The State Of Karnataka, vs Basavaraj Nagappa Bawalatti,
2021 Latest Caselaw 1615 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 25TH DAY OF FEBRUARY, 2021
                         BEFORE
          THE HON'BLE MR.JUSTICE K. NATARAJAN
       CRIMINAL REVISION PETITION NO.100023/2015

BETWEEN:

THE STATE OF KARNATAKA
BELGAUM LOKAYUKTA POLICE
STATION, BELGAUM.
                                              ...PETITIONER
(BY SRI. SANTOSH B. MALAGOUDAR, SPECIAL PP)

AND:

BASAVARAJ NAGAPPA BAWALATTI
AGE: 59 YEARS,
OCC: DEPUTY SUPERINTENDENT OF POLICE,
R/O. SIRUR, TAL. AND DIST. BAGALKOT
                                              ...RESPONDENT
(BY SMT. SHOBHA PATIL, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
R/W SEC. 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED
ORDER ON DISCHARGE OF THE ACCUSED/RESPONDENT DATED
24.07.2014 IN SPL. CASE NO.48/2013 PASSED BY THE IV-ADDL.
DIST. & SESSIONS & SPL. JUDGE (PCA), BELGAUM, BY ALLOWING
THIS REVISION PETITION.

     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 18.02.2021, COMING ON FOR PRONOUNCEMENT OF
ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                   2




                                ORDER

This petition is filed by the State represented by the

Lokayukta Police u/s. 397 Cr.P.C. for setting aside the order dated

24.07.2014 passed by the IV Addl. District and sessions judge and

Special Judge (PCA) Belagavi (hereinafter referred to as 'the trial

Court') in Special Case No.48/2013, for having discharged the

respondent accused under Section 227 of Cr.P.C. for the offence

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

Prevention of Corruption Act, 1988 (hereinafter referred to as 'the

P.C. Act', for brevity).

2. Heard the arguments of learned Special Public

Prosecutor for the Lokayukta Sri. Santosh Malagoudar and learned

counsel Smt. Shobha Patil, appearing for the respondent/accused.

The ranks of the parties before the trial Court is retained for the

purpose of convenience.

3. The case of the prosecution is that, Belagavi Lokayukta

Police have registered a case against the accused for the offence

punishable under Section 13(1)(e) R/w. Section 13(2) of the P.C.

Act on the basis of the source report of the one Sri. R. K. Patil dated

03.11.2008. The Superintendent of Police, Karnataka Lokayuka

Belagavi by his order No.SP/KLA/Belagavi-3/2008 authorised Sri.R.

K Patil, Police Inspector, to register the case and investigate the

case against the accused. According to the FIR, the accused is

found to be in possession of assets more than 528.8% of his known

sources of income. The Investigating Officer has collected the oral

and documentary evidence and filed charge sheet against the

accused that the accused is found to be in possession of

disproportionate assets of 100.86%.

4. At the time of raid, the accused was serving as the

Deputy Superintendent of Police at Khade Bazar Sub-Division,

Belagavi and his check period is 07.09.1981 to 27.11.2008. The

accused held the property to the extent of `52,07,812/-, the

expenditure incurred to the extent of `17,73,747/- and the total

income comes to `34,75,691/-. After filing of the charge sheet, a

case was registered against the accused in the special Court in

Special Case No.48/2013 and when the matter was posted for

hearing before charge, the accused filed an application under

Section 227 of Cr.P.C. seeking discharge from the alleged offence

and the trial Court allowed his application and discharged the

accused for the alleged offence vide impugned order dated

24.07.2014.

