R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.5713 OF 2019 BETWEEN :
MR. S. KRISHNALAL S/O L.M. SHIVANNA NAIK AGED ABOUT 34 YEARS RESIDING AT NO.97 1ST FLOOR, 5TH MAIN POSTAL COLONY SANJAYNAGAR BENGALURU-560 094 ... PETITIONER (BY SHRI. A.S. PONNANNA, SENIOR ADVOCATE FOR SHRI. C. ASHWIN, ADVOCATE) AND :
1. THE STATE OF KARNATAKA BY ANTI-CORRUPTION BUREAU KHANIJA BHAVAN RACE COURSE ROAD BENGALURU-560 001 2. SYED ASLAM PARVEEZ MAJOR NO.21, COCK BURN ROAD SHIVAJINAGAR BENGALURU-560 051 ... RESPONDENTS (BY SHRI. VENKATESH P. DALWAI, ADVOCATE FOR R-1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR REGISTERED IN CR.NO.13/2019 INITIATED BY THE RESPONDENT NO.1 (ANTI- CORRUPTION BUREAU) FOR THE ALLEGED OFFENCES P/U/S 13(1)(a) AND 13(2) OF PREVENTION OF CORRUPTION ACT AND SECTION 420,465,468,471 AND 120(b) OF IPC AGAINST THE PETITIONER HEREIN PENDING ADJUDICATION BEFORE THE HON'BLE XXIII ADDITIONAL CITY CIVIL AND SESSIOSN JUDGE (CCH-23).
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.09.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER An Assistant Engineer with Bangalore Mahanagara Palike (‘BBMP’ for short) has presented this petition with a prayer to quash FIR No.13/2019 registered on 11th April 2019 by the Karnataka Anti- Corruption Bureau, Bengaluru (‘ACB’ for short) .
2. Heard Shri.Ponnanna, learned Senior Advocate for the petitioner and Shri.Venkatesh P.Dalwai, learned Advocate for the ACB.
3. Shri.Ponnanna, made following submissions with regard to facts of the case:
that land bearing Sy. No.132 of Koudenahalli Village, K.R.Puram Hobli, Bengaluru East Taluk was proposed to be acquired for formation of 24 meters wide Road. Accordingly, preliminary notification was issued. Land owner’s power agent (GPA Holder), namely M/s. Vallmark Realty Holdings Pvt. Ltd., approached BBMP for issuance of Transferable Develoment Rights (TDR) Certificate. A relinquishment deed was executed by the said Company in favour of Commissioner, BBMP. The Deputy Commissioner, BBMP has issued TDR for 27386.11 sq. mtr. The land in question has been utilized for formation of road;
that one Syed Aslam Parveez filed the instant complaint alleging that petitioner and the Executive Engineer, by their illegal acts and abuse of official position had caused wrongful loss to BBMP to the tune of Rs.56.33 Crores in the matter of issuance of TDR Certificates. Accordingly, ACB has registered FIR No: 13/2019 alleging commission of offences punishable under Section 13(1)(a), 13(2) of Prevention of Corruption Act, 1988 (PC Act) and Sections 420, 465, 468, 471 read with Section 120B of Indian Penal Code (IPC) against five accused;
4. Assailing the FIR, Shri.Ponnanna urged following grounds:
That the complaint does not disclose any cognizable offence;
In the absence of disclosure of any cognizable offence, no investigation can be done ;
The procedure described at serial No.9 in the flow-chart containing the duty and responsibility of different officers, submitted by the ACB shows that the Revenue Inspector, BBMP must verify the documents, visit the spot with the Assistant Engineer TDR Section and prepare the Mahazar and send it to the Assistant Revenue Officer (ARO);
Similarly, the procedure described at serial No. 16 of the flow chart shows that the ARO, the Assistant Executive Engineer (AEE) and the Executive Engineer TDR Section must jointly approve the TDR check list, visit the spot and prepare the building valuation report. The AEE and EE must verify and approve the survey sketch and submit the file to the Superintending Engineer, Road Infrastructure, BBMP;
The duty and responsibilities of Engineers has been described in the office order dated 5th October 2009. It requires the Engineers to co- operate with the surveyors and provide prescribed forms to the owners of the property. Therefore, petitioner is not responsible for the alleged irregularity;
In the sketch prepared by the Surveyors annexed to the Relinquishment Deed dated 6th March 2014, signatures of various officials are found. The Deputy Commissioner has also signed the said survey sketch;
After following all procedures at various stages, TDR Certificate has been issued by the Commissioner, BBMP on 1st April 2014;
The acquisition was made in 2009. TDR Certificates have been issued in 2014. The complaint is filed in 2019. Hence, there is enormous delay in filing the complaint by a third party who is in no way concerned with the case;
Should there by any irregularity in issuance of TDR Certificate, the same is, at best, infraction in the procedure and at any rate, does not amount to commission of offences alleged in the FIR;
High Court while considering a petition under Section 482 Cr.P.C., is not required to see anything beyond averments contained in the complaint.
