Mr Onkar Murthy vs State By
2023 Latest Caselaw 4983 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF JULY 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.7442 OF 2022
BETWEEN

MR. ONKAR MURTHY
S/O LATE P VEERABADRAPPA
AGED 64 YEARS
NO.1146, 13TH MAIN
NAGAPURA WARD
2ND STAGE
NEAR SHANKAR MUTT SIGNAL
MAHALAXMIPURAM
BANGALORE 86
                                          ... PETITIONER
(BY SRI PARAMESHWAR N HEGDE, ADVOCATE)

AND

STATE BY KARNATAKA
THROUGH KARNATAKA LOKAYUKTA POLICE
BANGLORE CITY DIVISON
REP BY ITS SPECIAL PUBLIC PROSECUTOR
BANGALORE 01
                                         ... RESPONDENT

(BY SRI B.S. PRASAD, SPECIAL COUNSEL FOR LOKAYUKTA)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
19.07.2022 PASSED BY THE LEARNED LXXVII ADDL. CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, 1988, BENGALURU (CCH-
78)    IN   SPL.C.C.NO.1199/2019    AND   CONSEQUENTLY
DISCHARGE THE ACCUSED/PETITIONER FOR THE OFFENCE
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PUNISHABLE UNDER SECTION 13(e) READ WITH SECTION
13(2) OF PREVENTION OF CORRUPTION ACT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 5.6.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:

                              ORDER

This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. for setting aside the order of Special

Court dated 19.07.2022 in Spl. C.C.No.1199/2019 and to

discharge the petitioner under Section 13(e) read with

Section 13(2) of Prevention Corruption Act (hereinafter

referred to as 'P.C. Act').

2. Heard the arguments of learned counsel for the

petitioner and learned Special Counsel for the respondent-

Lokayuktha.

3. The case of the prosecution is that Lokayuktha

police filed charge sheet against the petitioner alleging that

the petitioner is the public servant working in Karnataka

Industrial Areas Development Board (hereinafter referred

to as 'KIADB') as Development Officer and during his

tenure between 16.12.1981 and 26.09.2013, he has

amassed assets of Rs.44,82,810.78 ps. against known

sources which amounts to 24.17%. The petitioner being

aggrieved with the percentage calculated by the

investigation officer, approached this Court by filing

Criminal Petition No.6253/2020 alleging that some of the

documents produced by the petitioner has not been

considered by the trial Court including the loan availed by

him for Rs.20,40,000/- and this Court directed the trial

Court to consider the same and accordingly, the trial Court

only considered Rs.20,40,000/- but not considered the

refundable advance amount in the income and the chit

fund income while calculation, if that is calculated, there is

no disproportional assets. The trial Court has not

considered the same. Hence, the petitioner is before this

Court.

4. Learned counsel for the petitioner contended that

the investigation officer left out two more items in respect

of rental income and refundable deposit of Rs.1,50,000/-

and income from chit fund of Rs.9,29,400/- and the

payment made towards chit fund of Rs.84,000/-. If that is

calculated, the income would be more than the amount of

income considered by the investigation officer. The

learned counsel further contended that the wife of the

petitioner-accused was partner in a firm, the value of the

property/building was considered at Rs.10,23,247.25 ps.

by the valuator, and thereafter, the depreciation of

Rs.2,06,490.38 ps. was deducted. If the said value of

income is considered and value of the assets are deducted,

the disproportionate assets would be less than 10%.

Therefore, prayed for allowing the petition.

5. Per contra, learned counsel for respondent-

Lokayuktha objected the petition and contended that the

investigation officer collected the materials and placed the

same before the Court and at that stage, the petitioner

approached the trial Court only for consideration of the

loan of Rs.20,40,000/-, which was not considered by the

investigation officer. Accordingly, the trial

Court/investigation officer considered the same and

reduced the percentage from 24% to 11%. Whether the

petitioner misused income towards advance amount or chit

amount, are all the material of trial. The investigation

officer cannot consider all those points and his duty is only

to collect the materials and place it before the Court. The

trial Court after considering all the heads, found that there

is material for framing of charge against the petitioner and

dismissed the discharge application. Therefore, there is

nothing to interfere in the said order. Hence, prayed for

dismissing the petition.

6. Having heard the arguments of learned counsel

for the parties, perused the records. On perusal of the

same, it reveals that the Lokayuktha police filed charge

sheet for the check period from 1981 till 2013. The total

assets of the petitioner and his family members was

Rs.1,35,59,959.58 ps. and the total expenditure was

Rs.94,68,564.76 ps. and total assets and expenditure was

Rs.2,30,28,524.30 ps. and the income was

Rs.1,85,45,713.56 ps. and disputed assets was at

Rs.44,82,810.78 ps. which amounts to 24.17%. The

petitioner has contended that the loan amount received by

him to the tune of Rs.20,40,000/- has not been considered

by the investigation officer and therefore, a direction was

issued to the investigation officer to consider

Rs.20,40,000/- as income. The investigation officer has

considered the same and filed the charge sheet by

reducing the disproportionate assets to 11% from 24%.

Now, the petitioner is once again before this Court

contending that an amount of Rs.96,317/- should be

calculated, as his income in respect of the expenditure on

construction was calculated at Rs.10,23,247.25 ps. and

Rs.2,06,490.38 ps. not considered towards depreciation.

Therefore, Rs.2,00,000/- requires to be reduced from the

expenditure.

7. The learned counsel for the petitioner has further

contended that the petitioner received Rs.9,29,400/-

towards chit fund and the same was not considered. The

advance amount for having received by the petitioner has

also not been considered by the investigation officer.

8. Learned counsel for the respondent has objected

the petition by contending that, on the earlier point of

time, there was no such prayer before the High Court

except for considering the amount of Rs.20,40,000/-

towards the loan amount. Admittedly, the investigation

officer considered Rs.20,40,000/- as income and

recalculated the income and expenditure and filed report.

Now, once again, the petitioner has come up before this

Court contending that various components should be

considered. Once the trial Court has considered all these

points and rejected the application filed under Section 239

of Cr.P.C. holding that the defence available shall be

considered while conducting the trial on merits and while

appreciating the evidence, the question of filing the

petition before this Court does not arise. In a recent

judgment, in NEERAJ DUTTA Vs. STATE (GOVT. OF

N.C.T. OF DELHI) reported in 2022 SCC OnLine SC 1724,

the Hon'ble Supreme Court has stated that the High Court

shall not act as an auditor while considering the petition

under Section 482 of Cr.P.C. for quashing the proceedings.

It is the duty of the trial Court to consider all the materials

produced by the investigation officer before framing of the

charge and the prosecution is required to prove the case

and the guilt of the accused and finally, the trial Court is

required to give findings. Therefore, this court cannot go

into each and every calculation made by the investigation

officer and discharge the petitioner at this stage.

Accordingly, the petition filed by the petitioner under

section 482 of Cr.P.C. is hereby dismissed.

Sd/-

JUDGE

Cs/-