Surendrababu S/O Basappa And Ors vs The State And Anr
2021 Latest Caselaw 5431 Kant

                            1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 4TH DAY OF DECEMBER 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

         CRIMINAL PETITION No.200347/2021

BETWEEN:

1.     SURENDRABABU S/O BASAPPA
       AGE: 59 YEARS, OCC: EXECUTIVE ENGINEER
       R/O KBJNL, NLBC DIVISION
       RODALABANDA VILLAGE, TQ.LINGASUGUR
       DIST.RAICHUR-584127

2.     ANILKUMAR NAIK S/O NILLAPPA NAIK
       AGE: 30 YEARS, OCC: ASSISTANT ENGINEER
       R/O AEE KBJNL, NLBC SUB DIVISION 18
       RODALABANDA VILLAGE, TQ.LINGASUGUR
       DIST.RAICHUR-584127

3.     GANGADHAR S/O MALLAPPA
       AGE: 37 YEARS, OCC: ASSISTANT ENGINEER
       R/O KBJNL, NLBC DIVISION
       RODALABANDA VILLAGE
       TQ.LINGASUGUR
       DIST.RAICHUR-584127
                                         ... PETITIONERS

(BY SRI AVINASH A. UPLAONKAR, ADVOCATE)

AND:

1.     THE STATE THROUGH
       LINGASUGUR POLICE STATION
       DIST.KALABURAGI,
       NOW REPRESENTED BY ADDL. SPP,
                                2




      HIGH COURT OF KARNATAKA
      AT KALABURAGI BENCH-585107

2.    RAGHAVENDRA NAYAK
      S/O VENKATESHAPPA NAYAK
      AGE: 36 YEARS, OCC: AGRICULTURE
      R/O BASAVESHWARA NAGAR
      NEAR TAHSIL OFFICE
      MASKI, TQ.MASKI
      DIST.RAICHUR-584124
                                         ... RESPONDENTS

(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
 SRI MAHANTESH PATIL, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE FIR
IN CRIME NO.34/2021 (P.C.NO.41/2020) (ANNEXURE-A) OF
LINGASUGUR    POLICE   STATION,    DIST.RAICHUR,   PENDING
BEFORE THE PRINCIPAL CIVIL JUDGE AND J.M.F.C. COURT AT
LINGASUGUR, FOR OFFENCE U/SEC. 464, 468, 409, 420 OF
IPC, AGAINST THE PETITIONERS.


      THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:


                        ORDER

Heard the learned counsel for the petitioners and the

learned High Court Government Pleader and the learned

counsel for respondent No.2.

2. The factual matrix of the case is that the

respondent No.2 has filed a private complaint in

P.C.No.41/2020 before the Principal Civil Judge and JMFC

Court at Lingasugur making allegation against these

petitioners who are the engineers working in the KBJNL in

the capacity of Executive Engineer, Assistant Engineer and

Assistant Technical Evaluator and allegation made against

these petitioners is that, accused No.4 Mr.Ameensab had

indulged in fraud with malafide intention in order to

deceive the Government, created false and forged

documents i.e., work done certificates alleged to have

been issued by the Executive Engineer, PWD and IWTD,

Division Raichur and Executive Engineer, PRE Division

Raichur. The said accused No.4 Ameensab by submitting

such false and forged documents with the knowledge that,

the said documents are false documents and secured the

work order from the accused No.1. It is stated in the

complaint that the accused Nos.1 and 2 have colluded with

accused No.4 Ameensab with an intention to cheat the

Government. Even though they are having knowledge that

the said work done certificates of accused No.4 are false

and forged document which are not issued by the said

authorities i.e., witness No.1 and 2 and illegally given the

technical approval to the application of said Ameensab.

Hence, the trial Court invoked sections 120-B, 409, 419,

420, 467, 468 & 471 read with section 34 of IPC. The

learned Magistrate proceeded to pass the detailed order

considering that it is a fit case to refer the matter to the

concerned police for investigation as per section 156(3) of

Cr.P.C. Accordingly after considering the complaint

averments and taking note of the fact that these

petitioners have technically approved the tender without

verifying the alleged forged documents and also in detail

passed the order regarding sanction under section 197 of

Cr.P.C., and came to the conclusion that the act done by

these petitioners does not come within the act purported

to be done in discharging of public duties and in

paragraph-32, in detail discussed and came to the

conclusion that except the forged documents it does not

come within the purview of in discharge of public duty and

hence, came to the conclusion that the petitioners will not

get any protection under section 197 of Cr.P.C., and

passed the detailed order and referred the matter under

section 156 (3) of Cr.P.C. The said order runs 24 pages for

application of his judicious mind. Being aggrieved by the

said order, the present petition is filed before this Court.