5. Assailing the discharge of accused, the Lokayukta filed

this revision petition contending that the discharge is contrary to

the law and evidence on record. It is one sided and arbitrary which

is liable to be set aside. It is further contended that the accused

joined the police service as PSI on 07.09.1981 and on the date of

raid on 26.11.2008, he was found having assets worth `52,07,812/-

and is also having property in the name of his wife. He has

incurred expenditure of about 17,73,747/- and is known sources of

income is `35,05,867=04. The amount spent over the acquisition

of the properties was `69,81,559/-. The disproportionate asset was

100.86% in excess of the total income to his known sources of

income. Without considering the evidence on record, the trial court

discharged the accused, which is not correct. It is further

contended that the accused was found having 3 acres 31 guntas of

land in survey No.55/1 + 2B at Jiragal village acquired by the

accused in his wife's name for `1,80,000/- on 26.02.2002, but the

trial Court considered the same as `1,50,000/- out of compensation

amount is not correct. The wife of the accused was not an earning

member. The amount of `10,35,000/- agreed to be received by the

accused as sale consideration of the said land is the capital income.

The advance amount of `50,000/- is received under the agreement

dated 20.10.2005. Considering that while computing the value held

by the accused had no concern for this land, he would have not

signed the concerned deed as referred at page 17 of the impugned

order. The trial Judge ought not to have decided about the

probative value of the documents without giving opportunity to the

prosecution to challenge the said documents. The learned Judge

erred in holding that the wife of the accused has invested FD to the

tune of `8,03,645/- out of the money received by sale of land at

Jirgal village. The trial Court also erred in holding that the

acquisition of 1 acre land in survey No.271/B Mutage village in the

name of wife of the accused was her separate acquisition made by

investing the amount received by her by the sale proceeds of her

own land and without recording the evidence that finding cannot be

given. The trial Court also held 12 guntas of land at Navilur

acquired in the name of his wife is of his wife's separate property.

It is further contended that the trial court erred in excluding

the value of farm house in survey No.972/2/A of Sirur village the

partition deed executed on 25.03.2004 whereas the accused joined

service in 1981. There is no evidence at the time of construction of

farm house and expenditure. The accused had declared his

statement of assets and liabilities for the year 2010 at `9,00,000/-.

The trial Court ought not to have considered the unregistered deed

dated 05.04.2004 without recording the evidence and not ought to

have excluded `9,00,000/- in computing the assets.

It is further contended that the learned trial Judge without

recording the evidence ought not to have excluded `7,00,000/-

received under the agreement concerning survey No.86 of village

Bhoragi. The said document was found in the house of the accused

during the raid. The trial Court failed to appreciate the sanction

order issued under Section 19 of the P.C.Act. Hence prayed for

allowing the petition and setting aside the order of discharge.

The learned counsel for the Lokayukta has contended the trial

Court relied upon the judgments of the Hon'ble Supreme Court in

case of State of Haryana and Others Vs. Ch.Bhajan Lal and

others reported in AIR 1992 SC 604 and P. A. Vijayan Vs. State

of Karnataka reported in AIR Kant.HCR.2002-0-123. The ratio

laid down in those cases are altogether different from the present

case on hand. The Hon'ble Supreme Court has held in various

judgments that it is not necessary to evaluate and appreciate each

and every material while deciding discharge of the accused. It is

not necessary whether materials are sufficient to convict the

accused or acquit the accused and it is only to verify whether prima

facie materials are available on record to frame the charge and to

proceed with the trial against the accused. Therefore, he prayed

for allowing the petition.

In support of his argument, he has relied upon the following

judgments of the Hon'ble supreme court, reported in:

1. (2001) 1 SCC 369 (State by CBI Vs. S. Bangarappa)

2. AIR (2017) SC 796 (State of Rajasthan Vs. Fatehkaran Mehdu)

3. (2019) 7 SCC 515 (State by Karnataka Lokayukta, Police Station, Bengaluru Vs. M. R. Hiremath)

