the material placed before this Court including the charge sheet papers, impugned order and the memorandum of revision petition.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
9. After hearing the learned counsels for the parties, the points that arise for my consideration in this revision petition are:
i] Whether there are sufficient materials to frame charge against the present respondents (accused Nos.1 and 2) for the offences punishable under Sections 120B, 465 and 471 of the Indian Penal Code, 1860?
ii] Whether the impugned order under consideration warrants any interference at the hands of this Court?Crl.R.P.No.1294/2015 7
10. Learned counsel for the revision petitioner (complainant-State) in his argument submitted that, in the check period from the date 28-11-1978 till 03-11-2007, the respondent No.1 (accused No.1) has amassed huge wealth/assets which is `57.33% in excess of his known sources of income. In order to bring down the proportion of the excess assets within the permissible limit, he (accused No.1) hatched a conspiracy with accused No.2 and got prepared a false document in the form of a Memorandum of Understanding for the sale and development of the property where under the accused No.2 is shown to have given a sum of `60,00,000/- in cash to accused No.1. The Investigating Officer has collected sufficient material and documentary evidence to prove that it was a sham transaction and that both the accused persons had conspired to create false documents only to enable accused No.1 to come out of the allegations made in the charge sheet. He further submitted that the allegation of conspiracy being purely a question of fact, it has to be ascertained only by a full-fledged trial. The documents may act as corroborative evidence which the prosecution witnesses would lead in the matter. It is at that point of time, the accused would have an opportunity to show that the Crl.R.P.No.1294/2015 8 alleged offences are not committed by them, as such, it is premature for them to seek their discharge from the alleged offences.
He further submitted that there are documents produced by the prosecution to show that the stamp paper of alleged Memorandum of Understanding was purchased on 24-07-2007, as such, the Memorandum of Understanding is a subsequently created document. The contents of the said Memorandum of Understanding also would go to show that the said cheques' amounts therein were not given to the accused but to one Sri. Vijaya Kumar for the purpose of construction. Thus, there are sufficient materials to frame charge against both the accused persons for all the offences alleged in the charge sheet and to proceed in the trial.
11. As observed above, the accused No.1/respondent No.1 though was served with the notice, has remained absent before this Court once again for the reasons best known to him. As such, this Court proceeded to appoint an Advocate from the Panel of the Legal Services Committee of this Court for him. The said learned Panel Advocate for the Respondent No.1 in his argument has submitted that, the respondent No.1 had no clue Crl.R.P.No.1294/2015 9 about the confidential report or about the FIR, as such, he cannot be blamed of hatching a conspiracy with accused No.2 and creating a Memorandum of Understanding. He further submitted that the accused No.1 (respondent No.1) had no intention of conspiracy. There is no forgery in the alleged Memorandum of Understanding or that it is not a false document. Therefore, Sections 465 and 471 of the Cr.P.C. are not attracted.
12. Learned counsel for the respondent No.2/accused No.2, in his argument, submitted that admittedly, the FIR was registered only against respondent No.1, however, the charge sheet came to be filed against both accused No.1 and accused No.2. He also submitted that the documents produced by the Investigating Officer pertaining to the immovable property of accused No.1 and the Memorandum of Understanding are not disputed, as such, the question of forging any document does not arise. He also submitted that there are documents to show the receipt of a sum of `60,00,000/- by accused No.1 in instalments, as such, it cannot be held that the accused No.1 had conspired with accused No.2 to commit any criminal offence. Crl.R.P.No.1294/2015 10
Stating that the scope of the revisional jurisdiction is very much limited and that there are no prima facie material to hold that the accused can be charged for the alleged offences punishable under the Indian Penal Code, learned counsel for respondent No.2 relied upon two judgments of the Hon'ble Apex Court in his favour which would be dealt with at the relevant place herein afterwards.
