Karnataka High Court

T S Lokesh vs The State Of Karnataka on 6 December, 2021

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 06TH DAY OF DECEMBER, 2021

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.53013 OF 2018 (GM-RES)

BETWEEN:

T.S.LOKESH
S/O LATE T.H.SIDDARAMAYYA
AGED ABOUT 50 YEARS,
# K.R.R.D.A. PROJECT SUB-DIVISION,
MANGALURU
PRESENTLY RESIDING AT N0.31,
GARDEN MANNER APARTMENTS,
S.B.ROAD, LADY HILL,
MANGALURU - 583 230.                      ... PETITIONER

(BY SRI D.R.RAVISHANKAR, ADVOCATE (VIDEO CONFERENCING))

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY POLICE INSPECTOR,
       KARNATAKA LOKAYUKTA POLICE
       DAKSHINA KANNADA
       MANGALURU - 575 001.

2.     DEPUTY SUPERINTENDENT OF POLICE
       KARNATAKA LOKAYUKTA
       MANGALURU - 575 001.

3.     THE STATE OF KARNATAKA
       UNDER SECRETARY TO GOVERNMENT
       PUBLIC WORKS, PORT AND INLAND WATER
       TRANSPORT DEPARTMENT (SERVICE - C)
                               2



      VIDHANA SOUDHA,
      DR.B.R.AMBEDKAR VEEDHI,
      BENGALURU - 560 001.
                                           ... RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., AGA FOR R3 (PHYSICAL
    HEARING);
    SRI VENKATESH S.ARABATTI, ADVOCATE FOR R1 AND R2
   (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH
ANNEXURE-E, CHARGE SHEET NO.03/2012, DATED 29.05.2012,
BEFORE THE PRL. DISTRICT AND SESSIONS, D.K. MANGALORE;
QUASH ANNEXURES-K, ORDER DATED 11.07.2018, PASSED BY III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALORE
IN SPECIAL CASE NO.27/2012; AND ETC.,


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.11.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-


                             ORDER

The petitioner in this petition calls in question charge

sheet in No.3/2012 dated 29-05-2012 and the order passed by

the Special Court in Special case No.27 of 2012 dated

11-07-2018 declining to discharge the petitioner in the aforesaid

proceedings for offences punishable under Section 13(1)(e) read

with Section 13(2) of the Prevention of Corruption Act, 1988 ('the

Act' for short).

2. Heard Sri D.R. Ravishankar, learned counsel for the

petitioner, Sri Venkatesh S. Arabatti, learned counsel for

respondents 1 and 2 and Smt.B.G.Namitha Mahesh, learned

Additional Government Advocate for respondent No.3.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioner at the relevant point in time was working as

an Executive Engineer in Pradan Mantri Grama Swaraj Yojana

(PMGSY) on deputation at Mangalore Division. Certain

differences arose between the contractor of the works who had

undertaken to execute construction of roads with regard to

supply of workmen and labour as a result of which, work had to

be stopped and continuation of work became a huge problem.

The further narration with regard to the allegations of the

complainant in certain proceedings instituted is not germane to

be noticed.

4. The complainant by name Hameed who was a civil

contractor registers a complaint against the petitioner pursuant

to which a FIR is registered in Crime No.9 of 2009 alleging

offences punishable under Sections 7, (13)(1)(d) read with

Section 13(2) of the Act. The said proceeding is not the subject

matter of the present proceeding. The aforesaid FIR was

registered on 08-09-2009. After about one year, the complaint

is registered by the Deputy Superintendent of Police, Karnataka

Lokayukta based upon a source report dated 28-08-2010 for the

check period from 20-12-1982 to 28-08-2010. This resulted in

registration of a separate FIR on 30-08-2010 for offences

punishable under Section 13(1)(e) read with Section 13 (2) of the

Act. The present writ petition concerns the proceedings in Crime

No.9 of 2010 for offences punishable under Section 13(1)(e) read

with 13(2) of the Act.

5. The learned counsel appearing for the petitioner would

contend that two complaints cannot be registered for the same

offence and two proceedings cannot thereto go on. At the time

when the first FIR was registered all the materials were at the

hands of the respondents and the same could have been alleged

in the said complaint itself. The petitioner cannot be subjected

to multiple proceedings as it would violate Article 21 of the

Constitution of India and would submit that the proceedings for

offences punishable under Section 13(1)(e) of the Act should be

obliterated.

