IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5605 OF 2016 BETWEEN:
1. SRI BHOJARAJU S/O LATE UGRE GOWDA, AGED ABOUT 53 YEARS, R/AT NO.43, 35TH CROSS, 2ND BLOCK, RAJAJINAGAR, BANGALORE - 560 010 2. SRI KANTHARAJU S/O LATE UGRE GOWDA, AGED ABOUT 45 YEARS, R/AT C/O B N RAMANNA, BAGINIGERE, THIPPASANDRA HOBLI, MAGADI TALUK, BANGALORE DISTRICT-562131. ... PETITIONERS (BY SRI: S KALYAN BASAVARAJ, ADVOCATE) AND 1. STATE OF KARNATAKA BY LOKAYUKTHA POLICE, TUMKUR-572101.
2. SRI VIRUPAKSHE GOWDA S/O LATE UGRE GOWDA, AGED ABOUT 50 YEARS, R/AT 59A, 3RD MAIN ROAD, 1ST STAGE, 1ST PHASE, MANJUNATHA NAGAR, RAJAJINAGAR, BANGALORE - 560 010. ... RESPONDENTS (BY SRI: VENKATESH P DALWAI SPL PP FOR R1-ABSENT; SRI: C.S.MADHU, ADVOCATE FOR R2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FINAL REPORT - CHARGE SHEET FILED IN SPL.C.C.NO.168/2016 ON THE FILE OF THE II ADDL. DIST. AND S.J., TUMKUR IN RESPECT OF THE OFFENCES ALLEGED TO HAVE BEEN COMMITTED BY THE PETRS. AND OTHER ACCUSED P/U/S 166,406,420,468,470,471,477(K) AND 120B R/W 34 OF IPC AND SEC.8,13(1)(C) AND 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are aggrieved by the charge sheet laid against them for the offences punishable under Sections 166, 406, 420, 468, 470, 471, 477, 477(K), 120B r/w Section 34 of Indian Penal Code and Sections 8, 13(1)(c) and 13 (2) of the Prevention of Corruption Act, 1988.
2. Petitioners and respondent No.2 are brothers.
Respondent No.2 herein filed a private complaint under Section 200 of Cr.P.C. in PCR No.1/2014 against Sri.H.B.Lingaiah (accused No.1) making a specific allegation that during his tenure as Secretary of C.S.Pura Gram Panchayath, the said accused No.1 illegally changed the khata in respect of the property belonging to the complainant and his brothers, deleting the name of the complainant and showing the said property as vacant even though it contained a cinema theatre. This complaint was referred for investigation under Section 156(3) of Cr.P.C. After investigation, charge sheet has been laid against the aforesaid accused No.1 as well as the present petitioners herein showing them as accused Nos.3 and 4.
3. The allegation made in the charge sheet is that, at the instance of the present petitioners, accused No.1 illegally changed the khata of property bearing No.681/848/864 and further the petitioners herein got up a General Power of Attorney and on the strength of the said General Power of Attorney alienated the said property.
4. Heard learned counsel for the petitioners and the learned counsel for respondent No.1.
5. Learned counsel for the petitioners submits that the petitioners herein were not named in the private complaint lodged by respondent No.2. There were no allegations whatsoever in the complaint attracting any of the above offences. On the other hand, on similar charges, a case was registered against the petitioners herein in Crime No.26/2010, which culminated in filing a charge sheet for the offence under Sections 166, 379 and 420 of Indian Penal Code. In the said charge sheet, petitioners herein are cited as charge sheet witnesses. During the pendency of the said case, instant proceedings are initiated and a charge sheet has been laid against the petitioners without there being any material in proof of complicity of the petitioners in the alleged offences.
Learned counsel submits that the alleged General Power of Attorney was executed by Narasimha Murthy and Kantharaju namely, petitioner No.2 herein in respect of their respective share and not in respect of the lands of the complainant. As such, there is no basis for the prosecution of the petitioners. He further contends that in view of the earlier complaint lodged by respondent No.2, which has resulted in charge sheet in Crime No.26/2010 (C.C.No.130/2016), the registration of the instant complaint against the petitioners is contrary to law and is liable to be quashed.
6. Learned counsel for respondent No.2 has argued in support of the impugned charge sheet contending that the allegations made against the petitioners prima facie disclose the commission of offences under Sections 166, 406, 420, 468, 470, 471, 477, 477(K), 120B r/w Section 34 of Indian Penal Code and Sections 8, 13(1)(c) and 13 (2) of the Prevention of Corruption Act and therefore, there is no ground to quash the proceedings.
7. Considered the submissions and perused the records.
8. Insofar as the offences under the provisions of Prevention of Corruption Act is concerned, the petitioners herein are not the public servants. There are absolutely no allegations in the charge sheet that the alleged offence was committed by accused No.1 at the instigation or abetment of the petitioners. On the other hand, the allegations made in the complaint as well as in the charge sheet disclose that, accused No.1 mutated the khata extract in respect of the properties by deleting the name of the complainant therefrom. No material has been produced either by way of any application filed by the instant petitioners seeking deletion of the said name, nor is there anything on record to show that the petitioners herein have given a statement before accused No.1, seeking mutation of the khata extract. There are also no allegation of payment of any gratification or exertion of influence by the petitioners on accused No.1 so as to make out the charge under Section 8 of the Prevention of Corruption Act. The material produced by the prosecution does not prima facie make out any of the offences against the petitioners herein.
9. Insofar as the allegation pertaining to the General Power of Attorney is concerned, I have perused the said General Power of Attorney, which is a part of charge sheet. The said General Power of Attorney is executed by one Narasima Murthy and Kantharaju. The recitals therein indicate that the executants therein have empowered their Attorney Sri.Bhojaraju to deal with their properties. The said General Power of Attorney cannot be construed as conferring any power on the aforesaid Attorney Bhojaraju to deal with the properties of the complainant. Therefore, even in this regard, there is no basis to contend that the petitioners herein have falsified the records and on the strength of the said documents, have alienated the property of the complainant.
10. The records produced before this Court clearly indicate that the complainant has instituted another parallel proceedings against accused No.1 on the specific allegation that accused No.1 was instrumental in getting the khata mutated by deleting the name of the complainant. In the said proceedings, there were no allegation whatsoever that the petitioners herein used their influence in bringing about the said khata. On the other hand, petitioners are arrayed as witnesses in the said proceedings, making it evident that the mutation has taken place without the participation of the petitioners. Even otherwise, in the wake of the above proceedings, if for any reason the petitioners are involved in the falsification of the khata records, it is always open for the complainant to implead the petitioners herein as co- accused in the said proceeding by making necessary application under Section 319 of Cr.P.C. Hence, keeping open the said remedy to the prosecution, the instant proceedings initiated against the petitioners being wholly baseless amounting abuse of process of Court, insofar as the petitioners are concerned are liable to be quashed.
11. To this extent, petition is allowed. Proceedings pending in Spl.C.C.No.168/2016 on the file of II Additional District and Sessions Judge, Tumkur are quashed only insofar as petitioners herein are concerned.
Bkp Sd/- JUDGE