3. The learned counsel for the petitioners would

submit that learned Magistrate has committed an error in

entertaining the private complaint without sanction.

Learned counsel would contend that as per section 12 of

the Karnataka Transparency in Public Procurements Act,

1999 act was done. He contended that every tender

applied for will be scrutinized to the extent of technical bid

and financial bid. Thus the fabricated document produced

by the contractor cannot be noticed/verified in the e-

procurement bidding. Even as per clause 19 of the

Government of Karnataka, procurement of works-use of

standard tender documents (KTPP Tenders) also there is

no scope of any physical verification of any of the

documents uploaded by the bidding person and this aspect

having considered by the trial Court while referring the

matter under section 156 (3) of Cr.P.C. The counsel also in

support of his argument relied upon the judgment of the

Hon'ble Apex Court in the case of D. DEVARAJA VS.

OWAIS SABEER HUSSAIN IN CRIMINAL APPEAL NO.458

OF 2020 dated 18.06.2020 and brought to the notice of

this Court paragraph No.77 wherein the Hon'ble Apex

Court held that while invoking section 482 of Cr.P.C.,

petition is maintainable to quash the proceedings which

are ex-facie bad for want of sanction, frivolous or in abuse

of process of the Court. If on the face of the complaint, the

act alleged appears to have a reasonable relationship with

official duty where the criminal proceedings is apparently

prompted by malafides and instituted with ulterior motive,

power under section 482 of Cr.P.C., would have to be

exercised to quash the proceedings to prevent abuse of

process of Court.

4. The learned counsel appearing for the

petitioners would vehemently contend that the act done by

these petitioners are in discharge of work appears to have

a reasonable relationship that an official duty and hence

protection under section 197 of Cr.P.C., comes into play.

The counsel also referred the order passed by this Court in

Criminal Petition No.7127/2020 and connected matters

Criminal Petition Nos.5793/2020, 8039/2020 dated

05.04.2021, wherein this Court held that with regard to

negligence is concerned on the part of these petitioners

knowing fully well that they have not taken any action and

already a case has been registered in crime No.111/2019

and the investigation is going on and hence came to the

conclusion that Court can invoke section 482 of Cr.P.C. The

learned counsel also brought to the notice of this Court,

the order passed by this Court in criminal petition

No.2098/2011 dated 19.03.2019 wherein also the Court

exercising the power under section 482 of Cr.P.C., with

regard to sanction is concerned and came to the conclusion

that mandatory compliance of not obtaining the sanction

amounts to an abuse of process when the officials are

discharging their public duties. The counsel relied upon

the order passed in Criminal petition No.4881/2020 c/w

criminal petition No.4968/2020 dated 12.02.2021 wherein

also this Court while exercising power under section 482 of

Cr.P.C., that petitioner has discharged his duty and sent

the report to the Deputy Commissioner for

recommendation in connection with discharging his public

duty and under such circumstance, the Court can exercise

power under section 482 of Cr.P.C.

5. Per contra, learned counsel for the respondent

No.2 would submit that the orders relied upon by the

petitioners' counsel are not applicable to the facts of the

case on hand. In the present case, the contractor has

created the forged documents and by relying upon the

forged documents these petitioners knowing fully well that

those documents are forged documents and in collusion

with the said contractor accepted the tender without

verifying genuineness of the documents issued by

witnesses-1 and 2. The learned counsel would also submit

that specific averments are made in the complaint that the

contractor has created the forged documents and relied

upon the same and these petitioners knowing fully well

that those documents are forged documents, in collusion

with the said contractor, accepted the tender without

verifying the genuineness of the documents issued by the

witnesses PW1 and PW2.

