Mr. E Prakash vs State Of Karnataka on 12 December, 2024

[Cites 16, Cited by 0]

Karnataka High Court

Mr. E Prakash vs State Of Karnataka on 12 December, 2024

SMT. M. M. WAHEEDA, HCGP FOR R2) THIS CRL.P IS FILED U/S 482 OF CR.P.C. PRAYING TO A. QUASH THE CHARGE SHEET DATED 07.12.2023 IN CR.NO.15/2019 REGISTERED AS SPL.C.NO.23/2024 PENDING ON THE FILE OF 7TH ADDL. DISTRICT AND SESSIONS JUDGE, TUMKUR DISTRICT, TUMAKURU REGISTERED BY THE RESPONDENT NO.1 POLICE AGAINST THE PETITIONER HEREIN FOR OFFENCE P/U/S 13(1)(A) OF P.C. ACT, 1988 VIDE ANNEXURE-C. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.11.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

RESERVED FOR ORDERS ON : 23.11.2024 PRONOUNCED ON : 12.12.2024 CORAM: HON'BLE MR. JUSTICE K NATARAJAN CAV ORDER This petition is filed by the petitioner/accused No.1 under Section 482 of Cr.P.C. for quashing the criminal proceedings in Spl.C.No.23/2024 arising out of Crime No. No.15/2019, pending on the file of VII Additional District and Sessions Judge, Tumkur, and charge sheeted for the offences punishable under Section 13(1)(a) of Prevention of Corruption Act, 1988, (herein referred to as 'P.C.Act.').

2. Heard the arguments of learned counsel for the petitioner, learned special counsel for the Lokayuktha/respondent No.1 and learned counsel for respondent No.2.

3. The case of the prosecution is that the respondent No.2/Joint Director of Land Records (herein after referred to as 'JDLR') filed the complaint to the then Anti Corruption Bureau alleging that accused persons recommended for the Phodi Durasthi of the land belonging to the Forest Department without proper verification in respect of survey No.46 of Ambarapur village, Tumkur district wherein out of this said land total measuring 4 of the said land was 421 acres, 35 guntas, out of which 300 acres said to be granted to the Forest Departments in the year 1926. Subsequently, 91 acres have been allocated to the Horticulture Department and the remaining 209 acres belongs to the Forest Department. The Revenue Department is having 121 acres 35 guntas and Revenue Department said to be granted occupancy rights to various persons, when the applications were made by the occupants for doing 'Phodi Durasthi' without properly verifying the documents, the accused have recommended for Durasthi and phodi and it was done. Thereby, the lands of the Forest Department has been recommended to phode. Even though the application of the Forest Department for bifurcation of land has been pending. Therefore, the accused persons committed an offence by doing 'Phodi Durasthi' and caused loss to the Forest Department for the pecuniary benefit of 103 acres and 5 guntas of land has been misused, thereby the charge sheet came to be filed. The accused persons being aggrieved by the same, filed this petition for quashing the charge sheet.

4. Learned counsel has contended that mainly on the ground, the Articles of charges were issued against 6 persons for the departmental enquiry, out of which, the departmental enquiry held, is not proved. Thereafter, Articles of charges issued against this 5 petitioner on the very same allegations. Whereas the petitioner approached the Karnataka Administrative Tribunal (KAT) and in turn KAT quashed the Articles of charges and departmental enquiry. Therefore, once the Articles of charges and the departmental enquiry went unproved, on the same charges, a criminal case cannot be proceeded. Therefore, the petitioner is entitled for quashing of the criminal proceedings.

5. Learned counsel also contended that once in the departmental enquiry the petitioner was exonerated from the Articles of charges, therefore once again on the same charge, criminal case cannot be registered. It is further contended that the State Government themselves granted the land to the various grantees and as per their revenue records, the lands were pertaining to the State Government or Revenue Department. Such being the case, the question of rejecting the request for Phodi does not arises. The petitioners have verified the documents, the Revenue Records and signed documents. The spot inspection made by the other officials, and based upon the same, he has forwarded for the Order. Therefore, there is no offence committed by the petitioner. Hence, prayed for allowing the Criminal petition. 6

6. Per contra, learned counsel for the respondent has objected petition, contending that the petitioner has not at all undergone any enquiry. The other accused persons were exonerated from the Articles of charges, where only one witness has been examined and the enquiry was not continued. Therefore, it was held unproved. Subsequently, the Articles of charges was issued against this petitioner. He has approached the KAT and KAT has quashed the Departmental Enquiry, only based upon the parity. But it was not gone into the merits of the case, on the ground that making enquiry is waste of time. Therefore, the criminal case cannot be quashed against the accused, he has signed the documents, forwarded the records to the Director for passing the order. He himself recommended the same. Even though there was order in the year 1926 for granting 300 acres of land to the Forest Department and out of which 91 acres was given to the Horticulture Department. The Revenue Department is left only with 121 acres. Such being the case, the question of recommending Phodi for 225 acres, is not correct. Extra 103 acres were recommended by the petitioner. Therefore, there is clear case of causing loss to the Forest Department for pecuniary benefit. Therefore, the FIR or charge sheet cannot be quashed. Hence, prayed for dismissing the petition. Both the counsel relied upon various judgement of Hon'ble Supreme Court on either side.