6. Per contra, the learned counsel appearing for the

respondent Smt. Shobha Patil has supported the order passed by

the trial court for having discharged the accused and contended

that the accused has declared his assets and liabilities to his

appointing authority and official superiors to him. The same was

not questioned by the appointing authority and the same has been

accepted. The rank of Dy.S.P. level officer is required to conduct

the investigation as per Section 17 of the P.C. Act, but the Police

Inspector conducted the investigation and due to departmental

enmity against the accused, they searched for material to file

complaint and as they did not have any material, they have taken

4½ years for filing the charge sheet. There is no reason available

for the Lokayukta to file the charge sheet. They searched for

reason for filing the false charge sheet against the accused. She

would further contend that the Lokayukta registered the case

against the accused for having disproportionate income of 528.8%

more than his known sources of income, but after taking four years,

they filed charge sheet by changing their version that only he is

having only 100.86% assets more than the known sources of

income, which is not correct. The calculation made by the I.O. is

totally wrong.

7. The learned counsel further contended that the I.O. has

included the property of his wife which was acquired by the

Authority under the Upper Krishna Project and she has received the

compensation and out of the compensation, she has reinvested the

said amount by purchasing 3 acres of land and the State has also

given exemption for payment of stamp duty for registration, but the

I.O. purposely included the same as assets of the accused which is

not correct. These documents are pertaining to the property of the

wife of the accused and without any reason the I.O. included the

same in the assets of the accused, which is not correct.

8. Learned counsel further contended that the accused

received his share of land under the family partition, where they

constructed a farm house and the same was declared by him in his

assets and liability statement in the year 2004 itself. The same

cannot be questioned by the Lokayukta as he has not acquired the

property by paying any sale proceeds. Therefore, the trial court

rightly excluded `9,00,000/- from his assets which was not acquired

by the accused by paying any sale consideration, but it is an

ancestral property received by him under the partition.

9. Learned counsel further contended that the wife of the

accused received `7,00,000/- as earnest money which cannot be

included in the assets of the accused. The accused has not signed

on the document. It is an unsigned document, which cannot be

considered as his asset. His income from agriculture has been

declared as `2,00,000/- per annum to his official superior as per the

KCSR Rules. But the I.O. collected some figure from an Assistant

Officer by showing the agriculture income as less than what the

accused declared without any material. Therefore, the trial Court

rightly considered his income as declared by him in his assets

liabilities statement.

10. Learned counsel further contended that the I.O. made

wrong calculation by taking into account the income of the family

property of the wife as property and income of the accused which is

not correct. All the material collected by the I.O. was available on

record but the I.O. made wrong calculation in order to file false

charge sheet. Hence she justified the order passed by the trial

Court.

11. Learned counsel further contended that, after the

discharge, the government sent an order to the Lokayukta

informing that it is not a fit case for filing an appeal. But in spite of

that order, the Lokayukta filed this revision without any authority

which is not sustainable. The learned counsel also relied upon the

judgments which was referred by the trial Court and also a

judgment passed by the coordinate Bench of this court in

Crl.PNo.11008/2013 dated 26.03.2019 and contended that, in a

similar case this court upheld the order of discharge by dismissing

the revision filed by the state and hence prayed for dismissing the

petition.

12. Upon hearing the arguments and perusal of the records,

the point that arise for my consideration is:

"Whether the trial Court is not justified in discharging the accused which calls for interference of this Court?

13. Perused the records. It is an undisputed fact that the

accused was appointed as PSI in the police department and joined

service on 07.09.1981 and at the time of the alleged ride i.e., on

26.11.2008, he was Dy.S.P. Khadebazaar Sub-division Belagavi. As

per the prosecution case, the accused is alleged to have amassed

wealth of 528.8% more than his known sources of income as per

the FIR and source report. But after the investigation, the I.O. filed

charge sheet stating that it is 100.86% more than the known

source of income. About 428% has been reduced by the I.O.

Admittedly the accused moved an application for discharge from the

charges and the trial Court after considering the contentions

accepted the arguments and passed the impugned order by

discharging the accused.

14. Before considering the arguments addressed by the

counsel for the parties, it is worth to mention the principles laid

down by the Hon'ble Apex Court in respect of framing of charge and

discharge while considering the applications under Sections 227 and

228 of Cr.P.C.