With the above submissions, Shri. Ponnanna contended that petitioner, who is at the lowest rank in the hierarchy has been singled out and targeted. Accordingly prayed for allowing this petition.
5. Shri. Venkatesh Dalwai argued opposing the petition.
6. I have carefully considered rival contentions and perused the records.
7. Petitioner is aggrieved by registration of FIR by the ACB. His principal grievance is that the instant FIR which has been filed after five years after issuance of TDR certificate, does not disclose any cognizable offence qua the petitioner. Before issuance of Certificate by the Commissioner BBMP, the application is considered at various levels.
8. On the other hand, ACB’s stand is that the complaint discloses sufficient information to infer that there has been irregularity in issuing the TDR Certificates. The Assistant Engineer of TDR Section is required to verify the documents and send the report to the Deputy Commissioner with regard to ‘ownership’ of the land and buildings. The investigation is in progress. Sanction to investigate has been accorded in petitioner’s case. Sanction in respect of other officials involved, is awaited. During the course of investigation, ACB has found out that 47 files are missing.
9. Shri.Dalwai further submitted that this Court in M/s. Sri. Nakoda Construction Ltd Vs. The State of Karnataka (W.P. No.16282/2017), by order dated 26th July 2019 has permitted the petitioner therein to amend the prayer to seek a direction to the ACB to conduct investigation into large scale fraud in issuance of TDR Certificates by BBMP between 2007 and 2015. This Court has issued several directions in that behalf. Further, a Division Bench of this Court in State of Karnataka Vs. M/s. Nakoda Constructions (W.A. No.3443/2019) decided on 24th September 2019 has directed ACB to conduct investigation in respect of FIR No.13/2019 registered by the ACB which is the subject matter of this petition.
10. Shri.Ponnanna, placed reliance on the passages from State of West Bengal & Ors Vs. Swapan Kumar Guha & Ors [(1982)1 SCC 561], quoted in paragraph No.26 of Dineshbhai Chandubhai Patel [(2018) 3 SCC 104] and they read as follows:
“26. This Court in State of W.B. v. Swapan Kumar Guha & Ors.[(1982) 1 SCC 561] had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle (SCC pp.576-77 & 598, paras 21 & 66) “21….. the condition precedent to the commencement of investigation under Section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.
66. “Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation the offence to be completed for collecting into materials for proving the offence.”
11. Thus, it is held in Swapan Kumar Guha that if the FIR prima facie discloses commission of offence, the investigation must go on.
12. Shri. Dalavai relied upon following authorities.
(i) Superintendent of Police, CBI and others Vs. Tapan Kumar Singh (2003)6 SCC 175 [paragraph No.20] (ii) Union of India Vs. Prakash P.Hinduja and another AIR 2003 SC 2612(1) [paragraph No.17 to 19];
13. In Tapan Kumar Singh’s case, Hon'ble Supreme Court of India has held as follows:
“20. It is well settled that a first information report is not an encylopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.”
