Karnataka High Court
Sri. N.M. Theerthe Gowda vs State Of Karnataka By on 29 August, 2023
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NC: 2023:KHC:30727
CRL.RP No. 517 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL REVISION PETITION NO. 517 OF 2023
BETWEEN:
SRI. N.M. THEERTHE GOWDA,
S/O. N.K. MATADIAH,
AGED ABOUT 63 YEARS
SECRETARY-DR. RADHAKRISHNA TEACHERS
EDUCATION INSTITUTION,
VISHWANATHAPURA,
DEVANAHALLI TALUK,
BENGALURU RURAL,
BENGALURU - 562 110
...PETITIONER
(BY SRI: CHANDRASHEKAR REDDY .K.P., ADVOCATE)
Digitally signed
by PAVITHRA N AND:
Location: High
Court Of STATE OF KARNATAKA BY
Karnataka BY CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH,
BENGALURU, REPTD. BY
HIGH COURT BUILDINGS,
BENGALURU - 560 001
...RESPONDENT
(BY SRI: PRASANNA KUMAR .P.,
STANDING COUNSEL FOR RESPONDENT/CBI)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 CR.P.C PRAYING TO ALLOW THIS CRIMINAL REVISION
PETITION AND ALLOW THIS CRIMINAL REVISION PETITION AND
ALLOW THE APPLICATION DATED 31.01.2023 FILED BY THE
PETITIONER UNDER SECTION 300 OF CRPC VIDE ANNEXURE A NOW
PENDING ON THE FILE OF THE HONBLE XLVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES,
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NC: 2023:KHC:30727
CRL.RP No. 517 of 2023
BENGALURU (CCH-48) IN SPL.C.C.NO.234/2009, FOR THE ALLEGED
OFFENCE PUNISHABLE UNDER SECTION 420, 468, 471, 120-B OF
IPC AND SET ASIDE THE ORDER DATED 05.04.2023 VIDE ANNEXURE
B AND DISCHARGE THE PETITIONER/ACCUSED NO.2 SO FAR HE IS
CONCERNED.
THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Accused No.2 in Spl.CC No.234/2009 on the file of the learned XLVII Additional City Civil & Sessions Judge & Special Judge for CBI Cases, Bengaluru (CCH-48), (hereinafter referred to as 'the trial Court' for brevity), is impugning the order dated 05.04.2023 rejecting the application filed by him under Section 300 of Cr.PC, seeking his discharge for the offence punishable under Sections 420, 468, 471 r/w Section 120(B) of Indian Penal Code (for short 'IPC').
2. Brief facts of the case are that, the respondent- CBI, ACB, Bengaluru filed final report against accused No.2 and others for the offence punishable under Sections 120-B, 420, 468 and 471 of IPC and Section and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 ('PC Act' for short). Cognizance was taken by the trial Court and the accused were -3- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 summoned to appear before the Court. Accordingly, the petitioner- accused No.2 appeared before the trial Court and filed an application under Section 239 of Cr.PC, seeking discharge for the above said offences. It is contended by accused No.2 that he was tried for the very same offences under Sections 420, 468, 471 and 120-B r/w Section 511 of IPC in CC No.9283/2006 on the file of the learned XXXIX ACMM, Bengaluru and he was acquitted for the above said offences vide judgment of acquittal dated 25.02.2021. However, again final report is filed alleging commission of the offences by the accused under Section 468 of IPC and he is being tried in Spl.CC No.234/2009, which amounts to double jeopardy and it is not permissible in law, in view of Section 300(1) of Cr.PC. The said application was dismissed by the trial Court vide order dated 05.04.2023.
3. Being aggrieved by the same, accused No.2 is before this Court in the present revision petition.
4. Heard Sri Chandrashekar Reddy K.P., learned counsel for the revision petitioner/accused No.2 and Sri Prasanna Kumar P., learned standing counsel for the -4- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 respondent- CBI. Perused the materials including the trial Court records.
