Karnataka High Court

Mr Yashwanth vs State Of Karnataka on 18 May, 2023

Bench: K.Natarajan

                           1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 18 TH DAY OF MAY, 2023

                        BEFORE

         THE HON'BLE MR. JUSTICE K.NATARAJAN

          CRIMINAL PETITION NO.1099 OF 2023

BETWEEN

MR. YASHWANTH B.S.
S/O SIDDALINGAPPA,
AGED ABOUT 41 YEARS,
R/AT SIDDAGANGA NILAYA,
OPP. RAJEEVGANDHINAGAR PARK
RAJEEVGANDHINAGARA MELEKOTE
TUMAKURU - 572 102.                   ... PETITIONER

(BY SRI NAGABHUSHANA REDDY K., ADVOCATE)

AND

1.    STATE OF KARNATAKA
      BY LOKAYUKTA POLICE,
      (EARLIER ANTI-CORRUPTION BUREAU,
      BANGALORE CITY DIVISION)
      REPRESENTED BY SPP
      HIGH COURT OF KARNATAKA,
      AT BANGALORE-560001

2.    SHIVASHANKAR B N
      AGED ABOUT 65 YEARS,
      S/O DR.B. NANJUNDAPPA,
      RETIRED SUBORDINATE SECRETARY
      MINISTRY,
      BANGALORE
                                2




    R/AT NO.842, IST STAGE,
    14TH CROSS, CHANDRA LAYOUT,
    NEAR DURGA PARAMESHWARI TEMPLE,
    BANGALORE-560072
                                ... RESPONDENTS

(BY SRI B.B. PATIL, SPECIAL COUNSEL FOR R1
 R2 SERVED)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR AND
COMPLAINT AGAINST THE ABOVE PETITIONER IN
CR.NO.01/2021 OF LOKAYUKTA POLICE (EARLIER ANTI-
CORRUPTION BUREAU, BENGALURU CITY DIVISION) FOR
THE OFFENCE PUNISHABLE UNDER SECTION 7(a) OF P.C.
ACT WHICH IS PENDING ON THE FILE OF COURT OF 23RD
ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.04.2023, THIS DAY, THE
COURT MADE THE FOLLOWING

                           ORDER

This petition is filed by the petitioner-accused No.1

under Section 482 of Cr.P.C. for quashing the FIR in Crime

No.1/2021 registered by the then ACB (Bangaluru City

Division), now Lokayuktha, for the offence punishable

under Section 7(a) of the Prevention of Corruption Act,

1988 (for short 'P.C. Act').

2. Heard the arguments of learned counsel for the

petitioner, learned Special counsel for the respondent

No.1-Lokayuktha. The respondent No.2 served and

unrepresented.

3. The case of the prosecution is that the

complainant one Shivashankar, a retired Under Secretary

worked in Secretariat, Bengaluru filed a complaint on

07.01.2021 to the Lokayuktha Police alleging that he is

said to be purchased a land in Survey No.79 at Shettigere

Village, Jala Hobli, Bengaluru North Taluk, Bengaluru

measuring 5 acres for a sum of Rs.2.80 Crores from one

Syed Babajan and an agreement of sale has been

registered on 18.06.2018, but the said Syed Baba Jan said

to be entered an agreement of sale with one Mukesh Mittal

on 02.08.2018. Therefore, a civil case has been filed which

is pending in R.A.No.6/2019 and stay has been granted by

the Civil Court. Therefore, the complainant want to put up

a board on the land and when he has approached the

police for protection on 24.12.2019, they asked him to

bring all the documents, therefore, once again he

approached the Police Inspector- this petitioner. For that

the petitioner said to be demanded Rs.10,00,000/- for

providing protection and he also demanded to pay a part

of the amount, therefore, he came back. On 29.08.2020,

the Police Constable in the said police station telephoned

to the complainant and demanded to pay Rs.10,00,000/-

and again telephoned to the complainant on 29.08.2020.

He further stated that he has put up a board on the

property, it was removed by some opposite party,

therefore, once again he has approached the Chikkajala

Police though one Nanjapppa. Then on 01.09.2020, in the

house of one Nanjappa, the complainant handed over

Rs.2,00,000/- and subsequently, he has given another

Rs.2,00,000/- and remaining Rs.6,00,000/- was pending.