6. The counsel also submits that the specific

averments are made in the complaint that all of them

colluded with each other relying upon the forged

documents and based on the said documents, technical bid

was accepted. The counsel in support of his arguments,

relied upon the judgment reported in 2021(4) KLJ 254 in

the case of S.SHIVAKUMAR AND OTHERS VS. STATE

OF KARNATAKA AND OTHERS wherein this Court came

to the conclusion that sanction is not necessary when an

illegal detention was made and the same is not comes

within the purview of protection as envisaged under

Section 197 of Cr.P.C.

7. The counsel referring to this judgment also

contended that accepting the forged document, the tender

not comes within the purview of discharging of public duty

and the learned Magistrate while invoking Section 156(3)

of Cr.P.C in detail discussed and passed the detailed order

and rightly came to the conclusion that, that is not the part

of public duty accepting the forged documents

knowingfully well that those documents are forged

documents and did not verify the genuineness of those

documents and accepted the tender. The counsel also

submits that the complainant on account of the act of

these petitioners, suffered and he is an aggrieved person.

When the forged documents are accepted and tender was

accepted by the accused No.4, it cannot be contend that

the complainant has no locus standi to file a complaint.

8. The counsel appearing for the State would

submit that it requires an investigation and investigation

cannot be curbed when the serious offence of forgery, the

creation of the documents and also using the forged

documents as genuine documents and sanctioned the

tender.

9. Having heard the respective counsel appearing

for the parties and on perusal of the factual aspects of the

case, a specific allegation is made in the complaint in

paragraph 6 that based on the forged documents of

Ameensab, these petitioners being the Executive Engineer,

Assistant Engineer and Assistant Technical Evaluator

knowing fully well that the said documents are forged one

accepted the same without verification and those created

documents are not issued by witness Nos.1 and 2. No

doubt, the protection is given to the public servant under

Section 197 of Cr.P.C. If any act purporting to be done in

discharging of public duty and it is also settled law that,

that act is not pertains to any discharge of public duty,

protection cannot be given. The question before this Court

that before referring the matter under Section 156(3) of

Cr.P.C., Court has to look into the fact whether the learned

Magistrate before invoking Section 156(3) of Cr.P.C, has

applied its judicious mind or not. But in the case on hand,

the learned Magistrate passed the order in detail vide

order dated 04.02.2021 extracting the allegations made in

the complaint and so also taken note of the judgment of

the Apex Court and thereafter proceeded to consider

whether sanction is necessary or not in a case where

offence of forgery and the forged documents have been

relied upon and these petitioners who have been the

competent authorities to examine that documents whether

they are genuine or not and the very said document was

accepted while accepting the tender of said Ammensab

who created the documents.

10. When the said specific allegations are made

that these petitioners have not verified the documents and

accepted the tender, the very contention of the petitioners

also causes loss to the Government and apart from that

the complainant's tender process has not been considered.

Under the circumstances, the very contention of the

petitioners counsel that the complainant is not having any

locus standi and the other contention that using the forged

document as a genuine document while accepting the

tender, the act done by these petitioners come within the

act purported to be done in discharging of public duties

cannot be accepted. Hence, the learned Magistrate rightly

came to the conclusion that the protection under Section

197 of Cr.P.C does not arise. Hence, I do not find any

error committed by the learned Magistrate by referring the

matter under Section 156(3) of Cr.P.C. No doubt, the

principles laid down in the judgment referred supra in

Devaraja's case and also the other judgments which have

been relied upon by the petitioners counsel, it is settled

law that if complaint is frivolous complaint requires

sanction. Under such circumstances, it requires sanction

or otherwise it amounts to an abuse of process and that

too whether the complaint is filed with malafide intention

and I do not find such circumstances in the present case

on hand of any such malafide or abuse of process and it

requires probe regarding forgery of document and using of

the said forged document for getting the tender and the

same has not been considered by these petitioners before

accepting the tender. The detail order passed by the

learned Magistrate is based on the factual aspects and also

contents of the complaint and the allegation made against

these petitioners and learned Magistrate applied his

judicious mind while passing the order. Hence, I do not

find any merit in the petition to exercise the powers under

Section 482 of Cr.P.C.

11. In view of the discussions made above, I pass

the following:

ORDER

The petition is rejected.

Sd/-

JUDGE

VNR/SAN