6. On the other hand, the learned counsel appearing for

respondent Nos.1 and 2/Lokayukta would contend that the

earlier complaint was by a complainant for offences that he

alleged in the said complaint. It was registered on 8-09-2009 in

Crime No.9/2009. After about a year when investigation was

conducted and allegations of corruption was noticed for the

aforesaid check period, a separate FIR came to be registered on

the basis of a source report in Crime No.9 of 2010. Both the

allegations being separate and distinct they are not hit by the

doctrine of sameness as is contended.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel for the

parties and perused the material on record.

8. The material facts beyond what are noticed hereinabove

are not necessary. The issue in the lis is, whether the second

complaint was maintainable for the allegations leveled in the

said complaint. Since consideration in the case at hand is with

regard to offences falling under Sections 13(1)(d) read with

Section 13(2) and Section 13(1)(e) read with Section 13(2) of the

Act, the same are extracted herein for the purpose of quick

reference:

"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be

likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 3 [four years] but which may extend to ten years and shall also be liable to fine."

(Emphasis supplied)

The complainant Mr. Hameed registers a complaint against the

petitioner in Crime No.9 of 2009 for offences punishable under

Section 13(1)(d) read with Section 13(2) of the Act. This is a

separate proceeding and the charge sheet is filed in the said case

in Special Case No.14 of 2012. Number of accused in the said

case is totally three which includes the petitioner. The allegation

in the said complaint by the contractor is that he was executing

six road works in terms of the project under the supervision of

accused 1 and 3. Accused No.1, the petitioner was in the cadre

of Assistant Executive Engineer. It is alleged that the petitioner,

second accused Junior Engineer, and the 3rd accused Executive

Engineer at the time of commencing the work opened a joint

account in Syndicate Bank and obtained a cheque book. The

further allegation is that the accused used to take signatures of

the complainant on blank cheques and get the bills sanctioned

to themselves and were withdrawing the said amount. One such

instance of withdrawal of Rs.1,75,000/- is also indicated in the

complaint. Totally, it is alleged that Rs.113.11 lakhs was

siphoned off by the accused. This is the subject matter of Special

case No.27 of 2012.

9. The facts in Special Case No.27 of 2012 which concerns

the present writ petition are that the petitioner while working at

Mangalore in the project Sub-Division an investigation was

conducted and based upon the source information he was found

to have amassed wealth disproportionate to his known sources

of income. The check period indicated was 20.12.1982 to

28-08-2010 and a FIR is registered for offences punishable

under Section 13(1)(e) read with Section 13(2) of the Act.

Therefore, the subject matter of both the complaints is different.

The allegations in both the complaints are different and the

accused in the subsequent proceeding under Section 13(1)(e) is

the petitioner alone. The witnesses that are to be examined in

both the cases are different and the period of registration of FIR

in both these cases is one year apart. Therefore, the contention

of the learned counsel appearing for the petitioner that it is hit

by doctrine of sameness deserves to be rejected.

10. For a quick understanding of the case of the petitioner

and that of the respondents, the contents and dates of

registration of FIRs are tabulated as under:

Sl. Description Offence under Offence under No S.7, S.13(1)(e) r/w 13(1)(d) r/w 13(2) 13(2)

2 Date of FIR 08-09-2009 30-08-2010 3 Basis of Complaint Source Report Registering dated 28-08-2010 FIR 4 Complainant/ Sri Hameed Sri S.M.Vernekar, Informant (Civil Contractor) Dy.SP,KLA 5 Date of 08-09-2009 Not applicable incident 6 Check period Not applicable 20-12-1982 to 28.08.2010 7 Case Spl.Case Spl.Case registered No.14/2012 No.27/2012

witnesses

accused 10 Name of 1.T.S.Lokesh Accused (AEE) T.S. Lokesh (AE)

2. Santosh

Kumar (JE)

3.Narasimharaju (EE) 11 Brief Facts See 11.1 below See 11.2 below

The allegation against the petitioner is disproportionate assets to

the known source of income to the tune of 91.534 percent.

Therefore, on the specious technical plea of the petitioner that

the proceedings are hit by sameness he cannot be left off the

hook of facing criminal trial. It is for the petitioner to come out

clean in the trial.

11. The other submission of the learned counsel for the

petitioner is that the order of the Special Court in answering an

application for discharge is bereft of reasons is also

unacceptable, as a perusal at the order would clearly indicate

that the learned Sessions Judge has applied his mind to the

issue whether the petitioner was entitled for discharge and has

answered it in the negative. I do not find any error in the said

order as at the time when the discharge application is heard it is