M Chandrakanth vs B S Sherigar
2021 Latest Caselaw 6855 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF DECEMBER, 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL REVISION PETITION No.390/2014

BETWEENU

1.    M. CHANDRAKANTH
      S/O MANJAPPA K
      AGED 47 YEARS
      POSTED AS ASSISTANT REGISTRAR
      SAHYADRI SCIENCE COLLEGE
      B.H. ROAD, SHIVAMOGGA
      R/O GRAM PANCHAYAT ROAD
      BARANDUR, BHADRAVATHI TALUK
      SHIVAMOGGA DISTRICT.

2.    BASAVARAJ BALIGER
      S/O LATE SOMAPPA
      AGED 43 YEARS
      POSTED AS SENIOR ASSISTANT
      SAHYADRI SCIENCE COLLEGE
      B.H. ROAD, SHIVAMOGGA
      R/O SANDAL COLONY
      VIDYANAGAR
      SHIVAMOGGA-577201
                                          ...PETITIONERS

(BY SRI SUYOG HERELE, ADVOCATE)

AND

B.S. SHERIGAR
S/O LATE BEERANNA SHERIGAR
AGED 68 YEARS
FORMER VICE CHANCELLOR
OF KUVEMPU UNIVERSITY
                              2


R/O "AHANA", OPPOSITE GANDHI PARK
KOLAMBE, SHANTHINAGARA
UDUPI-576 101
                                             ...RESPONDENT

(BY SRI HAREESH BHANDARY T., ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO CALL
FOR THE RECORDS PERTAINING TO ORDER DATED 9.5.2014
DISMISSING THE UNNUMBERED PRIVATE COMPLAINT DATED
2.4.2014 (SRI M. CHANDRAKANTH AND ANOTHER VS. B.S.
SHERIGAR) ON THE FILE OF THE COURT OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AND THE SPECIAL COURT FOR
LOKAYUKTHA AT SHIVAMOGGA AND REVISE THE SAME BY
ALLOWING IT AND RESULTANTLY DIRECTING THE COURT
BELOW TO REGISTER THE COMPLAINT AND PROCEED
ACCORDING TO THE LAW.

      THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

The unsuccessful complainants in an un-numbered

private complaint are the revision petitioners before this

Court challenging the order dated 09.05.2014 whereby,

the learned Principal District and Sessions Judge and the

Special Court for Lokayuktha at Shivamogga District,

dismissed the private complaint and refused to refer the

matter to Lokayuktha Police for investigation.

2. The brief facts of the case are as under;

The complainant No.1 said to have joined the

Kuvempu University as Stenographer in the year 1992; he

was promoted from time-to-time and occupied the post of

Assistant Registrar as on the date of the complaint.

Complainant No.2 joined the said University as Junior

Assistant in the year 1994 and admittedly, he was

promoted and was working as Senior Assistant as on the

date of the complaint. The accused is a former Vice-

Chancellor of the Kuvempu University and had worked as

Vice Chancellor during May 2006 to May 2010. According

to the complainants, the Vice Chancellor had indulged in

abuse of his official position, failed to follow the rules and

regulations resulting in irregularities and misappropriated

University funds and violated the rules and procedures in

the administration of the University and acted according to

his whims and fancies and thereby the public money was

siphoned and also resulted in mis-management of the

University. Therefore, sought action against the accused.

3. Learned Special Judge before referring the matter to

Lokayuktha Police under Section 156(3) Cr.P.C., took note

of the contents of the complaint and also relied upon the

judgment of the Hon'ble Apex Court in the case of Maksud

Saiyed vs. State of Gujarath and others reported in

(2008) 5 SCC 668 and dismissed the complaint. Being

aggrieved by the same, the complainants are before this

Court in this Revision Petition raising the following

grounds;

• That the impugned order below is against the principles of law laid down on the subject matter. That the Court below while dismissing the complaint has erred in not considering the circumstances and position of law properly.

• The Court below failed to properly appreciate the fact that the complainants had produce relevant documents in support of their allegations, which were not at all considered. The court could have very well clarified the issues from the complainants if it had any doubts in its mind since it was at the institution stage.