5. Learned counsel for the revision petitioner contended that initially the petitioner had filed similar application seeking his discharge. The said application came to be dismissed by the trial Court and the said order was challenged before this Court by filing Crl.RP No.669/2012. The said revision petition was considered along with the criminal revision petitions filed by other accused and common order was passed on 27.03.2019 dismissing the said petitions. However, liberty was reserved in favour of the petitioner to raise the said plea once again, if he is acquitted in CC No.9283/2006. Learned counsel submits that accused No.2 who is the petitioner herein is acquitted in CC No.9283/2006. Therefore, he again filed the application seeking his discharge. The trial Court without taking into consideration the scope of Section 300(1) of Cr.PC, proceeded to dismiss the application without assigning valid reasons. Therefore, he prayed to allow the revision petition, in the interest of justice. -5-
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6. Per contra, learned standing counsel for the respondent- CBI opposing the revision petition submitted that the revision petition is not maintainable either in law or in fact and the same is liable to be dismissed in limine. Similar application filed by the accused was already been dismissed by the trial Court as well as by this Court. Therefore, the petitioner cannot maintain the second petition under the same ground.
7. It is contended that the petitioner was running an educational institution under the name and style as "Dr. Radhakrishna Teachers' Educational Institute" at Devanahalli. In order to obtain permission from M/s. National Council for Teacher's Education ('NCTE' for short) to start D.Ed., B.Ed., and CP.Ed. courses, he submitted an application along with three forged fixed deposit receipts dated 12.07.2004 for Rs.5 lakhs each, drawn on Karagadamma Co-operative Bank limited, Basaveshwara Nagar, Yelahanka Branch in favour of NCTE and used the same as genuine FD receipts. Initially, on the basis of complaint lodged by one Sri M.Vasudeva, criminal complaint was registered and he was tried in CC No.9283/2006. In the meantime, the respondent- CBI registered suo-moto case -6- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 against the petitioner along with other accused for the offences stated above.
8. Learned counsel further submitted that the offence alleged against the accused in the present case for which, he is being tried and the offence for which he was tried in CC No.9283/2006 is not the same offence. Under such circumstances, Section 300 of Cr.PC does not come into operation and the accused cannot be discharged. He placed reliance on the decision in Babu Lal Mahton Vs. King Emperor1 to contend that the meaning of the word 'same offence' appearing in Section 300 of Cr.PC would mean "the charge was in substance the same as that necessary to sustain the second charge". In the present case, the charge for which the accused was tried in the earlier proceeding is not the same or similar to be framed in the present case and therefore, the application was rightly rejected by the trial Court.
9. Learned counsel further submitted that the charge has already been framed by the trial Court and as many as 24 witnesses are already been examined. Under such 1 -7- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 circumstances, the accused cannot be discharged at this stage. Therefore, he prays for dismissal of the revision petition as devoid of merits.
10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is;
"Whether the impugned order passed by the trial Court dismissing the application filed by the petitioner under Section 300 of Cr.PC, suffers from infirmity and illegality and same calls for interference by this Court? What order?"
My answer to the above point is in the 'Negative' for the following;
REASONS
11. It is the specific contention of the prosecution that accused no.2 while working as Secretary to Dr. Radhakrsihna Teachers' Educational Institute, Devanahalli, Bengaluru conspired and forged certain documents i.e., three fake FD receipts for Rs.15 lakhs, purported to have been issued by M/s. Karagadamma Co-operative Bank Ltd., Yelahanka Branch, Bengaluru, even though no such Co-operative Bank was in -8- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 existence. He also forged two FD receipts purported to have issued by Indian Bank, Ulsoor Branch with an intention to cheat and issued the same in favour of M/s. National Council for Teachers' Education, Southern Regional Committee, Bengaluru. Thereby, committed the offence punishable under Section 468 r/w Section 120(b) of IPC along with the offence punishable under Sections 420, 468, 471 r/w Section 511 of IPC and Section 13(2) r/w Section 13(1)(d) of PC Act.
