IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9627/2017 BETWEEN:
DR. BABURAO MUDBI AGED ABOUT 64 YEARS OCCUPATION: RTD. IAS OFFICER 281M 4TH CROSS, RMV EXTENSION 2ND BLOCK, 2ND STAGE SANJAYANAGAR, BENGALURU – 560 094.
... PETITIONER (BY SMT. MANJULA N TEJASWINI., ADVOCATE SRI. RAGHAVENDRA L MISKIN, ADVOCATE) AND:
THE STATE OF KARNATAKA BY KARNATAKA LOKAYUKTA POLICE STATION SPL.P.P. M.S.BUILDING BENGALURU - 560 001.
... RESPONDENT (BY SRI. B.S. PRASAD. ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:08.11.2017 PASSED BY HON'BLE LXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH- 78) AND SPECIAL JUDGE CCH-78 LOKAYUKTHA, MAYOHALL, BENGALURU IN SPECIAL CASE NO.17/2015 IN ANNEXURE-F.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who has been charged for the offences punishable under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 in Spl. C.No.17/2015 is before this Court for quashing of the order dated 08.11.2017 passed by LXXVII Additional City Civil Judge & Sessions Judge and Special Judge, Bengaluru (CCH -78), whereunder application filed under Section 91 Cr.P.C requesting the Court to permit the accused to produce certain documents mentioned in the list has been rejected.
2. Application in question came to be filed by the petitioner-accused contending that during the course of investigation, Investigating Officer has submitted schedule information as against accused in schedule 1 to 23 in 4 volumes and on 01.03.2010 additional information along with records came to be submitted before ADGP, Lokayukta, Bangalore and wantonly Investigating Officer did not produce income tax returns of accused and his family members, though, he had made correspondence with the Income Tax Department with a malafide intention to file vexatious charge sheet against accused. Non production of 4 volumes and 1 additional volume submitted by the Investigating Officer during the course of investigation has a bearing on the merits of the case and as such, requested the Court to allow the application and permit the accused to produce said documents.
3. Said application came to be opposed by the learned Public Prosecutor by filing a detailed statement of objections contending that accused has not produced any such documents before the Investigating Officer and since those documents are not collected by the Investigating Officer, question of permitting the accused to produce the same would not arise. Hence, contending that accused would be at liberty to produce the same at the time of trial, prosecution sought for rejection of the application.
4. Learned Special Judge, after considering the rival contentions, has noticed that prosecution has placed reliance on the evidence collected by the Investigating Officer at the time of investigation including the documents produced along with charge sheet to contend that there is prima facie case against accused to prosecute him for the offences alleged and at the time of considering the application for discharge, present application has been filed under Section 91 Cr.P.C. It came to be held that prosecution has to prove the fact that all the properties standing in the name of accused and his family members are the properties of the accused and burden lies on the prosecution to establish that they are benami properties of the accused nominally purchased in the name of his family members and at the time of considering the prayer for discharge, Court has to consider the material placed by the prosecution along with charge sheet and as such documents sought for being summoned would not be required and accordingly, rejected the application.
5. It is the contention of Smt. Manjula N. Tejaswi, learned Advocate appearing for petitioner that documents which are sought to be produced have a vital bearing on consideration of the application for discharge and by permitting the petitioner –accused to produce said documents right of the prosecution would not be infringed, but on the other hand, learned Special Judge would be in a better position to adjudicate whether charges are to be framed against petitioner or charge sheet material including the material which the petitioner has sought for being produced was also a part and parcel of the investigation, which has since been withheld, would tilt the balance on either side of the parties and as such production of said documents would have bearing on the petitioner’s prayer for discharge which the Special Judge ought to have allowed. Hence, she prays for allowing the petition.
6. Per contra, Sri. B.S.Prasad, learned Advocate appearing for respondent has supported the impugned order.
7. Since there was a factual doubt with regard to documents sought for production being part and parcel of the investigation or not and on account of petitioner –accused asserting that same had been produced and it is part of the investigation, which was stoutly denied by the counsel appearing for respondent – Lokayukta, this Court had called upon the respondent to file an affidavit of the Investigating Officer and accordingly, on 07.02.2019 affidavit of Sri. Srinivasa, Deputy Superintendent of Police, Karnataka Lokayukta, Bengaluru has been filed whereunder he has categorically stated that office of the Superintendent of Police had sent individual requisition to collect income tax returns of the petitioner and his family members in respect of each of the income tax assessees on the basis of the PAN number and in reply, Public Relation Officer -2, Income Tax Department has stated that name, address and PAN number of ‘Sri. Laxmi Vidyavardaka Trust’, assessee (Sl.No.7 in requisition) did not appear in the computer data. He further states that even reminder sent to the Income Tax Department has not found a favourable reply. However, a categorical statement has been made on 22.09.2009 that his office has received details of Income tax returns in respect of petitioner. It is also stated that in respect of remaining family members, income tax returns have not been received. In fact, a communication dated 10.09.2009 received from the office of the Assistant Commissioner of Income Tax, addressed to respondent on perusal would clearly indicate that copies of the intimation issued under Section 143(1) of Income Tax Act, 1961 for the assessment years 2002-2003, 2003-2004, 2006-2007 and 2007-2008, in circle 13(1), for the assessment year 2004-2005, 2005-2006 have been received which is said to be a part of the charge sheet material.
8. At this juncture, it would be apt and appropriate to note that petitioner –accused who is now a retired IAS officer claims to have submitted certain documents to the Investigating Officer and yet no acknowledgment was produced for having handed over such voluminous documents. In the absence of the said acknowledgement being made available and on account of assertion made by learned Advocate appearing for petitioner, affidavit of the Investigating Officer was called for. Said affidavit, as noticed herein above, does not disclose about any other details/documents having been received by the Investigating Officer with regard to family members of the petitioner. As such, at this stage, order passed by the trial Court dismissing the application cannot be found fault with. It is always open to the accused to produce the documents now sought for being produced in the event of charge being framed or application for discharge being dismissed or at the time of tendering evidence in rebuttal if so advised/desired to establish falsify the case of the prosecution.
Hence, criminal petition stands dismissed subject to observations made hereinabove.
All pending applications stands consigned to record.
SD/- JUDGE Sp/RU