• The court below failed to appreciate the documents produced by the complainants in its proper and true

perspective and instead of referring the matter for investigation under section 156(3) of Cr.P.C. has blindly dismissed the complaint.

• The court below wrongly applied the case of 2008(5) S.C.C. 668 viz. Maksud Saiyed v State of Gujarath and others. It is a case connected with the provisions of I.P.C. and not under the Prevention of Corruption Act.

• That the impugned order is otherwise opposed to law and probabilities of the case.

• The petitioner craves leave of this Hon'ble Court to urge additional grounds at the time of final arguments.

• The petitioner has not filed any other petition on the same cause of action, previously before this Hon'ble Court nor any Application or Petition is pending before any Authority, Forum or Court. • The petition is not delayed.

4. Re-iterating the above grounds, learned counsel for

the revision petitioners relied upon the judgment of the

Calcutta High Court in CRR/92/2021, dated 01.10.2021

and sought for allowing the revision petition. He further

contended that the learned Special Judge ought not to

have gone into the merits of the allegations made in the

complaint but to have only considered the prima facie

materials and ought to have referred the matter to the

Lokayuktha Police for further action and failing to do so

has resulted in miscarriage of justice.

5. Per contra, Sri Hareesh Bhandary T., learned counsel

for the respondent supported the impugned judgment by

contending that the learned Special Judge has rightly

followed the principles enunciated in the case of Maksud

Saiyed stated supra and the Court cannot straightaway

refer the matter to the Police under Section 156(3) of

Cr.P.C. just for asking and should bestow its attention to

the allegations made in the complaint and if there is a

prima facie case made out, then the matter has to be

referred to the Police. Otherwise, it would result in

miscarriage of justice and therefore, the impugned order is

justified.

6. Having heard the arguments, this Court perused the

material on record. This Court wanted the entire Trial

Court records submitted before it to appreciate the case of

the parties. However, by letter dated 18.10.2021, the

learned Principal District and Sessions Judge, Shivamogga

has written to this Court that in the absence of any

intimation to the Trial Court about the pendency of the

revision petition, the records of the case has been

destroyed. Therefore, an opportunity was granted to the

revision petitioner to file the office copies of the

documents, if any, with him, so as to take the same on

record and proceed with the case to appreciate the case of

the revision petitioners.

7. Learned counsel for the revision petitioners

submitted that apart from the revision papers, the revision

petitioners also do not have any other record. Therefore,

this Court perused the material available on record and

heard the learned counsel appearing for the parties.

8. Admittedly, the revision petitioners are the

employees of Kuvempu University. The accused has

retired in the year 2010 and this complaint came to be

filed in the year 2014. What prevented the revision

petitioners, who are employees of the University, to make

a complaint to take action against the accused when they

were in the service remains unanswered. Having taken

promotions from the Vice Chancellor at different levels and

filing a complaint four years after the retirement of the

Vice Chancellor itself raises sufficient doubt about the bona

fides of the revision petitioners. Further, there is a

Syndicate for each and every University and if at all any

irregularity as is pointed out by the revision petitioners is

found, the same should have been brought to the notice of

the Syndicate of the Shivamogga University or the Senate

Members. Having failed to do so and filing the complaint

four years after the retirement of the accused exposes

hallowness in the bona fide of the complaint averments.

However, the learned Special Judge, bestowing utmost

attention to the allegations made in the complaint, by a

detailed reasoned order and following the dictum of the

Hon'ble Apex Court in the case of Maksud Saiyed stated

supra, has rightly refused to refer the matter to the

Lokayuktha Police by the impugned order. In view of the

authoritative pronouncement of the Hon'ble Apex Court in

the case of Maksud Saiyed stated supra, the judgment

relied upon by learned counsel for the revision petitioners

rendered by the Calcutta High Court in CRR/92/2021,

dated 01.10.2021 cannot be relied upon. Accordingly,

this Court is of the considered opinion that none of the

grounds urged in the revision petition holds merit. Hence,

the following;

Order

The Criminal revision petition stands dismissed.

Sd/-

JUDGE mv