Learned counsel for the respondent No.2/accused No.2 submitting that the scope of revision is very narrow and it is only to set right a patent defect or an error of jurisdiction or law, relied upon a judgment of the Hon'ble Apex Court in the case of Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 9 Supreme Court Cases 460. In para-12 of the said judgment, the Hon'ble Apex Court was pleased to observe as follows:
"12. Section 397 of the Code vests with the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to Crl.R.P.No.1294/2015 11 be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
13. It is keeping the above principle in mind the appreciation of the materials placed before this Court in this matter is required to be looked into.
The complainant in the Special Court has approached this Court through its representative challenging the dischargal of both the respondents herein (accused Nos.1 and 2) for the offences punishable under Sections 120B, 465 and 471 of the IPC.
14. According to the Investigating Officer who has filed the charge sheet, the second accused had no means to pay so much of money shown in the Memorandum of Understanding to the first accused, still, both the accused No.1 and accused No.2 have conspired to create a false document, i.e. Memorandum of Understanding only to bring down the percentage of the Crl.R.P.No.1294/2015 12 disproportionate asset of accused No.1 within the permissible limit.
When the accused No.2 is accused of his incapacity to pay such a huge sum of money as a part consideration under a Memorandum of Understanding and also when the alleged Memorandum of Understanding said to have been entered into between the accused No.1 and accused No.2 is also alleged to have come into existence at a later date after the confidential report against accused No.1 regarding the allegations of corruption against him (accused No.1), accusing him of amassing assets disproportionate to his known sources of income, then the allegation that anticipating the further criminal action against him, accused No.1 hatched a plan with accused No.2 and got created certain false documents, really requires a trial on those allegations. However, the Special Court simply observing that merely because an agreement is entered into in terms shown therein, it would be difficult to say that the accused have conspired with any mala fide intention or object, proceeded to opine that there are absolutely no grounds to frame charge against both the accused for the offence punishable under Section 120B of the IPC. In view of the fact that the allegation Crl.R.P.No.1294/2015 13 accuses that, the accused No.2 had no source or financial capacity to pay a sum of `60,00,000/- to the accused No.1, as a part consideration for the purchase of property and when it (complainant) has placed several materials in the documentary form to show the date and circumstance when the said agreement is said to have come into existence, it was not possible to straightaway conclude that there was no conspiracy between the parties. Since every conspiracy alleged need not necessarily be in the form of exchange of documents, the same need not necessarily be always supported fully with the documentary evidence alone. Several parts of alleged conspiracy may have to be supplied with reliable and trustworthy oral evidence also. As such, the finding of the Special Court that the agreement between the accused Nos.1 and 2 since being in existence had displaced the allegation of conspiracy, is not tenable.
15. The other two offences from which the accused were discharged are the offences punishable under Sections 465 and 471 of the I.P.C. Section 465 of the IPC prescribes the punishment for the offence of forgery, which offence of forgery is defined under Section 463 of the IPC. Section 464 of the IPC defines as to what is creating/making a false document. Crl.R.P.No.1294/2015 14 According to Section 464 of the Cr.P.C., making a false document inter alia includes a person who dishonestly or fraudulently makes, signs and seals or executes a document or part of a document. The mens rea must be there to cause it to believe that such a document or part of document was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed.
16. Learned counsel for accused No.2 in his argument submitted that, neither accused No.1 nor accused No.2 has denied the execution of the Memorandum of Understanding, as such, there cannot be any forgery or creation of a document.
In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of Bandekar Brothers Pvt.Ltd. and another Vs. Prasad Vassudev Keni, etc.etc. reported in 2020 SCC OnLine Supreme Court 707 and drew the attention of this Court to paragraph 46 of the said judgment, wherein the Hon'ble Apex Court has observed as below:
46. Section 463 of the IPC speaks of "forgery" as being the making of a "false document" or "false electronic record", or a part thereof, to do the various things that are stated in that section. unless a person is Crl.R.P.No.1294/2015 15 said to make a false document or electronic record, Section 463 does not get attracted at all....."
