Karnataka High Court

H.D.Mohan Kumar, vs The State Of Karnataka on 5 July, 2021

Author: Dr.H.B.Prabhakara Sastry

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JULY 2021

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.3 OF 2018

BETWEEN:

H.D.Mohan Kumar,
Aged about 45 years,
Government Primary School Teacher,
R/o Hanuman Nilaya,
Harave Mallaraja Pattana,
Bettadapura Road,
Periyapatanna Town,
Taluk-571 121.                                 .. Petitioner

 ( By Sri Shivaramu H.C., Advocate )

AND:

The State of Karnataka,
Through Lokayukta Police,
Mysuru-570 001.                                .. Respondent

 ( By Sri Venkatesh S. Arabatti, Spl.PP.)

       This Criminal Revision Petition is filed under Section 397
read with Section 401 Cr.P.C. praying to call for records, set
aside the order dated 3.10.2017, passed by the III Addl.District
& Sessions Judge and Special Judge for Prevention of
Corruption Act, 1988, at Mysore in Special C.C.No.18/2016 at
Annexure-A and discharge the petitioner from the proceedings
and to pass such other relief/s, which this Hon'ble Court deems
fit in the facts and circumstances of the case in the interest of
justice and equity.
                                                   Crl.RP.No.3/2018
                               2


     This Criminal Revision Petition having been heard and
through Physical/Video Conferencing hearing and reserved for
Orders on 02.07.2021, this day the Court made the following:

                            ORDER

The application under Section 227 and Section 239 of

Code of Criminal Procedure, 1973 (hereinafter for brevity

referred to as `Cr.P.C.'), filed by the present petitioner, as an

accused, in the Court of learned III Addl.Sessions & Special

Judge, at Mysuru, (hereinafter for brevity referred to as

`Special Court'), in Special Case No.18/2016, which was for the

offences punishable under Section 13 (1)(e) read with Section

13(2) of Prevention of Corruption Act, 1988 (hereinafter for

brevity referred to as `P.C.Act'), came to be rejected by the

order of the Special Court dated 03.10.2017. Aggrieved by the

same, the accused in the Special Court has filed the present

petition.

2. The respondent is being represented by learned Special

Public Prosecutor.

3. Though this matter is listed for admission, with the

consent from both parties, the matter was taken up for

arguments on main on merits.

Crl.RP.No.3/2018

4. Heard the arguments from both side and perused the

materials placed before this Court.

5. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Special

Court.

6. After hearing both side, the only point that arise for my

consideration in this revision petition is:

Whether the impugned order passed by the Special Court on the application filed by the present petitioner under Section 227 and Section 239 of Code of Criminal Procedure, 1973, is perverse, illegal or erroneous warranting interference at the hands of this Court?

7. The summary of the case of the respondent-Police who

have filed the charge sheet in the Special Court is that the

accused is possessing the assets disproportionate to his known

source of income. The background of the accused is that the

accused at the time of raid, was working as an Assistant

Teacher at Government Primary School, Sathyagala Kavalu

Village, Periyapatna Taluk, Mysuru District. It is alleged in the

charge sheet that during the check period from 16.08.1998 to Crl.RP.No.3/2018

30.10.2013, the accused and his family members accumulated

assets in the form of movable and immovable properties of the

value of `1,22,66,990/-. The expenditure of the accused and

his family members was `30,52,517/-, whereas, during the said

period, the lawful income of the accused and his family

members was `71,16,307/-. Hence, the accused was holding

an asset disproportionate to his known source of income by a

sum of `82,03,201/-, which is disproportionate to an extent of

115.273%, thus, committed an offence punishable under

Section 13 (1)(e) read with Section 13 (2) of P.C.Act. The

Special Court by its order dated 20.02.2016, took cognizance of

the offence and issued process to the accused. Upon his

appearance, the accused filed an application before the Special

Court under Section 227 and Section 239 of Cr.P.C.

8. After hearing both side, the Special Court by its

impugned order dated 03.10.2017, rejected the said application

as devoid of merit. It is challenging the said order, the accused

in the Special Court has preferred the present revision petition.