15. As per the contention of the learned Special counsel for

Lokayaktha, the judgments relied by the trial Court for discharging

the accused are not applicable to the case on hand and he has

relied upon the judgments of the Hon'ble Supreme Court to

consider the grounds for framing of charges. The learned special

counsel relied upon the judgment of the Hon'ble Apex Court

reported in (2001) 1 SCC 369 in the case of State by CBI Vs. S.

Bangarappa, wherein the Hon'ble Supreme Court held at para 21,

22 and 23 as follows:

"21. Time and again this Court has pointed out that at the stage of framing charge the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further. (vide State of M.P. vs. Dr. Krishna Chandra Saksena, [1996 (11) SCC 439].

22. We have no doubt that the materials which prosecution enumerated are sufficient to frame the charge for the offence under Section 313(2) read with Section 13(1)(e) of the Act.

23. No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account or explain such excess, [vide M. Krishna Reddy vs. State Dy. Superintendent of Police, 1992(4) SCC 45,

P. Nallammal and anr. vs. State, 1999(6) SCC 559]. It does not mean that the court could not frame charge until the public servant fails to explain the excess or surplus pointed out to be the wealth or assets of the public servant concerned.

     This    exercise        can    be        completed      only     in     the
     trial.[ K.Veeraswami      v.   Union       of    India (1991     (3)    SCC

655; State of Maharashtra vs. Iswar Piraji Kalpatri 1996(1) SCC 542. In the latter decision the court held thus:

"The opportunity which is to be afforded to the delinquent officer under Sec.5(1)(e) of the Act [corresponding to Sec.13(1)(e) of 1988 Act of] of satisfactorily explaining about his assets and resources is before the court when the trial commences, and not at an earlier stage."

16. In another case reported in AIR 2017 SC 796, in the

case of State of Rajasthan Vs. Pathekaran Melagu, the Hon'ble

Supreme Court has held in para 26 and 28 as under:

"26. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge

is not a stage, at which stage final test of guilt is to be applied.

Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.

28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397 Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are as follows:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not

exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."

"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C."

17. In another case reported in 2019 (7) SCC 515 in the

case of State by Lokayukta Police Vs. Hiremath, the Hon'ble

Apex Court held at para 25 as under:

"25. The High Court has in the present case erred on all the above counts. The High Court has erred in coming to the conclusion that in the absence of a certificate under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place

reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. This was consistent with the decision in Lalita Kumari. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held:

"29...At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction,

the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

18. On perusal of the principle laid down by the Hon'ble

Apex court in the above said judgments, it is clear that the trial

Court cannot go into the material evaluation and appreciation of

documents at the stage of framing of charges and the Court is

required to verify the records in order to frame the charges and

proceed with the trial, and if there is no sufficient materials placed

on record, the Court is required to discharge the accused under

Section 227 Cr.P.C.

19. Sections 239 and 227 Cr.P.C. are extracted hereunder

for the purpose of knowing the difference of discharge under those

Sections:

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the

accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

20. On comparison with both the above sections, in order to

discharge the accused under section 239 of Cr.P.C., the charges

against the accused shall be groundless, whereas under section 227

Cr.P.C., where it is defines, after hearing the submission of the

accused and prosecution in this behalf, the Judge considers that

there is no sufficient grounds for proceeding against the accused,

he shall discharge the accused.

21. The Hon'ble supreme Court has held in a reported

judgment in the case of P. Vijayan V. State of Kerala reported in

AIR 2010 SC 663, that if two view are possible and one of them

gives rise to suspicion only, as distinguished from grave suspicion,

the trial Judge will be empowered to discharge the accused and at

this stage he is not to see whether the trial will end in conviction or

acquittal. The Judge is not a mere Post Office to frame the charge,

but has to exercise his judicial mind to the facts of the case in order

to determine whether a case for trial has been made out by the

prosecution. The sufficiency of ground would take within its fold

the nature of the evidence recorded by the police or documents

produced before the court which ex-facie disclosed that there was

suspicious circumstance against the accused.