17. In the instant case, the prosecution has not just relied upon only the Memorandum of Understanding as the false document, but has also alleged that several other documents were created falsely between accused No.1 and accused No.2 to enable him (accused No.1) to come out of the alleged offence of amassing the assets disproportionate to his known sources of income. When the prosecution has alleged that the accused with pre-planning had created several false documents, the said allegation cannot be easily brushed aside without holding a trial on the aspect, where the prosecution would get an opportunity to place its evidence before the Court to substantiate its accusations and to prove it beyond reasonable doubts about the accused hatching a conspiracy as well creating false documents.
18. Our Hon'ble Apex Court in the case of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru reported in (2020) 2 Supreme Court Cases 768, while discussing Section 227 of Cr.P.C. and dischargal of the accused therein was pleased to observe that while deciding a discharge petition, only materials brought on record by the Crl.R.P.No.1294/2015 16 prosecution (both oral and documentary) have to be considered. The accused is entitled to discharge if the evidence (i.e. statements recorded by Police or documents concerned) which prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross- examination or rebutted by defence evidence, cannot show that the accused committed the offences. Further, where two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. It was further observed in the same judgment by the Hon'ble Apex Court that, though it is open to the accused to explain away the materials giving rise to grave suspicion, but his submissions must be confined only to materials produced by prosecution. The defence of accused cannot be looked into at the stage of discharge. The accused had no right to produce any document at that stage.
19. According to the prosecution, during the check period of 28-11-1978 to 03-11-2007, from all his known sources of income, including salary, agricultural income, income from building and his other known sources of income, the accused No.1 had a total income of `2,81,67,174/-. The income of the Crl.R.P.No.1294/2015 17 family from all movable and immovable properties and its value was `2,61,91,175/-. The expenditure of the family members during the said check period was `1,81,25,768/-. Thus, the total of the income of the family and its expenditure coming to `4,43,16,943/-, the income of the family for the said period was `2,81,67,174/-, as such, there were assets in excess by a sum of `1,61,49,769/- which is `57.33% in excess of his known sources of income. It is in that regard, the prosecution has produced thirteen (13) big volumes running into thousands of pages as documents showing the income and expenditure of the accused No.1. Several of those volumes includes the property documents, the documents pertaining to accusations and management of the assets, service records, etc. It is relying upon those documents, the complainant - State is contending that several of the documents have been falsely created by the accused No.1 to come away from the allegations made against him. Thus, merely relying upon an alleged Memorandum of Understanding said to have been entered into between accused No.1 and accused No.2, this Court, at this stage, cannot come to a conclusion that, there exists no material to proceed further as against the accused persons for the alleged offences punishable Crl.R.P.No.1294/2015 18 under Sections 120B, 465 and 471 of the IPC. Since several of those documents are required to be dealt with in a full-fledged trial, the mens rea also has to be gathered in the process, the genuinity and authenticity of several of those documents are required to be ascertained, it does not warrant discharging both the accused for the offences punishable under Sections 120, 465 and 471 of the IPC. Since the impugned order is now proved to be an erroneous one, the same warrants interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER [i] The present Criminal Revision Petition is allowed;
[ii] The order dated 21-05-2015 passed by the Principal Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru, in Special Case No.6/2013 is set aside, however confining it to the order of dischargal of accused Nos.1 and 2 therein for the offences punishable under Sections 120B, 465 and 471 of the IPC;Crl.R.P.No.1294/2015 19
[iii] The application filed by the accused Nos.1 and 2 under Sections 227 and 239 of the Code of Criminal Procedure, 1973, stands rejected in its entirety;
[iv] In view of the fact that the FIR in the matter is of the year 2007, the charge sheet was filed in the year 2013, and the Special Case No.6/2013 is also of the year 2013, as such, fourteen years have elapsed after filing of the FIR and as on the date of the charge sheet itself, the accused official was said to be a retired employee aged about 60 years, the special case requires to be tried with and disposed of in accordance with law at the earliest, as such, the Special Court disposing of the Special Case No.6/2013 at the earliest but not later than six months from today, would be highly appreciated. Registry to transmit a copy of this order along with the Special Court records to the concerned Court immediately.
Sd/-
JUDGE BMV*