12. It is contended that accused No.1 acting as Chairman of the Appellate Authority ordered de novo hearing and constituted a three member Committee consisting of accused Nos.3 to 5 to re-inspect the said Educational Institution for the purpose of granting recognition as sought by accused No.2. The Committee said to have inspected the premises and recommended for grant of permission to start D.Ed. course with intake of 50 students, even though there was no adequate physical and educational infrastructure. It is only in furtherance of the conspiracy between accused Nos.3 to 5, such permission was granted. It is stated that accused No.2 in furtherance of such permission, admitted 50 students for B.Ed. course for the academic year 2004-05 and 2005-06 without obtaining -9- NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 approval for the said years and collected huge sums of money from the students in the form of donations and fees. Accused No.2 fraudulently submitted the list of six faculty members without employing them and further preparing the attendance register. No regular classes were conducted for the said course. However, issued Certificates in favour of the students. It is contended that in furtherance of conspiracy, the accused concocted three fake FD receipts and presented the same before the NCTE, SRC for obtaining recognition. The two FD receipts issued by Indian Bank, Ulsoor Branch, Bengaluru came to be adjusted against the personal loan of accused No.2, alienating the security given to M/s. NCTE, SRC without their knowledge and consent. After coming to know about these facts, the respondent- CBI suo-moto registered the case against the petitioner and other accused for the above said offences.
13. It is the contention of learned counsel for the petitioner that since accused No.2 has already tried for the offence punishable under Section 468 of IPC in CC No.9283/2006, his trial again in Spl.CC No.234/2009 would amount to double jeopardy and therefore, he is entitled for
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 discharge, but the trial Court rejected the said application. Being aggrieved by the same, the petitioner is before this Court.
14. Copy of the judgment in CC No.9283/2006 dated 25.02.2021 on the file of the learned XXXIX ACMM, Bengaluru is produced before the Court. The following points were framed for consideration;
1) "Whether the prosecution proves beyond all reasonable doubts that the accused in order to obtain the permission to start D.Ed., B.Ed., and C.P.Ed. courses, sent 3 forged fixed deposits receipts of 5,00,000/- each dated 12-07-2004 drawn in Karagadamma Co-operative Bank Limited, Basaveshwarnagar, Yalahanka Branch through post to National Council for Teachers Education situated at HMT building at Jalahalli thereby committed an offence punishable u/s 468 of IPC.
2) Whether the prosecution further proves beyond all reasonable doubt that accused dishonestly used forged documents as genuine documents in order to obtain permission of the said courses and sent to the same to NCTE of Jalahalli
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 thereby committed an offence punishable u/s 471 of IPC.
3) Whether the prosecution further proves beyond all reasonable doubt that accused made an attempt to cheat by using the said forged documents and thereby committed an offence punishable u/s 420 r/w 511 of IPC.
4) What order?"
15. The trial Court in CC No.9283/2006 held that the prosecution is not successful in proving the guilt of the accused for the above said offences and accordingly, acquitted the petitioner.
16. In Spl.CC No.234/2009, various allegations are made against the accused including the petitioner for having committed the offence punishable under Sections 120-B, 417, 420, 468, 471 and under Section 13(2) r/w Section 13(1)(d) of PC Act. The charge framed by the trial Court on 18.02.2021 is produced before this Court as per Annexure-E and the charge for the offence punishable under Sections 420, 468 and 471 of IPC r/w Section 120-B, which is relevant to the facts of the present case reads as under;
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 "Fourthly, you accused No.2 while working as Secretary of Dr. Radhakrishna Teachers Educational Institution, Devanahalli, Bengaluru, in pursuance of the said conspiracy, got admitted 50 students for D.Ed., Course in Tamil Medium for the academic year 2004-05 and 2005-06 in your institution i.e., Dr. Radhakrishna Teachers Educational Institution, Devanahalli, Bengaluru, without obtaining approval from M/s. National Council for Teachers Education, Southern Regional Committee, Bengaluru and the Department of State Education Research and Training, Government of Karnataka, Bengaluru, and further got admitted 50 students to D.Ed., Course for the year 2006-07 in the said institution and had collected amount between Rs.50,000/- to Rs.1,00,000/- as donation/fees from the students without conducting regular classes resulting in creation of class of D.Ed., scholars without adequate knowledge or skill and thereby cheated students as well as general public and thereby committed the offence punishable under Section 420 r/w 120-B of IPC and the same is within my cognizance.
