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.1708 OF 2016 C/W CRIMINAL PETITION NO.586 OF 2016 IN CRIMINAL PETITION NO.1708 OF 2016 BETWEEN:
SRI N SRINIVASA REDDY S/O LATE N. NARAYANAPPA @ NARAYANA REDDY AGED ABOUT 56 YEARS EXECUTIVE ENGINEER BYATARAYANAPURA DIVISION BBMP, BENGALURU PRESENTLY R/AT NO.138, 3RD B CROSS, 2ND STAGE, 7TH BLOCK, NAGARABHAVI, BANGALORE-72 ... PETITIONER (BY SRI: Y.R.SADASIVA REDDY, SENIOR ADVOCATE A/W SRI: B ROOPESHA, ADVOCATE) AND STATE BY KARNATAKA LOKAYUKTHA SPECIAL INVESTIGATION TEAM REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR M.S.BUILDING,DR.B.R.AMBEDKAR VEEDHI, BENGALURU-01 … RESPONDENT (BY SRI: VENKATESH S ARBATTI, SPL.PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE REGISTRATION OF THE FIR AND COMPLAINT DATED 06.05.2015 IN CR.NO.29/2015 REGISTERED BY THE RESPONDENT KARNATAKA LOKAYUKTHA POLICE FOR THE OFFENCES P/U/Ss 13(1)(a), 13(1)(d) R/W 13(2) AND 12 OF THE PREVENTION OF CORRUPTIION ACT VIDE ANNEXURE-A AND B AND THE PROCEEDINGS IN CR.NO. 29/2015 REGISTERED BY THE RESPONDENT KARNATAKA LOKAYUKTHA POLICE FOR THE OFFENCES P/U/S 13(1)(a), 13(1)(d) R/W 13(2) AND 12 OF THE PREVENTION OF CORRUPTIION ACT PENDING ON THE FILE OF XXIII ADDL. CITY CIVIL AND S.J., AND SPECIAL COURT FOR PREVENTION OF CORRUPTION ACT, BENGALURU CITY, ANNEXURE-C.
IN CRIMINAL PETITION NO.586 OF 2016 BETWEEN:
MR Y V MURALI MOHAN S/O. SRI. VENKATESH, AGED ABOUT 38 YEARS, CIVIL CONTRACTOR, R/AT NO. 85, KODIGEHALLI OLD VILLAGE, KOTE BEEDHI, BANGALORE ... PETITIONER (BY SRI: MURTHY DAYANAND NAIK, ADVOCATE) AND STATE BY KARNATAKA LOKAYUKTA SPECIAL INVESTIGATION TEAM, REP BY ITS SPECIAL PUBLIC PROSECUTOR, M.S. BUILDING, BANGALORE 01 ... RESPONDENT (BY SRI: B S PRASAD, SPL.PP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE REGISTRATION OF FIR IN CR.NO. 29/2015 REGISTERED BY THE RESPONDENT POLICE DATED 06.05.2015 FOR OFFENCES P/U/S 13(1)(A),13(1)(D), 13(2) R/W SEC 12 OF P.C ACT, PENDING ON THE FILE OF THE XXIII ADDL. CITY CIVIL AND S.J., FOR PREVENTION OF CORRUPTION ACT, BANGALORE CITY.
THESE CRIMINAL PETITIONS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R A FIR came to be registered against the petitioner in Crl.P.No.1708/2016 (accused No.1) and petitioner in Crl.P.No.586/2016 (accused No.2) for the offences punishable under Sections 13(1)(a), 13(1)(d) and 12 r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short “Act”). After registration of the complaint, the Police Inspector attached to the Karnataka Lokayukta, Bengaluru City conducted a raid and on personal search of accused No.1, he was found in possession of Rs.7,000/-. The said amount was not declared in the office. Accused No.1 failed to offer satisfactory explanation for possession of the said amount, hence, the amount was seized. On seeing the raiding team, accused No.2 threw a wad of notes through the window which was also seized. It contained Rs.20,000/-. On enquiry, accused No.2 led the raiding team to Maruti Suzuki Ritz Car parked in the premise of Byatarayanapura Bruhath Bengaluru Mahanagara Palike (for short “BBMP”) Ward Office. In the boot of the said car, there were 12 files belonging to BBMP. The same were seized. A panchanama was drawn at the spot in the presence of witnesses and investigation is being continued. In the meanwhile, petitioners have approached this Court seeking quashment of the above proceedings under Section 482 of Cr.P.C.