9. Learned counsel for the petitioner in his argument

reiterated the contentions taken up by the petitioner in his Crl.RP.No.3/2018

memorandum of petition. According to the learned counsel for

the petitioner, the Investigating Officer has committed the

following mistakes which has led him to file the charge sheet

against the petitioner :

(i) omission of rental income earned by the petitioner/accused, which is at `8,81,000/-,

(ii) omission of rental income earned by the wife of the petitioner,

(iii) omission of income received by the petitioner/accused as advance amount/part of sale consideration by selling his immovable properties owned during the check period,

(iv) non-consideration of sale receipt received by the wife of the petitioner/accused by selling Hyundai Santro Car as receipt of income for the check period,

(v) non-consideration of agricultural income earned and received by the petitioner and his wife for the check period,

(vi) the value of wooden fixtures and furnitures was not considered properly,

(vii) the value of gold ornaments and silver articles were not considered properly, and Crl.RP.No.3/2018

(viii) the value of the property `Hanumana Nilaya', Harave Mallaraja Pattana, Periyapattana Town, was considered in excess.

With this, he submitted that the Special Court failed to

note these discrepancies in the charge sheet filed by the

respondent, which has led it to pass an erroneous order on the

application of the accused. Though the learned counsel for the

petitioner has cited some judgments in his memorandum of

petition, but, he did not refer the same in his argument.

10. Learned Special Public Prosecutor for the respondent in

his brief arguments submitted that the grounds taken in the

Criminal Revision Petition were not the grounds taken in the

interlocutory application before the Special Court. The alleged

rental income and income from the joint family property etc.,

are all the subject matter of the trial since they are all the

alleged facts in question. He also submitted that the

Investigating Officer is only required to collect the information

under different Schedules to the P.C.Act and submit it to the

Court and it is for the Court to arrive at the conclusion under

Section 13 (1)(e) of P.C.Act with respect to the alleged

disproportionate asset. He further submitted that even though Crl.RP.No.3/2018

the petitioner contends that all his income were lawful income,

but, he has failed to disclose the same either in statement of

Assets and Liabilities to his employer or Income-tax authorities,

as such, they cannot be considered as income from known

sources. He also submitted that the Investigating Officer

cannot be a Judge and since all the grounds raised by the

petitioner are all the disputed facts, the same have to be

necessarily the subject matter of the trial. He also submitted

that in the Special Court, the matter is at the stage of the

evidence of PW-14, as such, it is at the fag end of the trial, at

which time, the application of the present nature cannot be

considered or entertained since it serves no purpose.

11. According to the petitioner, himself and his wife had

rental income, which was not considered by the Investigating

Officer. The petitioner has given the details in his petition as to

how much of rental income, himself and his wife have received

and from which tenants. Admittedly, the petitioner has neither

disclosed the alleged rental income in his Income-tax returns or

declared to his employer. Though the learned counsel for the

petitioner contends that the petitioner being a Primary School

teacher, was not well-versed with the knowledge of law, as Crl.RP.No.3/2018

such, he might have committed some omission or mistake, the

ignorance of law, more particularly, about non-disclosure of

certain alleged income to the Income-tax authorities cannot be

considered as an omission simpliciter attracting no consequence

and risk on the part of the person who has caused the alleged

omission.

12. The petitioner also contended that the Investigating

Officer has not considered the income received by him as an

advance amount/part of sale consideration by selling his

immovable property during the check period. However, a

perusal of the materials placed before this Court would go to

show that the Investigating Officer has considered and

discussed the said aspect of the alleged income from the sale of

immovable property in the form of receipt of partial sale

consideration. However, if the petitioner is not satisfied by the

same and is aggrieved by the same, then, it is during the

course of the trial, he can take up his contention or defence as

it deems fit for him in the circumstances of the case.