22. It is also held by the Hon'ble Supreme Court in the case

of State represented by the Deputy Superintendent of Police

Vigilance and Anti-Corruption, Tamil Nadu Vs. J. Doraiswamy

Etc., reported in LNIND 2019 SC 237, that while considering case

of discharge sought immediately after charge sheet was filed, Court

could not become Appellate Court and start appreciating evidence

by finding out inconsistency in statements of witnesses.

23. The Hon'ble supreme court also held in the judgment in

the case of State of Madhya Pradesh Vs. Mohan Lal Soni

reported in (2000) 6 SCC 388, where it is held the court is

required to evaluate the material and documents on record with a

view to find out if the facts emerging therefrom taken at their face

value disclose the existence of all the ingredients constituting the

alleged offence. The Court may for the limited purpose can verify

the record and it cannot be accepted even at the initial stage to

accept all the prosecution statements as gospel truth, even if it is

opposed to common sense of broad probabilities of the case. The

discharge of the accused by the trial Court in a corruption case,

where the I.O. withheld some documents without producing the

same before the trial Court while filing the charge sheet and the

trial Court rejected the application holding that the document

produced by the I.O. should be looked into and not the other

documents while framing of charge. But the High Court permitted

the accused to produce those documents and to consider even

while framing of the charges and the trial Court framed the charges

by ignoring those documents and in the revision the High Court

considered those documents and discharged the accused. The

same was challenged before the Hon'ble Apex Court and the

Hon'ble Apex Court upheld discharging the accused by the High

Court.

24. In another case reported in 2005 (8) SC 782 in the case

of D. S. P. Chennai Vs. K. Inbasagaran, has held that the

accused has given explanation satisfactorily regarding the money

and property belonged to his wife and it was declared before the

Income Tax Authorities, but the same was considered as income of

the accused by the trial Court, which cannot be considered as

income of the accused and therefore, the Apex Court has held, even

the income of the wife of the accused, which were undeclared

before the authorities, cannot be considered as the income or

assets of the accused.

25. By keeping all the principles laid down by the Hon'ble

Apex Court in various judgments in mind, now coming to the

allegation made against the accused by the police that the accused

was found in possession of the assets 100.86% more than his

known sources of income, as already held above, it is not in dispute

that the accused joined in police service in the year 1998 and he

was working as Dy.S.P. as on 26.11.2008, at Khade Bazaar, Sub-

Division, Belagavi while check period. The case was registered

against the accused and while registering the FIR one Sri.R.K.Patil

Police Inspector, Lokayukta, Belagavi collected source material and

gave report holding that the accused amassed wealth of 528.8%

more than his known sources of income. Admittedly, while filing

the charge sheet, it was shown as 100.86%.

26. One of the contentions taken by the learned counsel for

the accused is that the landed property held by his wife has been

acquired by the State for Upper Krishna Project and she had

received compensation and out of the said compensation, she also

reinvested some amount in purchasing the land, where she was

entitled for exemption in payment of stamp duty and remaining

amount she has invested in the bank as FD, but the I.O. though

collected all the materials, but he has purposely considered those

income of the wife as the assets of the accused, which cannot be

considered for the materials to frame the charge on perusal of

records. The said property at item No.4 of Schedule 'A' Property

i.e., the land bearing Sy.No.55/1+2B measuring 3 acres 31 guntas

situated at Jiragal village, was purchased out of the compensation

amount of `1,50,000/- paid to the wife of the accused Smt. Anjana.