2. I have heard Sri.Y.R.Sadasiva Reddy, learned Senior Counsel appearing on behalf of learned Counsel for accused No.1, Sri.Murthy Dayanand Naik, learned Counsel for accused No.2 and Sri.B.S.Prasad, learned Standing Counsel appearing for respondent-Lokayukta.
3. Learned Senior Counsel appearing for the petitioner/accused No.1 submits that the prosecution was initiated based on credible information said to have been received by the complainant. In the complaint, it is stated that the information was verified before proceeding to the spot, but no material is produced to show that any such preliminary enquiry was conducted before conducting the raid. Even in the matter of conducting raid and personal search of accused No.1, a meager amount of Rs.7,000/- was found. Accused No.1 carried the said amount to clear his medical bills. In proof thereof, the bills issued by Kanva Diagnostics Services (P) Ltd., is produced before the Court. Therefore, there was satisfactory explanation for possession of the said amount by accused No.1. That apart, no material was available to show that the said amount was collected by accused No.1 as illegal gratification. No complaint has been lodged either by the general public or by any of the contractors alleging that accused No.1 had collected the said amount against a demand made by him for the purpose of any official favour. In the absence of any such material, there was no basis for the respondent to hold that the amount in possession of petitioner No.1 was an illegal gratification so as to attract the offence under Section 13(1)(a) or 13(1) (d) of the Act. Even otherwise, the allegations made in the FIR and the material collected by the respondent do not fall within the ambit of Section 13(1)(a) or 13(1)(d) of the Act.
Placing reliance on the decision of the Hon’ble Supreme Court in the case of M.R.Purushotham Vs. State of Karnataka rendered in Criminal Appeal No.1578/2011, learned Senior Counsel emphasized that in the absence of any clear evidence to show that there was any demand and acceptance of illegal gratification, the ingredients of Sections 13(1)(a) and 13(1)(d) of the Act are not made out. In the said circumstance, initiation of criminal process against petitioner No.1 and the investigation undertaken by the respondent is wholly illegal and an abuse of process of Court and thus, he seeks to quash the proceedings initiated against petitioner No.1.
Further, the learned Senior Counsel has emphasized that the records collected during panchanama clearly indicate that larger extent of money was found in possession of other officials of the BBMP, but the said amount was neither seized nor any prosecution has been launched against other officials. On the other hand, only accused No.1 is singled out with ulterior motive to stall his promotion as he was due for promotion at the relevant time. All these circumstances, therefore, suggest that the initiation of proceedings against accused No.1 is malafide, vexatious and obliquely motivated and on this score also the impugned proceedings are liable to be quashed.
4. Adopting the above arguments, learned counsel appearing for accused No.2 would submit that the averments made in the complaint and the contents of the panchanama do not make out any case against accused No.2. He was a private person. He was found in possession of amount of Rs.2,810/-. In the absence of any material to show that the said amount was collected for and on behalf of the public servant, there is no basis for the implication of accused No.2 in the alleged offence.
5. It is the contention of the learned counsel for accused No.2 that mere possession of money does not constitute any offence under the provision of P.C. Act. The presence of accused No.2 in the BBMP office is nothing unnatural as he being a Class-I contractor was entitled to hold the files relating to the contract and collect money. Further, he submits that apart from accused No.2, there were four other contractors, who were found in possession of money much more than the amount in possession of accused No.2 and no proceedings have been initiated against them.
6. Learned counsel for accused No.2 has also canvassed a legal plea that in trap cases, question of ‘surprise raid’ is not conceivable unlike in offences relating to assets which are disproportionate to the known source of income. In support of his submission, learned counsel has placed reliance on the Division Bench decision of this Court in SRI. GIRISHCHANDRA AND ANOTHER vs. THE STATE BY LOKAYUKTHA POLICE, YADGIR, reported in ILR 2013 KAR 983. Further placing reliance on the decision in PRAMOD vs. KARNATAKA LOKAYUKTA POLICE STATION, KARWAR in Crl.P.No.101410/2014 dated 11.07.2017, learned counsel has emphasized that it is not the case of the respondent that either accused No.1 demanded or received any bribe from any public in connection with an official favour. In the absence of any such material, there is no basis for implication of accused No.2 for the offence under section 12 of P.C. Act.
7. On the issue that “mere possession of currency with public servant is not a offence’” learned counsel has referred to the decision in L. SHANKARAMURTHY AND OTHERS vs. STATE BY LOKAYUKTHA POLICE, CITY DIVISION, BENGALURU URBAN DIVISION, BENGALURU, reported in 2012 (5) KAR.L.J. 545.