Fifthly, that you accused No.2 while working as Secretary of Dr. Radhakrishna Teachers Educational Institution, Devanahalli, Bengaluru, in pursuance of the said conspiracy, forged certain documents viz., three fake fixed deposit receipts for Rs.15 lakh, purported to have been issued by M/s. Karagadamma Co-operative Bank Ltd., Yelahanka Branch, Bengaluru, and no such bank was in existence, and two fixed deposit receipts purported to have been issued by Indian Bank, Ulsoor Branch, to wit, intending that it shall be issued for the purpose of cheating M/s. National Council for Teachers Education, Southern Regional Committee, Bengaluru, without their knowledge or consent and thereby committed the offence punishable under Section 468 r/w 120-B of IPC and the same is within my cognizance.
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 Lastly, that you accused No.2 while working as Secretary of Dr. Radhakrishna Teachers Educational Institution, Devanahalli, Bengaluru, in pursuance of the said conspiracy, fraudulently or dishonestly used the documents viz., three fake fixed deposit receipts for Rs.15 lakh as genuine, purported to have been issued by M/s. Karagadamma Co-operative Bank Ltd., Yelahanka Branch, Bengaluru, and two fixed deposit receipts purported to have been issued by Indian Bank, Ulsoor Branch, and the said FD came to be adjusted against your loan account, thereby alienated the security given to M/s. National Council for Teachers Education, Southern Regional Committee, Bengaluru and you accused No.2 had a dishonest intention from the beginning and submitted applications along with forged FD receipts for the purpose of availing the recognition for your institution i.e., Dr. Radhakrishna Teachers Educational Institution, Devahanalli, Bengaluru, and thereby committed the offence punishable under Section 471 r/w 120-B of IPC and the same is within my cognizance."
17. Now the question arises as to whether Article 20(2) of the Constitution of India and Section 300 of Cr.PC could be made applicable in favour of the petitioner to quash the criminal proceedings, which is now pending in Spl.CC No.234/2009 as the same would amount to double jeopardy. Article 20(2) of the Constitution of India bars prosecution and punishment of a person for the 'same offence' more than once. Similarly, Section 300 of Cr.PC bars trial of a person once convicted or acquitted for the 'same offence'.
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18. Therefore, we have understood the meaning of the word 'same offence' which is synonymously used in Article 20(2) of the Constitution of India and also under Section 300 of Cr.PC.
19. The Division Bench of Patna High Court in Babu Lal Mahton (supra) had an occasion to refer to the meaning of the words 'same offence' and held as under;
"It is a fundamental common law rule that no one may be punished twice for the same offence and this has long been held to mean that he may not be punished twice for the same acts or omissions irrespective of the exact terms of the charge, and that the test of similarity is whether or not the evidence to obtain a legal conviction on the first charge was in substance the same as that necessary to sustain the second charge."
(emphasis supplied)
20. The Court has also held that the offences are distinct and the evidence necessary in the first case is different from the evidence necessary in the second. Then, it cannot be held that both are same offences and therefore, common law rule is still maintained and is not interfered with.
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21. Learned counsel for the respondent has placed reliance on the decision of the Hon'ble Apex Court in State of Jharkhand through SP, CBI Vs. Lalu Prasad Yadav @ Lalu Prasad2. The Hon'ble Apex Court referring to Article 20(2) of the Constitution of India and Section 300 of Cr.PC held in para Nos.22 and 24 as under;
"22. Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is called the doctrine of double jeopardy. The objective of the Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime. There is a law maxim related to this, nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence. There are two aspects of doctrine of jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offence. Autrefois acquit means that the person has been acquitted on a same charge on which he is being prosecuted. The Constitution bars double punishment for the same offence. The conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter even if some ingredients of these two offences are common.
24. Section 300 refers to Sections 220 and 221 CrPC. No doubt it appears that a person who has been convicted or acquitted of the "same offence"
cannot be tried again considering the aforesaid 2 (2017) 8 SCC
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 provisions. Section 220(1) provides that if one series of acts is so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Section 220(1) is extracted hereunder:
"220. Trial for more than one offence.--(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.""