It was contended that `30,000/- was invested in the transaction by

the accused out of the savings amount from the salary of the

accused and even the stamp duty was waived by the registering

authority as the property was purchased out of the compensation

amount paid to the land losers in Upper Krishna Project. The

property purchased for the sale consideration was `1,80,000/-. The

I.O. stated that the accused purchased this land in the name of his

wife on 26.02.2002. But it is declared by the accused in his Assets

and Liabilities statement in the year 2004-05 as purchased out of

the compensation, the I.O. presumed that, in order to avoid the

Lokayukta raid in future, the accused declared in the Assets and

Liabilities statement and in the charge sheet at page No.21, in

Schedule No.23, it was mentioned by the I.O. that a compensation

of `8,44,540/- was awarded in respect of land bearing Survey

No.64/1 situated at Kuchanoor village, Taluka: Jamakhandi under

U.K. Project. A division was made between the wife of the accused

and her sisters. `1,48,908/- was received as the share of his wife.

The said amount was shown in book No.2 page No.23 as item No.4.

It is stated by the I.O. that the said amount of `1,80,000/- was that

of the assets of the accused, which is prima facie wrong calculation.

But the very I.O. at page no.21 at Schedule 23 has stated that

`8,44,540/- has been received towards the compensation on

account of submerging of land in Upper Krishna project and the wife

of the accused got `1,48,908/- to her share, whereas the accused

contention is he has spent only `30,000/- and his wife purchased or

invested `1,80,000/- for purchasing the property in survey

No.55/1+2B measuring 3 acre 31 guntas in the name of the wife of

the accused. But the I.O. calculated `1,80,000/- as assets of the

accused which is not correct, since 3 acres 31 guntas of land was

purchased by the wife of the accused out of her share of

compensation received from the State. When the wife of the

accused received compensation and she has re-invested the

amount for purchasing the land and when the government exempts

her from payment of stamp duty, it cannot be considered as the

assets of the accused and the stamp duty considered as `80,462/-

in Item No.9 of Schedule 'B' under the expenditure cannot be

acceptable. When the State has given exemption of the tax to the

land losers as benefit under the Upper Krishna Project, that amount

cannot be considered as expenditure of the accused. On perusal of

the sale deed dated 26.02.2002, it stands in the name of the wife

of the accused and records are also available that the land has been

purchased out of the compensation received from the Upper

Krishna Project land losers and obtaining the exemption of stamp

duty. The trial Court rightly held that the I.O. has wrongly

calculated the amount of `1,80,000/- as assets of the accused for

having purchased the land by his wife out of the compensation

amount received by her and adding `80,462/- in his expenditure is

also wrong when the State has given exemption for stamp duty.