13. With respect to the alleged non-consideration of the

sale consideration of Hyundai Santro motorcar is concerned, it Crl.RP.No.3/2018

appears that the Investigating Officer has discussed about the

said receipt of the income in his final investigation report. If

the petitioner is aggrieved by the same, then, the correctness

of the said discussion made in the final investigation report

would become the subject matter of trial, but, the Special Court

is not expected to assess and evaluate the correctness of every

piece of evidence placed before it by the investigating agency

along with the final report. The same reason holds good with

respect to the alleged agricultural income of the petitioner.

14. With respect to the valuation of the wooden fixtures,

gold and silver ornaments and articles are concerned, it is not

the case of the petitioner that the valuation of those assets and

properties were not considered by the investigating agency,

but, the petitioner disputes the correctness of the valuation of

those properties. The said dispute with respect to the

correctness of the valuation has to be necessarily tested during

the course of the trial since as at now it is highly premature for

any Court to discuss the correctness of the valuation made by

the Investigating Officer under P.C. Act with respect to those

properties, while dealing with an application filed either under

Section 227 or under Section 239 of Cr.P.C Crl.RP.No.3/2018

15. The Hon'be Apex Court in K.Veeraswami -vs-

Union of India and others, reported in 1991 SCC (Cri) 734,

with respect to the role of the Investigating Officer under

Prevention of Corruption Act, 1947 and under Sections 156 to

167 of Criminal Procedure Code, 1973, (P.C. Act and Cr.P.C. as

prevailing then), was pleased to observe in Paragraph-75 of its

judgment as below :

" The investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry Crl.RP.No.3/2018

against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet."

In the instant case, it is not the case of the petitioner that

the explanation given by the petitioner and the documents

submitted by the petitioner/accused to the Investigating Officer

were not considered by the Investigating Officer. However,

according to the petitioner, the Investigating Officer has not

appreciated those documents as expected by the

accused/petitioner. If according to the petitioner/accused, the

Investigating Officer has committed any such alleged error in

appreciating the materials or documents placed before him,

then, the said aspect has to be considered in the trial, but, not

at the stage of disposing of the application filed either under

Section 227 or under Section 239 of Cr.P.C. Thus, all the

alleged discrepancies attempted to be highlighted by the

petitioner as grounds in his petition since being all alleged

disputed facts, they are required to be considered only during

the course of trial and final disposal of the petition, provided the Crl.RP.No.3/2018

accused takes those contentions during the trial, but, not while

considering the application under Section 227 and Section 239

of Cr.P.C.

16. Lastly, learned counsel for the petitioner also

canvassed a point that even according to the respondent, the

source of the income for the alleged excess than the salaried

income of the petitioner were not from any illegal activity or

from any illegal source since they are the rental income,

agricultural income etc., Therefore, when they are not from

illegal source, the petitioner with bona fide intention has not

disclosed them either in his Income-tax returns or in his

statement of Assets and Liabilities/APR before his employer.

With this, he submitted that those income cannot be considered

as income other than from the known sources.

Learned counsel for the respondent submitted that a reading

of Section 13(1)(e) of the P.C. Act (as was standing then) makes it

very clear that it is not just necessary to receive the income from

any lawful source, but, it is also necessary that the recipient

should intimate the receipt of those income as per the provisions of

law.

Crl.RP.No.3/2018

17. Section 13(1)(e) of the P.C. Act (as was standing

then), reads as below :

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

     (a)   xxx            xxx        xxx
     (b)   xxx            xxx        xxx
     (c)   xxx            xxx        xxx
     (d)   xxx            xxx        xxx

     (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."

The above explanation to Section 13(1) of the P.C. Act

makes it very clear that to treat a property as from known

source of income, the said income must not only should have

been received from lawful source, but, also the receipt of such Crl.RP.No.3/2018

income should have been intimated in accordance with the

provisions of law, rules or orders for the time being applicable

to a public servant.

18. In the case on hand, as could be gathered at this

stage, the petitioner has not disclosed or intimated about his

alleged income from house property, immovable property,

agricultural property or Hindu undivided family in a manner

required under the provisions of law governing his service