Since, the complainant was not willing to pay the bribe, he

has approached the police and in turn, the Police

registered the FIR and trap was set up. On the date of

trap, the complainant approached accused No.2-the police

constable and informed that the complainant is bringing

money. Thereafter, while accused No.2 receiving the cash

of Rs.6,00,000/-, the police apprehended him and seized

the cash under the panchanama and then shown the name

of the present petitioner as absconding and took up the

investigation which is under challenge.

4. The learned counsel for the petitioner has

contended that the petitioner was not at all either

demanded or accepted any bribe. Accused No.2 who was

accepted the bribe amount was caught red handed. At

that time, the petitioner was not at all in the Police station,

he was engaged in investigation in a criminal case and he

is not aware about the demand and acceptance made by

the accused No.2. He further contended that as per the

complaint, the petitioner is said to be demanded the bribe

in December 2019 and absolutely, there is no mention of

date of demand and immediately, there is no complaint

filed by the complainant. Even otherwise, the complaint as

per the complainant, accused No.2 is said to be demanded

the bribe on 29.08.2020. Even at that time, there is no

complaint filed against the petitioner for demanding the

bribe. Even as per the complaint, the part of the amount

has been paid to the petitioner on 01.09.2020, but there is

no complaint filed within seven days from the date of the

demand as required under Section 8 of the P.C.Act.

Therefore, it is contended that there is no demand and

acceptance, work entrustment with the petitioner and no

case was registered on behalf of the complainant in the

Chikkajala Police Station. Even though, there is no

telephonic conversation between this petitioner and the

complainant. The complaint has been filed after four

months of the alleged demand. Therefore, prayed for

quashing the FIR.

5. Learned counsel for the petitioner also

contended that even otherwise, accused No.2 was caught

red handed, he has not stated in his explanation during

the trap panchanama that he has accepted the cash on

behalf of accused No.1-the present petitioner. Therefore, it

is contended that conducting investigation against the

petitioner is abuse of process of law. Hence, prayed for

quashing the same.

6. Per contra, learned counsel for the respondent

objected the petition and contended that accused No.2 had

telephone conversation with the complainant where he has

stated about the demand made by this petitioner. There

was demand and acceptance of bribe by accused No.2 on

behalf of this petitioner. Therefore, it is contended that the

matter is required detailed investigation and the case is

based upon circumstantial evidence. Hence, prayed for

dismissing the petition.

7. Having heard the arguments on both the sides

and on perusal of the records, which reveals, the petitioner

is said to be a Police Inspector working in Chikkajala Police

Station. The defacto-complainant is said to approached

this petitioner for protection and keeping a board in

respect of civil dispute and met this petitioner on

24.12.2019. Subsequently, accused No.2-Constable said

to be took the complainant by the side of the Police station

and demanded Rs.10,00,000/- as bribe. Subsequently,

the complainant denied the payment and met the

petitioner through Nanjappa. He said to be paid the said

amount in the house of Nanjappa twice and it was prior to

01.09.2020 and remaining Rs.6,00,000/- was said to be

demanded by this petitioner through accused No.2. Then

on 02.12.2020, the complainant contacted accused No.2

and the complainant filed complaint to the police on

07.01.2021 by producing the call record held between the

accused No.2 and himself said on 02.12.2020. On perusal

of the records, especially, the FIR and trap panchanama

reveals, subsequently on 08.01.2021, the complainant

contacted accused No.2 through telephone and thereafter,

at 8.30 p.m. when handing over Rs.6,00,000/- to accused

No.2, he was caught red handed and seized under the

panchanama. On perusal of the records, it is an admitted

fact, absolutely, there is no direct telephonic conversation

between this petitioner and the complainant and the

petitioner also not demanded directly with the complainant

for any bribe either as on the date of trap or in the year

2020 either in December 2019 or August 2020. There is

no telephonic conversation record produced to show that

this petitioner actually demanded any bribe from the

complainant. Apart from that, it is also an admitted fact,

there is no acceptance of any bribe by this petitioner on

08.01.2021 as it was seized from accused No.2 while he

was receiving the bribe. Absolutely, there is no demand

and acceptance by this petitioner from the complainant for

any bribe. The learned counsel for the petitioner has

contended that the demand and acceptance is sine qua

non for registering the case under the P.C. Act. That apart

on 08.01.2021, this petitioner was not at all in the Police

station, he was out of police station for an investigation in

a criminal case in Crime No.105/2020 and the documents

seized by the ACB Police also reveals that as per the SHD,

the Police Inspector, the petitioner came to the Police

Station at 9.00 a.m. and left the Police station at 12.30

p.m. by replacing the in charge of the Police station by ASI

and other constables. The copy of the SHD dated

06.01.2021 and 07.01.2021 clearly reveals that this

petitioner was not in the Police station while accused No.2

accepting the bribe.