7. Having heard the arguments and perused the records. On perusal of the records, which reveals that the petitioner said to be the Joint Director of Land records and he said to be recommended for Phodi Durasthi of the land in Sy.No.46 Ambarapur village, Tumkur district. It is alleged that the said land was 421 acres and 35 guntas, out of which 300 acres have been allocated to the Forest Department in the year 1926 itself and out of the 300 acres of Forest land, 91 acres of land said to be allocated to the Horticulture Department and the remaining land was 209 acres belonging to the Forest Department. The petitioner said to be recommended for Phodi Durasthi for 225 acres of about 78 people, more than 103 acres of the land belonging to the Forest Land. Out of 421 acres, only 121 acres are remaining with the Revenue Department, but the petitioner recommended for 225 acres i.e, 103 acres more than the part not available to the Revenue Department, which belongs to the Forest Department, whereby he has commited misconduct.

8. The only contention of the petitioner is that in the departmental enquiry proceedings, he has been exonerated. Therefore , the Criminal proceedings cannot be sustainable. The learned counsel relied upon the judgment of Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari Vs Deputy Superintendent of Police, EOW, CBI and Anr reported in 8 (2020) 9 SCC 636. Another case in (2011) 3 SCC 581 in case of Radheshyam Kejriwal Vs State of West Bengal & Anr. In Another case, (2023) SCC online 1083 Abhishek Vs State of Madhya Pradesh. The Hon'ble Supreme Court in Ashoo Surendranath Tiwari stated supra has held at para No.12 by relying upon judgment of Radheshyam Kejriwal's case as under;

12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows:

(Radheshyam Kejriwal case, SCC p. 598) "38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

                (ii)     Decision    in    adjudication
          proceedings is not necessary before
          initiating criminal prosecution;

                (iii)    Adjudication      proceedings
          and      criminal       proceedings          are
          independent in nature to each other;

                (iv)     The    finding    against     the
          person       facing   prosecution       in   the

adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

9. On the other hand, the respondent counsel also relied upon the latest judgment of Hon'ble Supreme Court in the case Puneet Sabharwal Vs CBI reported in 2024 SCC Online SC 10

324. Also, in case of Sanju Rajan Nayar Vs Jayaraj and Anr reported in 2024 SCC Online SC 582 Hon'ble Supreme Court held as under;

7. In the aforesaid backdrop, in the considered view of this Court, the approach adopted by the Courts in quashing the FIR in the attending facts and circumstances, is legally unsustainable. It ventured into an inquiry, unwarranted at this stage, holding that there is no direct evidence that the present respondent had demanded any money and that there was no material to proceed against him, completely forgetting, if not ignoring the material which had surfaced during the course of investigation, amongst others, the pendrive, allegedly, indicating his complicity in the crime.

8. Under these circumstances, in the attending facts and circumstances, we allow the appeal, more so when despite the accused having been exonerated in the departmental proceedings yet the competent authority, vide Annexure P3 proceeded to accord sanction for prosecution. The High Court, in our considered view, failed to account for the principles enunciated by this Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

9. We may also observe that it was the pleaded case of the Lokayukta before the High Court that the continuance of the trial was not on the very same evidence as what weighed with the authorities in exonerating the employee in the departmental proceedings. This fact, also appears not to have been considered by the High Court in its correct perspective.

10. In Puneeth Sabharwal stated supra at para 41, 42 and 43 has held as under;

41. The appellants herein have further sought to place reliance on J. Sekar (supra) to argue that the letter of the Income-Tax Department was relied upon to quash prosecution under the Prevention of Money Laundering Act, 2002. In our opinion, this decision is again inapplicable to the present case. In J. Sekar (supra), the criminal proceedings had arisen based upon the information furnished by the Income Tax Department regarding recovery of unauthorized cash and other items during their search. It so transpired that the Income Tax Department accepted the explanation of the accused regarding the recovered cash which led to closure of the Income Tax proceedings. Thereafter, even the criminal proceedings led to filing of a closure report on the ground that no sufficient evidence was found for continuation of prosecution. The proceedings under the Prevention of Money Laundering Act, being based on the Income Tax Department's information after their search and the registration of FIR, were found to be unsustainable in view of no violation being found either by the Department or in the criminal proceeding.