8. Refuting the above argument, learned Special Public Prosecutor appearing for the respondent however would contend that the credible information received by the respondent was reduced into writing. Said information was specific with regard to the petitioners viz., accused Nos.1 and 2 and hence a search warrant was obtained from the jurisdictional Court and thereafter raid was conducted. The allegations made in the complaint were found to be correct. During raid, both the accused persons were found in possession of money. That apart, the conduct of accused No.2 throwing the bundle of currency notes from the window is a matter which requires to be investigated as to the source of the said amount. Accused No.2 has not offered any explanation at the spot for possession of Rs.2,810/- or for possession of huge sum of Rs.20,000/-. The material collected by the investigating agency during raid prima-facie make out the ingredients of the offences under section 13(1)(a) and 13(1) (d) of P.C. Act. Since the matters are under investigation, the ramifications of the offences are required to be investigated from all angles and hence, at this juncture, there is no ground to quash the proceedings and thus seeks to dismiss the petitions.
I have given my anxious thoughts to the submissions made at the Bar and have carefully scrutinized the material on record.
9. It is not in dispute that accused No.1 was a public servant at the relevant time. The FIR is registered based on credible information received by the complainant. The contents of the said complaint prima-facie constitute ingredients of the offences punishable under sections 13(1)(a) and 13 (1) (d) of the Act. The veracity of the said information has been ascertained by the complainant by conducting preliminary enquiry as stated in the said complaint, which again is in conformity with the procedure laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of LALITHA KUMARI vs. GOVERNMENT OF U.P. reported in (2014) 2 SCC 1, wherein it is held that when any proceedings are initiated against public servant, it is not only advisable but also necessary to conduct preliminary enquiry to ascertain the correctness of the information. There is specific averment in the complaint that only after ascertaining the correctness of the information, a trap was arranged. The material on record clearly indicate that a search warrant was obtained from the concerned Court and thereafter the raid was conducted. The contents of the panchanama speaks for the regularity of the proceedings conducted by the respondent. On going through the panchanama, I do not find that the procedure followed by the respondent suffers from any jurisdictional error or infirmity warranting interference by this Court.
10. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
11. In the backdrop of the above process, if the facts of the instant cases are analysed, it is relevant to note that the raid has yielded incriminating material which is consistent with the allegations made in the FIR. In order to constitute an offence under section 13(1)(a) of the Act, a public servant should be in the habit of receiving or accepting for himself or for any other person any gratification other than legal remuneration as a motive or reward. It is the specific case of the prosecution that accused No.1 being an Executive Engineer was in the habit of receiving bribe from the contractors for the purpose of allotting tenders as well as for passing bills and clearing the files. Further, there are specific allegations that accused No.2 was acting as a conduit or middleman to accused No.1. The material on record clearly indicate that at the time of the raid, both the petitioners were found indulging in the said activities. Whether the money found in their possession was illegal gratification within the meaning of Section 13(1)(a) of the Act could be decided only after investigation. Records indicate that accused No.1 could not offer any explanation. It also needs to be noted that he being a public servant as per the Department Rules, was required to declare cash in his possession in the register maintained by the said Department. The records indicate that the said declaration having not been made by accused No.1 in the concerned register, investigating agency was well within their power to infer that the money received by accused No.1 was in the nature of illegal gratification. Even otherwise, after conclusion of investigation, an opportunity would be given to accused No.1 to offer his explanation as to the source of the said money. Therefore, having regard to the protocol of investigation involved in the nature of the offences falling under P.C. Act, it is not proper for this Court to interfere at this juncture. As the allegations made in the complaint as well as the material collected by the investigating agency prima-facie make out the ingredients of the offences under sections 13(1)(a) and 13 (1)(d) of P.C. Act, in my view, it is not proper to interfere in the investigation. Hence keeping open all the legal contentions urged by the petitioners for consideration at the appropriate stage, petitions are dismissed.
12. In view of the facts discussed above, the decision relied on by the learned counsel appearing for the petitioners are not applicable to the facts of these cases at this juncture.
13. The contentions urged by the learned senior counsel that accused No.1 had valid explanation for possession of the said currency notes also cannot be considered by this Court at this stage. As already observed, the said explanation is required to be considered by the Investigating Officer while forming the final opinion based on the material collected during investigation.
In view of the aforesaid discussion, petitions are dismissed.
Sd/- JUDGE Bkp/mn/-