8. Learned counsel for the petitioner has relied

upon the judgment of the Co-ordinate Benches of this

Court in the case of Sri Prabhu Shankar S/o.

Muniyappa vs. State of Karnataka and others in

Crl.P.No.2470/2020 and connected matters and in the

case of P. Manjunath vs. State by Lokayuktha in

W.P.No.10027/2022 dated 16.11.2022 where the Co-

ordinate Benches have quashed the FIR and criminal

proceedings. That apart, when the accused demanded any

bribe, it is punishable under Section 7(a) of the P.C. Act

and as per proviso to the Section 8 of the P.C. Act, if

there is any demand, it shall be brought to the notice of

the Police or Authority within seven days. Here in this

case, the alleged demand was in December 2019 and also

August 2020, but the complaint was filed only on

07.01.2021 beyond the statutory period of seven days as

per the proviso to Section 8 of the P.C. Act. By considering

the judgment of the Hon'ble Supreme Court, the Co-

ordinate Bench in the case of P. Manjunath vs. State as

held at paragraph Nos.13 and 14 which are as under:

"13. If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court, what would unmistakably emerge is that, there is neither demand nor acceptance in the case at hand. The demand should be for any work to be performed and acceptance should be towards the said work. The documents produced along with the petition are so unimpeachable that they would clearly demonstrate that the work that came before the petitioner on 24-02-2022 was performed and the document was released on the same day itself. If the complainant had complained that the petitioner had demanded money for release of document that would have been a circumstance altogether different.

The complaint is made after *07 days of release of the document when no work was pending with the petitioner, the final trap is laid after two months of registration of the document and the petitioner is not even caught accepting any illegal gratification for him to

have demanded so, two months ago. Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap is a failure.

14. The contention of the learned counsel representing the 1st respondent-

ACB/Lokayukta is neither here nor there as he is unable to wriggle out of the fact that the work had already been done and the alleged demand was projected after *07 days of the work and trap was laid after two months of the work completion. Reliance being placed on certain audio conversation between the petitioner and the complainant cannot even be pressed in his defence in view of unequivocal facts narrated hereinabove. Therefore, if further proceedings are permitted to continue against the petitioner, it would become an abuse of the process of law, result in miscarriage of justice, degenerate into harassment of public servant and would run

foul of the judgment rendered by the Apex Court in the case of STATE OF HARYANA v.

BHAJAN     LAL,      wherein        the        Apex     Court
holds as follows:-


      "102.     In   the      backdrop         of     the

interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae

and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3)    Where      the      uncontroverted
allegations    made       in   the   FIR   or

complaint and the evidence collected

in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer 4 1992 Supp (1) SCC 335 without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.


(6) Where there is an express legal
bar     engrafted           in       any       of    the
provisions        of       the       Code      or    the





      concerned       Act    (under       which      a

criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

(Emphasis supplied)

The Apex Court has laid down postulates of circumstances in which an FIR can be quashed. Two postulates are applicable to the case at hand. One being the first postulate, that even if the complaint is taken on its face value, prima facie would not make out a case against the petitioner. The other being inherent

improbability shrouded with the complaint. Therefore, following the judgment of the Apex Court in the case of BHAJAN LAL (supra) and the unequivocal fact that there is neither demand nor acceptance as laid down by the Apex Court in the aforesaid judgment, I deem it appropriate to obliterate the crime registered against the petitioner in Crime No.3 of 2022 for offences punishable under Section 7(a) of the Act."

9. The Hon'ble Supreme Court in the case of

K.Shantamma vs. State of Telangana reported in 2022

3 Supreme 127 at paragraph No.15 has held that the

demand and acceptance are sine qua non for establishing

the offence under Section 7 of the P.C. Act and if it is not

found, the accused cannot be tried or convicted.

10. It is well settled by the Hon'ble Supreme Court

in the recent judgment as the demand and acceptance is a

sine qua non for the Prevention of Corruption Act. Here in

this case, there is no demand, acceptance of bribe and

there is no work pending with the petitioner as on the date

of filing the complaint. Apart from that, there was