42. The decision in J. Sekar (supra) is therefore distinguishable on facts. In the abovementioned case, there was an exoneration by not only the Income Tax Department, to the effect that no case was made, there was also an exoneration in the criminal proceedings which involved the Scheduled Offence. In the present case, the proceedings under the Income Tax Act which are sought to be relied upon relate to the assessment of income of the assessee and not to the source of income and the allegation of disproportionate assets under the Prevention of Corruption Act. The said Orders cannot be the basis to abort the criminal proceeding in the present case.

43. We are not to conduct a dress rehearsal of the trial at this stage. The tests applicable for a discharge are well settled by a catena of judgments 12 passed by this Court. Even a strong suspicion founded on material on record which is ground for presuming the existence of factual ingredients of an offence would justify the framing of charge against an accused person [Onkar Nath Mishra v. State (NCT of Delhi) (2008) 2 SCC 561 Paragraph 11]. The Court is only required to consider judicially whether the material warrants the framing of charge without blindly accepting the decision of the prosecution [State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 Paragraph 10]. Applying these principles to the present case, we accept the submission of the learned ASG that the appellants have not made out the case to say that the charge is groundless.

11. Hon'ble Apex Court also considered in case of State(NCT of Delhi) Vs Ajay Kumar Thyagi and held as under;

25. We are, therefore, of the opinion that the exoneration in the a departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy.

26. For the reasons stated above, the order of the High Court is unsustainable, both on facts and law. The accused shall appear before the trial court within four weeks from today. As the criminal proceeding is pending since long, the learned Judge in seisin of the trial shall make endeavour to dispose of the same expeditiously and avoid unnecessary and uncalled for adjournments.

27. In the result, the appeal is allowed, the order³ of the High Court is set aside with the direction aforesaid.

12. Learned counsel for the respondent also relied upon the judgment of the Single Bench of this court in connected matter in Criminal Revision Petition Nos.422/2018 C/w 599/2018, in the case of State by Karnataka Lokayuktha Police Vs T.Manjunath and others dated 26.7.2024, wherein the coordinate bench considering the judgment of Hon'ble Supreme Court and has held that the Criminal proceedings cannot be quashed. Merely, after the departmental enquiry, the accused has been exonerated, considering the documents on record. Now coming to the departmental enquiry initiated by the department as against the other accused where this petitioner also got quashed the departmental enquiry in the Karnataka Administrative Tribunal. The KAT on the application filed by the petitioner has held at para 9 as under;-

"9. I have compared the articles of charge against the applicant herein with the exoneration orders passed by the Respondent Government in respect of three officials under Annexures-A4 to A6. They are exactly one and the same. When with the similar allegations are made, the three officials have already been held not guilty and charges not proved 14 against them, similar charge against the application herein cannot be maintained. Looking to the reply statement, it is contended by the respondent Government itself that after the enquiry even this applicant may be held as not guilty. This shows that if the enquiry proceeded against the applicant it is mere waste of time and energy. Therefore, the applicant has made out a case."

13. Learned counsel for the respondents has contended that though the Articles of charges issued against other accused or co-employees, where the guilt was not proved, as most of the witnesses were not properly examined and due to long gap the charges were dropped by the State. However, this petitioner is a Joint Director of the Land Records and he is the main authority for issuing the records and recommended for the phodi. Though the Articles of charges were issued against him, but he has got quashed before the Appellate Tribunal, but the petitioner has not undergone any departmental enquiry and no appreciation of documents or evidence and he has been exonerated. But on the ground of parity he has got exonerated. Whereas, in this case a serious allegation against him is for mis-conduct or recommending for 'Phodi and durasthi' without properly looking to the documents. Thereby, more than 103 acres were recommended, excess than the land available for the Revenue Department.

14. The respondent counsel produced the documents especially the signature of the petitioner was found on most of the documents he has signed and recommended for the Phodi durasthi, it is available on record. These documents cannot be disbelieved by this court, without going for the trial. There are voluminous documents collected by the Investigating Officer and filed the charge sheet against the petitioner. Therefore, this court cannot sit and conduct the mini trial for appreciating the documents. The petitioner is required to take contention in the trial that he has done the duty in accordance with law by following all the procedure while cross examination of the witnesses. Therefore, Hon'ble Supreme Court in Ashoo Surendranath Tiwari case stated supra has held at para No.12 by relying upon judgment of Radheshyam Kejriwal's case as under;

12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598) "38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and 16

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

Here in this case, the exoneration of the petitioner from the departmental enquiry is on the technical ground and not on merits. Therefore, the exoneration in the departmental enquiry by the petitioner is automatically cannot be culminated, the criminal proceedings and charge sheet filed against him. Therefore, I am of the view, the petition filed by the petitioner is devoid of merits and is liable to be dismissed Accordingly, the petition filed by the petitioner is hereby dismissed.

Sd/-

(K.NATARAJAN) JUDGE AKV CT:SK

Unlock Advanced Research with PRISMAI

Karnataka High Court