IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 860/2017 BETWEEN 1. Shri Mohammad Wazir Baig S/o Anwer Baig Aged 63 years Residing at No.80, 6th cross Hanifa Masjid Road Kushal Nagar Bengaluru – 560045.
2. Shri Kalim Pasha S/o Amanulla Aged a48 years Residing at No. 287/10 17th Cross Devaraj Urs Nagar Bengaluru – 560 026. ... Petitioners (By Sri. Prakasha .A, Advocate for Sri Aravind .M Neglur - Advocate) AND Shri Sayed Zamer Pasha (IAS Retd.,) S/o Ghulam Hussain Aged 64 years Residing at No.27 Wellington Street Bengaluru – 560 025. ... Respondent (By Sri. Mahmood Patel, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 18.04.2017 passed by the XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru City in PCR No.7/2017 and direct the Lokayukta Court at Bengaluru to refer the complaint to the police for investigation and report in terms of Section 156(3) of the Code of Criminal Procedure.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER This petition is filed by the petitioners challenging the order passed by the XXIII Addl.City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bangalore City in PCR No.07/2017 dismissing the complaint.
2. The petitioners/complainants filed a complaint under Section 200 Cr.P.C. against the accused for the offences punishable under Section 13(b) (c)(i) of the Prevention of Corruption Act, read with Sections 463, 464 and 471 of IPC. It is stated in the complaint that accused was a public servant holding the post of Administrator and Special Officer of Karnataka State Board of Wakfs, who retired from service on 30.6.2012.
Sy.No.34 of Brahmapura village, Kalaburgi Taluk and District is the Wakfs property by notification dated 28.2.1989. Khwaja Education Society is a society registered under the Societies Registration Act. The said society and Wakfs Board entered into a memorandum of understanding with respect to the mortgage of the above mentioned property to a commercial loan to establish a medical college to be started by Khwaja Education Society. During the year 2003, the society sought permission from the Board for mortgaging the land in the aforesaid survey number in favour of the Commercial bank to raise the loan. Knowing fully well that Wakfs board cannot mortgage without permission of the Board, the said society has mortgaged the Wakfs Board land bearing Sy.No.34 to commercial bank and raised loan without sanction from the Board. It is alleged in the complaint that accused has accepted illegal gratification to mortgage Wakfs Board property to the commercial bank to raise loan thereby committing the offences under Sections 7, 13(c)(i) and (3) of the P.C.Act.
3. In support of the complaint the complainant had produced the Xerox copy of the memorandum of understanding between Dargha Hazarath Khaja Banda Nawaz and Khaja Education Society dated 7.1.2014. A Xerox copy of the letter dated 11.3.2003 and no objection certificate 5.12.2003 issued by the Chief Executive Officer, Karnataka State Board of Wakfs for having accorded permission to borrow loan from nationalized bank by mortgaging the land in Sy.No.34 was also produced. Further, copies of the letters seeking permission to prosecute the accused dated 10.10.2012 and 16.12.2013 were also produced. Xerox copy of the FIR for having registered the case against the accused for the offence under Section 13(1) (e) r/w Section 13(2) of the Act was also produced with the complaint. The Court below while referring to the said Xerox copies noted that the land in Sy.No.34 is in Brahmapura village, Gulbarga Taluk and District and the complainants have not presented the complaint to the jurisdictional Lokayukta Court at Gulbarga as the offence committed by the accused pertains to Gulbarga District. Further, it was noticed that the incident took place in the year 2005, but the complaint was presented in the year 2017 and moreover, the complaint does not disclose prima-facie case against the accused for taking cognizance for the alleged offences. On these grounds, the Court below dismissed the complaint filed by the petitioners/complainants vide order dated 18.04.2017. Hence, this criminal revision petition by the petitioners.