22. He has also relied on the decision of the Hon'ble Apex Court in M.Natarajan Vs. State by Inspector of Police, SPE, CBI, ACB, Chennai3, wherein the Hon'ble Apex Court by referring to similar offences punishable under Section 120(b) r/w Sections 420, 467 and 471 of IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, where the allegations made against the accused were overlapping between the two offences contained in IPC and other enactments and held in para No.39 as under;
"39. By way of almost a desperate effort Shri K. Subramanian, learned Senior Advocate then urged that the only offence which could have been alleged against any of the accused was under Section 132 of the Customs Act, 1962 i.e. of making a false declaration. The argument was that since the offence complained of related to the false 3 (2008) 8 SCC 413
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 declaration and false documents, the appellant could be prosecuted only under Section 132 of the Customs Act and not under the offences covered under the Penal Code. Section 132 of the Customs Act is as under:
"132. False declaration, false documents, etc.--Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both."
The argument is only to be rejected. It is not at this stage that we would consider the nature of offences under Section 132 of the Customs Act and/or those under the Penal Code, under which the appellant is being charged. However, merely because there may be some overlapping in the two offences, it does not mean that the appellant cannot be tried under the offences covered under the Penal Code. The Court would proceed to decide the question on the basis of the evidence led before it. We must hasten to add that merely because the appellant could be tried under Section 132 of the Customs Act, it does not mean that he could not be tried for the offence committed under the Penal Code. There is no such provision."
(emphasis supplied)
23. These decisions make it clear to constitute the meaning of the words 'same offence' referred to in the Constitution of India or under Cr.PC. The test of similarity to
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 be applied is as to whether or not the evidence to obtain a legal conviction on the first charge was in substance the same as that necessary to sustain the second charge.
24. The intention of the framers of the Constitution is to bar double punishment for the same offence, but not to bar trying of the accused for the two different offences with common ingredients. Simply because the penal provisions under IPC were already invoked against the accused, that will not attract either Article 20(2) of the Constitution of India or Section 300 of Cr.PC and it cannot be termed as double jeopardy to proceed with the trial of the accused for the same penal provisions with similar allegations which are overlapping in constituting the two offences.
25. When the accused was tried for the offences under Sections 468, 471 and 420 of IPC, it cannot be concluded that he is being tried for the same offence both in CC No.9283/2006 and Spl.CC No.234/2009.
26. The illustrations to Section 300 of Cr.PC makes the position very clear regarding the intention of the legislature. Illustration 'e' and 'f' of Section 300 of Cr.PC read as under;
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(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.
(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
27. While alleging commission of the offence of theft and robbery or robbery and dacoity may be similar, but both the offences cannot be termed as 'same offence' to attract either Article 20(2) of the Constitution of India or Section 300 of Cr.PC. The words used in these provisions are 'same offence' and not 'similar offence'.
28. In the present case, the offences alleged against the accused as could be made out from the charges framed against him in CC No.9283/2006, where he was acquitted and in Spl.CC No.234/2009 in which he is facing trial, as extracted above, disclose that even though the penal provisions under Section 468, 471 and 420 are invoked, the allegations to attract the said penal provisions are not same in substance. Even though the allegations overlap with one another, the
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 offences alleged against the accused in both these cases are distinct and the evidence that is required to be led by the prosecution in Spl.CC No.234/2009 is also different. Moreover, the prosecution has invoked Section 120-B and 417 along with Section 420, 468, 471 of IPC and also Section 13(2) r/w Section 13(1)(d) of PC Act, which is to be tried by the Special Court constituted under the special enactment.
29. Under such circumstances, by no stretch of imagination, it could be said that the petitioner/accused No.2 is being tried for same offence in Spl.CC No.234/2009 after his acquittal in CC No.9233/2006. Therefore, I do not find any merit in the contention taken by learned counsel for the petitioner. Accordingly, I answer the above point in the 'Negative' and proceed to pass the following;
ORDER
i) The criminal revision petition is dismissed.
ii) The impugned order dated 05.04.2023 passed in Spl.CC No.234/2009 by the learned XLVII Additional City Civil & Sessions Judge & Special Judge for CBI Cases, Bengaluru (CCH-
48), is confirmed.
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NC: 2023:KHC:30727 CRL.RP No. 517 of 2023 Registry is directed to send back the Trial Court records forthwith along with copy of this order.
Sd/-
JUDGE PN