IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.817 of 2018 BETWEEN STATE OF KARNATAKA BY LOKAYUKTHA POLICE, REPRESENT BY PSI, LOKAYUKTHA POLICE, DAVANAGERE – 577 438. ... PETITIONER (BY SRI B.S. PRASAD., ADVOCATE) AND 1. K. BORAPPA S/O. KENCHAPPA, AGED ABOUT 64 YEARS, DISTRICT REGISTRAR, REGISTRATION DEPARTMENT, JAYANAGARA, BANGALORE.
RESIDENT OF No.3727/A 24, 15TH MAIN ROAD, 7TH CROSS, KUVEMPU NAGARA, MCC B-BLOCK, DAVANAGERE – 577 438.
2. VINODA KUMAR S/O. KHOOBLILAAL RANKA, AGED ABOUT 51 YEARS, RESIDENT OF No.35, RANKASHREE NILAYA, M.B.T. ROAD, BENGALURU – 560 002. ... RESPONDENTS (BY SRI K. MANJUNATH, ADVOCATE FOR R-1; SRI BIPIN HEGDE, ADVOCATE FOR R-2) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 18.06.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE (LOKAYUKTHA), DAVANAGERE, IN SPL(LOK) C.No.12/2014.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.03.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER This Criminal Revision Petition is filed by the Lokayuktha Police, being aggrieved by the order passed by the Prl. District and Sessions Judge and Special Judge (Lokayuktha), Davanagere in Spl.(LOK) Case No.12/2014 dated 18.06.2018 for having allowed the application filed by respondent No.2-Vinoda Kumar under Section 457 of Cr.P.C. for having released the amount of Rs.1,31,37,500/- to him.
2. Heard the arguments of Sri Venkatesh Arabatti, learned Special counsel for the petitioner and the learned counsel for respondent No.2.
3. The case of the petitioner before the trial Court is that the Lokayuktha Police, Davanagere, registered a case against respondent No.1 - K. Borappa, who is District Registrar, in Crime No.4/2012 for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 on the ground that the Rural Police, Davanagere, had recovered Rs.96,90,000/- from Sri Baliyar Chandrappa and Rs.34,47,500/- from Sri Banappa in Crime No.67/2012 for the offence under Sections 41(d) and 102 of the Code of Criminal Procedure. During interrogation, it was revealed that the said amount belongs to the accused-K.Borappa. Therefore, the case was transferred to Lokayuktha. In turn, Lokayuktha registered the case. The seized amount was transferred to the Lokayuktha Police. It is further alleged that the accused informed to the Lokayuktha that the amount belongs to respondent No.2-Vinoda Kumar, who is said to be a builder. Being not satisfied with the explanation, the Investigating Officer filed the charge sheet against the accused-K. Borappa holding that the said amount belongs to the accused and he was amassed wealth to the extent of 520% more than his known source of income.
4. During the course of pendency of the case, respondent No.2-Vinoda Kumar filed an application for releasing the said cash for interim custody under Section 457 of Code of Criminal Procedure and the same was allowed by the trial Court which is challenged herein.
5. The special counsel for the petitioner – Lokayuktha contended that the main case of the prosecution itself registered upon the said amount where the said two persons, namely Baliyar Chandrappa and Banappa were middlemen, through them the accused was amassed wealth more than the known source of income and the trial is still pending. The accused is required to rebut the presumption at this stage along with the application of the respondent which would affect the case of prosecution. Hence, prayed for allowing the petition and to dismiss the application.
6. Per contra, the learned counsel for respondent No.2 contended that on the information given by the accused – K. Borappa, the Lokayuktha Police issued notice to the applicant. He has produced the documents and income tax returns and the said amount was brought by respondent No.2 for registration of the property, but he was unable to register the property and therefore, he has handed over the said money to the accused who is a good friend. The applicant produced all the documents before the trial Court. Therefore, the trial Court rightly allowed the application. There is no illegality committed by the Court while releasing the amount to the interim custody of the applicant. Hence, prayed for dismissing the petition.
7. Upon hearing the arguments of both the learned counsel, the applicant–respondent No.2 has produced the Bank statements, Income Tax returns for the year 2012-2013, and the Bank account extract of the applicant as on 31.03.2011 shows that he had balance of Rs.15 lakhs in his account. The Income Tax returns for the year 2012-2013 stands in the name of N. Chetan Kumar for having paid advance tax of Rs.1,18,948/-. As on 26.05.2012, there is no proper account to show the huge amount of Rs.1,45,00,000/- which were either given to the accused or other two persons. The documents and ledger accounts, though it depicts the payments of Rs.1,45,00,000/- shows as ledger account of the accused-
K. Borappa, but these documents could be possible to create subsequent to the registration of the case cannot be ruled out. Of course, the entries in the ledger books maintained by the applicant who is the custodian and chances of writing at any time subsequent to the registration of the case is also not ruled out. The accused being the public servant was not supposed to accept any amount from anybody other than the legal remuneration. The presumption under Section 20 of the Prevention of Corruption Act is available to the prosecution required to be rebutted by the accused. Though some documents and sale deeds are produced by the applicant, the same is required to be appreciated by the trial Court only during the full fledged trial.
8. At this stage, the trial Court releasing the amount in favour of the applicant definitely would cause damage to the prosecution case. It is nothing but accepting the defence prior to the trial. The trial Court has relied upon the judgment of the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2003) SCC (Crl.) 1943) where the guidelines were issued by Hon’ble Apex Court while dealing with the applications under Section 451 and 457 of Cr.P.C. The case on hand, where the accused involved in the Corruption case that he has amassed assets more than 500% against the known sources of the income and therefore, the prosecution required to prove the case after adducing the necessary evidence before the trial Court. Whatever the defence available to the accused can be agitated before the trial Court. Releasing the amount to the interim custody of the applicant without considering the gravity of the offence is erroneous. Therefore, the impugned order is liable to be set aside. Accordingly, I pass the following order:
i) The Criminal Revision Petition filed by the Lokayuktha is hereby allowed.
ii) The impugned order passed by the Prl. District and Sessions Judge and Special Judge (Lokayuktha), Davanagere in Spl.(LOK) Case No.12/2014 dated 18.06.2018 in favour of respondent No.2 under Section 457 of Cr.P.C is hereby set aside and the application filed by respondent No.2 is dismissed.
However, the petitioner-Lokayuktha is ordered to deposit the said amount in a Fixed Deposit in any of the Nationalized Bank, until the completion of trial after taking photographs and videographs of the currency notes and the trial Court to decide about the said amount and dispose the matter under Section 452 of Cr.P.C while passing the final judgment.
Sd/- JUDGE GBB