27. Another contention of the learned counsel for the

accused to show that the I.O. miscalculated the figures is that, the

wife of the accused sold the property in survey No.55/1

+2B measuring 3 acres 31 guntas for `10,35,000/-. The said land

was agreed to sell to one Lalitha Shankar Naik, who is her sister,

vide agreement for sale dated 20.10.2005 and received the earnest

money of `50,000/- and remaining amount `9,85,000/- was agreed

to be paid within a year and the wife of the accused received the

remaining sale consideration through bank transaction on various

dates i.e., `50,000/- on 09.09.2005, `1,00,000/- on 14.10.2005,

`3,00,000/- on 26.10.2005, `1,00,000/- on 01.12.2005, `50,000/-

on 21.01.2006, `1,75,000/- through cheque on 21.01.2006 and

`2,60,000/- on 20.04.2006, totally it comes to `10,35,000/-. The

wife of the accused given relinquishing right and given consent over

the said property for mutating the name of the purchaser and the

same was transferred among the family members. The property

was actually sold by his wife, but as she executed relinquishment

deed by relinquishing the right, though no sale deed was executed,

but the amount of `10,35,000/- received by the wife of the accused

through bank transaction was not at all considered by the I.O. and

it is stated, out of the said amount of `10,35,000/-, the wife of the

accused purchased a land of 1 acre in R.S.No.271/B for `2,38,800/-

and the remaining amount was invested in F.D. in the name of his

wife and his children. But the I.O. has not considered the income

of `10,35,000/- as income of the wife of the accused and the

investment made by his wife in purchasing the land for `2,38,800/-

and the investment of `10,06,393/- standing in the name of wife

and children was shown as assets of the accused, which is not

correct and prima facie it is a wrong calculation made by deleting

`10,35,000/- from the income of the wife of the accused and adding

`10,06,393/- as assets of the accused which increases the assets of

the accused in the Schedule 'A'. It is pertinent to note that the sale

of the land for `10,35,000/- and reinvesting in purchasing one acre

of land for `2,38,800/- and investing remaining amount in the bank

as F.D. belongs to the property of the wife of the accused, who was

accounted for it and the same was declared by the accused in his

assets and liability statement. Therefore, the said amount also

cannot be considered as assets of the accused.

28. Another wrong calculation made by the I.O. is

`80,462/- shown as expenditure of the accused which was the

stamp duty exempted by the Government while purchasing the land

by his wife out of the amount of compensation amount received.

That amount cannot be considered as expenditure of the accused.

29. As regards item No.7, the Farmhouse constructed in the

land bearing R.S.No.972/2/A measuring 4 acre 2 guntas of village

Sirur, Bagalkot Taluka, the said property was received by the

accused under the family partition held in the year 2004 i.e., much

prior to the registering the case, which was declared by the accused

in his assets and liabilities statement. The Farmhouse is worth

`9,00,000/- as valued by the building valuator of the Lokayukta.

But there is no material to show that the Farmhouse has been built

by the accused after the partition. But it was received by him as

Farmhouse in the family partition and the same was declared in his

assets and liabilities statement. It may be the asset of the accused,

but it cannot be said that it was purchased by him by paying any

sale consideration in order to include in Schedule 'A' as assets

acquired by the accused to calculate as excess asset in his account.

30. As regards Item No.10 in Schedule 'A' regarding

payment of earnest money of `7,00,000/- for purchasing the land

bearing Sy.No.86 measuring 22 acres 18 guntas of land at village

Bhoragi, is concerned, it was an unregistered document. No

signature is found on the said document and it was not declared by

the accused in his assets and liabilities statement for the year

2007-08. Therefore, the said amount is also wrongly considered as

assets of the accused in Schedule 'A'.

31. As regards to the agricultural income shown in Schedule

'C', the I.O. calculated the income of `10,40,248/- as agricultural

income, but the accused declared the agricultural income in his

assets and liabilities statement from the year 1997-98 to 2007-08

as `1,01,12,344/- and he got 1/5th share which comes to

`27,48,463/-. The accused also stated in his assets and liabilities

statement that he has received more than `34,00,000/- as

agricultural income for more than 10 years from 1997 to 2007. But

the I.O. by obtaining some unscientific information from some

Government official i.e., the Director of Agriculture, Bagalkot

stating that the agricultural income of accused's family from the

year 1981 to 2004 was only `16,81,733/- and he has got 1/7th

share which comes to `2,40,248/- which is prima facie wrong.

When the accused declared the agricultural income every year to

the official superior, the third person cannot say after thirty years

that the accused has no such income. Therefore, discarding the

income of `27,48,463/- as income from agricultural, the I.O. has

shown only `10,40,248/-, which is a prima facie wrong calculation

as per the available documents on record.

32. If these figures were considered, absolutely there will

be no material available on record to show that the accused

amassed the wealth of 100% more than the known source of

income in order to frame charges against the accused. Of course

the trial Court prepared three separate lists as A, B and C and its

own calculation which is not required. On taking out the major

amounts, which were unnecessarily added by the I.O., though it

belongs to the wife of the accused and though the accused received

more income, but the I.O. shown it as less income only to file the

charge sheet against the accused, the income and assets of the

wife of the accused is excluded, the agricultural income of the

accused is considered as his income, there will be no material for

framing of charge against the accused.

