Karnataka High Court

Nagaraju H M vs The State Of Karnataka on 9 March, 2022

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.9871 OF 2021

BETWEEN:

NAGARAJU H.M.,
S/O H.M.MUNISWAMY,
AGED ABOUT 51 YEARS,
R/O #412, 10TH MAIN,
MUDDAIAHNAPALYA,
60 FEET ROAD, NAGARABHAVI
NEAR RTO OFFICE,
BHAVANINAGAR,
RAILWAY LAYOUT,
BENGALURU - 560 023.
                                                  ... PETITIONER
(BY SRI P.MAHESHA, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP.: BY LOKAYUKTHA
       RAMANAGARA DISTRICT,
       REPRESENTED BY S P P
       HIGH COURT OF KARNATAKA,
       BENGALURU - 560 001.

2.     SRI CHETHAN
       S/O PUTTAIAH
       AGED ABOUT 30 YEARS,
       R/AT 462/42, 2ND CROSS,
       MARUTHI NAGAR, HEROHALLI,
       YESHWANTPURA HOBLI,
                                 2



      MAGADI MAIN ROAD,
      BENGALURU - 560 091.
                                                   ... RESPONDENTS
(BY SRI B.S.PRASAD, ADVOCATE FOR R1)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE IMPUGNED ORDER PASSED
BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN SPL.C.NO.97/2016 DATED 06.05.2021 AND ETC.,

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

                              ORDER

The petitioner/accused No.2 is before this Court calling in

question the proceedings in Special Case No.97 of 2016 pending

before the Principal District and Sessions Judge, Ramanagara,

registered for offences punishable under Sections 7, 8, 13(1)(d)

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

('the Act' for short).

2. Heard Sri P.Mahesha, learned counsel for the petitioner

and Sri B.S. Prasad, learned counsel for respondent No.1.

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

borne out from the pleadings, are as follows:

According to the prosecution, on 27-12-2014, the

petitioner along with other accused seized 34 empty gas

cylinders from the house of the informant on the allegation that

the informant was purchasing gas cylinders at a particular price

and illegally selling them for Rs.50/- or Rs.100/- more. It is

alleged that the petitioner demanded illegal gratification from the

informant for getting the case cleared by mediating with the

Police. The talks did not fructify into any settlement on the score

that the informant could not adjust the money that the

petitioner had demanded. On 30-12-2014, accused No.1 is said

to have demanded Rs.1,00,000/- as illegal gratification. The

said illegal gratification was received through the petitioner

beginning from Rs.10,000/- and the remaining of the amount

was to be settled by giving it to accused No.3 on the same day.

It is thus accused No.2/petitioner got involved in the receipt of

money in the episode of selling of gas cylinders by the informant.

A FIR came to be registered against the petitioner and others on

30-12-2014 and pursuant to the investigation conducted, the

Police have also filed a charge sheet against the petitioner for the

aforesaid offences. Aggrieved by the name of the petitioner being

figured in the charge sheet, an application was filed under

Section 227 of the Cr.P.C. by the petitioner and another seeking

their discharge from the charges levelled against them. The said

application being turned down by the learned Sessions Judge,

the petitioner has knocked the doors of this Court in the subject

petition.

4. The learned counsel appearing for the petitioner would

submit that the petitioner is in no way connected to the case; he

had no knowledge of the informant selling cylinders at a higher

price and would submit that the petitioner has been falsely

implicated in the case. The learned counsel further draws

support from the discharge of accused No.5 on account of no

sanction being placed before the Court to prosecute the said

accused as he is a Government servant.

5. The afore-narrated facts are not in dispute. Sanction

was the reason for discharge of accused No.5, that by itself

would not absolve the petitioner to seek his discharge at the

hands of this Court after it having been turned down by the

learned Sessions Judge. Prima facie, the demand of illegal

gratification from the informant for clearing the case of seizure of

gas cylinders is brought out in the narration of facts. The

further allegation against the petitioner is that, on 30-12-

2014, the petitioner demanded Rs.1,00,000/- for release of gas

cylinders seized and informant had called the petitioner to meet

him at a particular place for settling the issue. Therefore, the

petitioner had demanded and accepted a part of illegal

gratification of Rs.10,000/- to pay it to accused No.1 or to any

other accused. With this material, it is difficult to believe at this

stage that the petitioner was in no way involved in the entire

transaction as these are disputed questions of fact which will

have to be settled only after a full-fledged trial. The Apex Court

in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH

reported in (2021) 9 SCC 35, has held as follows:

"10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/ allegations which are required to be gone into and considered at the

time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e., a joint notarized affidavit of mamta Gupta - accused No.2 and Munni Devi under which according to Accused No.2 - Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs.25 lakhs and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27-10-2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused No.2. Whether Rs.25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs.25 lakhs is stated to be sale consideration and there is reference to the payment of Rs.10 lakhs by cheques. It is a registered document.

The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

... ... ... ...

14. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. is unsustainable and the same deserved to be

quashed and set aside and is accordingly quashed and set aside. Now, the trial to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C. only and the trial Court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

(Emphasis supplied)

The Apex Court in the afore-extracted judgment has clearly

stalled the hands of the High Court in exercise of its jurisdiction

under Section 482 of the Cr.P.C. if on consideration of facts

there were seriously triable issues. On consideration of facts in

the case at hand, there cannot be any doubt that there are

triable issues in the form of disputed questions of fact for which

a trial would become necessary. There is no document or

material placed before this Court that is so unimpeachable or

such facts being present in the case where the allegation against

the petitioner is so absurd or improbable warranting interference

under Section 482 of the Cr.P.C.