4. Learned counsel for the petitioners contends that the Court below erred in holding that it has no jurisdiction even when the memorandum of complaint clearly discloses that the offence relating to the Wakf property was committed in Bengaluru though the properties are situated in Kalaburgi District. It is further contended that the particulars of the offence cannot be unearthed without being investigated by the police, therefore, an investigation by the Police is absolutely necessary to bring home the guilt of the accused. The complaint prima-facie discloses the offence alleged against the accused, but the court below erred in the dismissing the complaint. On all these grounds, learned counsel for the petitioner seeks for allowing the petition by setting aside the impugned order passed by the Court below.
5. Per contra, learned counsel for the respondent contends that the Court below has passed well reasoned and considered order dismissing the complaint of the petitioners. He contends that the respondent/accused has already retired from service and the complainants have not given sufficient reasons in the complaint for the inordinate delay in filing the complaint. Moreover, the complaint does not disclose prima-facie case as against the accused for taking cognizance for the alleged offences. The Court below by considering all these aspects has rightly dismissed the complaint filed by the complainants/petitioners. Therefore, it does not call for interference of this Court. He sought that the petition being devoid merits, be dismissed.
6. In the context of the contentions as taken by the learned counsel for the petitioners and so also, learned counsel for the respondent, it is relevant to state that there is no dispute about the petitioners/complainants initiating proceedings against the respondent/accused in PCR No.07/2017 for the offence punishable under Section 13(b)(c)(i) of the Prevention of Corruption Act, r/w Sections 463, 464 and 471 of IPC. It is not in dispute that the accused was a public servant holding the post of Administrator and Special Officer of Karnataka State Board of Wakfs who retired from service on 30.6.2012. The complaint reveals that Sy.No.34 of Brahmapura Village, Kalaburagi Taluk and District is the Wakfs property. A memorandum of understanding was entered into between Khawaja Education Society and the Wakfs Board with respect to the mortgage of the said property. During the year 2003, the society sought permission from the Wakfs Board for mortgaging the land in the aforesaid survey number to raise loan. In its 27th meeting, the Wakfs Board sought for legal opinion regarding grant of sanction to mortgage the said land. But knowing fully well that Wakfs Board cannot mortgage without permission of the Board, the Khwaja Education Society has mortgaged the said land bearing SY.No.34 to Commercial Bank and raised loan without sanction. The accused at the relevant point of time, by accepting illegal gratification to mortgage Wakfs Board property to the commercial bank to raise loan has committed the aforesaid offences.
7. The contention of the respondent is that entering into an agreement in order to mortgage and obtaining loan from the Bank, is purely a matter of civil in nature. Despite that the complaint has been presented by the complainants by filing a private complaint before the Court below and the Court below has rightly dismissed the same.
8. It is relevant to notice that the land bearing Sy.No.34 of Brahmapura village pertains to the jurisdictional Lokayuktha Court at Gulbarga as the offence is committed by the accused relates to Gulbarga District. The contention of petitioner that the offence relating to the Wakf property was committed in Bengaluru and the Court below erred in holding that it has no jurisdiction, cannot be sustained and the Court below has rightly rejected the said contention. Further, according to the complainants, the incident took place in the year 2005, but the complaint is presented in the year 2017 with an inordinate delay of 12 years and the said delay has not been explained with justifiable reasons. Moreover, the accused has already retired from the service. The Court below has rightly dismissed the complaint holding that the complaint does not disclose prima-facie case against the accused for taking cognizance for the alleged offences. Based on jurisdictional aspect, non-explanation of inordinate delay and complaint lacking reasons to disclose prima- facie against the accused for taking cognizance, the Court below has rightly dismissed the complaint filed by the petitioners/complainants and I find no justifiable ground to interfere with same.
Therefore, for the aforesaid reasons and findings, the criminal revision petition deserves to be dismissed and accordingly, dismissed. The order dated 18.04.2017 passed by the Court below in PCR No.07/2017 is hereby confirmed.
DKB Sd/- JUDGE