33. Therefore, as held by the Hon'ble Apex Court in the

above said decisions, the Court may not be required to evaluate

each and every document and appreciate the documents, but on

prima facie looking at the documents, the calculation made by the

I.O. purposely deleting his income, adding the income of the wife of

the accused, adding the value of ancestral property as property

purchased by the accused, by showing less value than the

agricultural income received from the ancestral property, showing

the share of property received under partition were all goes to show

that the calculation made by the I.O. for allegation to show that the

accused amazed 100.86% assets more than his known sources of

income cannot be acceptable on the face of the record in order to

frame the charges against the accused.

34. It is well settled that the court is required to consider

the prima facie material placed by the prosecution. But all these

materials placed by the I.O. shows a wrong calculation and miss

calculations. Therefore, the I.O. might have taken more than 4½

years for the I.O. to file the charge sheet. It is also seen that the

I.O. himself was the Inspector who collected the source report and

he himself was being posted as Investigating Officer and he tried

his level best to file the charge sheet to show that his source report

is correct. After investigation if he show that there is no case

against the accused, then his source report would have been a

wrong report and therefore, he managed to file the charge sheet by

searching the reasons for doing so. Therefore the trial Court has

rightly considered only few figures mentioned by the I.O. and has

rightly discharged the accused as there are no materials for framing

of charge against the accused, which does not require interference

by this court.

35. The Coordinate bench of this Court in the case of State

by Lokayukta Police Station Vs. Shashidhar in Criminal Petition

No.11008/2013 has dismissed the petition filed by the Lokayukta

and confirmed the order of discharge in a similar situation, where a

wrong calculation was made by the I.O. in filing the charge sheet in

similar cases. Therefore, in this case also the I.O. made a wrong

calculation and filed the charge sheet and therefore, the materials

are not sufficient to frame the charge and the trial Court rightly

discharged the accused.

36. As regards the investigation conducted by the Police

Inspector, the proviso to Section 17 empowers the police officer not

below the rank of an Inspector of Police for conducting

investigation. In this case, the Superintendent of Police,

Lokayukta, Belagavi, by his order No.SP/KLA/Belgavi-3/2008 dated

26.11.2008 authorised Sri.R.K.Patil for conducting investigation.

Therefore, the Superintendent of Police under Section 17 of the P.C

Act authorised the person not below the rank of Police Inspector for

conducting the investigation. Therefore, this court cannot find fault

with conducting of investigation by the Inspector of Lokayukta.

37. Another contention raised by the counsel for the

accused Smt. Shobha Patil is that, after discharging the accused by

the trial court, the State Government vide its letter dated

26.12.2014 issued an official communication to the Legal Cell,

Karnataka Lokayukta, Bengaluru vide letter No.HD:11815:HCP-

1:2014 i.e., the Home Department, Principal Secretary to

Government (PCAS) has opined and instructed that the State has

taken the decision not to file any appeal and there is no necessity

to file appeal against the order of discharge. In this regard, learned

Special counsel for Lokayukta has failed to submit whether the

Lokayukta is having power to supersede the order of the State

Government and to file the appeal or revision by nullifying the

State's decision for not filing the appeal. Even the learned special

counsel for Lokayukta not able to show the power of the Lokayukta

Inspector or Lokayukta Police to file an appeal as against the

decision of the State Government not to file an appeal. Even on

considering the Conduct of Government Litigation Rules 1985, no

where it is stated that the Lokayukta has power to file an appeal

even though when the Home Department of State Government

instructed not to file an appeal. Therefore, the State Government

and it's official the Under Secretary to the Government, Home

Department after going through the records and order of discharge,

has opined that it is not a fit case for filing an appeal. Such being

the case, without the order of the Ministry, Home Department or

order of the Hon'ble Chief Minister, filing the appeal by the

Lokayukta by superseding the order of State Government is not

correct.

38. In view the above, there is no need for this Court to

interfere with the order passed by the trial Court in discharging the

accused. The revision petition is devoid of merits and hence liable

to be dismissed.

Accordingly, revision petition is dismissed.

Sd/-

JUDGE

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