14. In Prakash P.Hinduja’s case, it is held as follows:
19. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under S. 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.”
(emphasis is in original) 15. In the complaint on hand, it is alleged that a Company called M/s.Vallmark Realty Holdings (Pvt). Ltd., entered into two agreements to purchase TDR. The details of agreements such as dates of execution and registration numbers have been stated in the complaint. Similarly details of two registered GPAs in favour of M/s.Vallmark Realty Holdings (Pvt). Ltd and the relinquishment deeds in favour of BBMP have also been given. It is alleged in the complaint that the land owners had formed a residential layout and partitioned the sites among family members in 2002. They had also sold sites to various persons. After death of one of the family members Revanna, his legal heirs got revenue entries mutated in their favour. Thereafter they entered into agreements with the real estate company. The said real estate company managed to get highly inflated valuation reports. The details of TDR numbers and the measurements have also been given. It is also alleged that no action was taken by BBMP from 2009 to 2014. But from the date the real estate company entered the scene, the entire process was completed in 46 days. It is also alleged that there has been loss to the tune of Rs.56.33 Crores to the BBMP. Based on the allegations contained in the complaint, FIR has been registered and investigation is in progress.
16. The complaint in substance, alleges, firstly that inflated valuation reports were generated. Secondly that after the real estate company obtained general power of attorney to claim TDR and entered the scene, entire process was completed in 46 days, while it was otherwise pending for 5 years. Thirdly that the loss is estimated at Rs.56.33 crores. Thus, when examined in the light of Swapan Kumar Guha, in my view, the FIR, prima facie discloses serious irregularity in issuance of TDR and loss to public exchequer.
17. Transferable Developmental Rights in respect of land in a particular area can be used to develop land in other area. It is transferal like a ‘movable property’ or ‘cash’. Inflation of value of acquired property means issuance of TDR higher than the legitimate eligibility. This results in loss to public exchequer. Therefore an investigation is necessary.
18. It is ACB’s case that, when an application for issuance of TDR is received, it is examined by the Deputy Tahsildar. Thereafter, the Assistant Engineer is required to verify the ‘documents’ and submit a report with regard to the ownership of sites and buildings.
19. It was also argued on behalf of the ACB that FIR has been registered not only against the complainant, but there are in all nine accused which include S.Ramesh, Assistant Executive Engineer, Road and Infrastructure, Mahadevapura, Eshwaraiah Prasanna, Assistant Revenue Officer, BBMP, Mahadevapura, M.N.Devaraju, Assistant Engineer, TDR Division, Mahadevapura, Ramegowda, Executive Engineer, Road and Infrastructure, BBMP, Mahadevapura, Umanand Rai, Deputy Commissioner, BBMP, Mahadevapura, Smt.Gayathri, Deputy Tahsildar, K.R.Pura Hobli, M.C.Jagannatha Reddy, Revenue Inspector, K.R.Pura and Chandrashekar N., Village Accountant, K.R.Pura.
20. Shri.Ponnanna disputed that a Division Bench of this Court in W.A. No.3443/2019 (State of Karnataka Vs. M/s. Nakoda Constructions) has directed investigation, into the FIR in question. However, Shri. Nataraj, learned Additional Advocate General, who was present in the Court submitted that he had appeared before the Division Bench in the said case and asserted that this Court has indeed directed investigation into FIR No.13/2019 which is subject matter of this petition.
21. Therefore, the grounds urged on behalf of the petitioner that complaint does not disclose any offence and that petitioner is being singled out and unfairly targeted are factually unfounded. Further, a Division Bench of this Court has directed investigation in respect of FIR No.13/2019 which is the subject matter of this petition.
22. In view of the above discussion, this petition must fail and it is accordingly dismissed.
23. In view of disposal of this petition, I.A. No.2/19 does not survive for consideration and the same is disposed of.
No costs.
Sd/- JUDGE SPS