State Of Karnataka vs Sri Ramaswamy
2023 Latest Caselaw 7088 Kant

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                                      CRL.RP No. 415 of 2021


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 09TH DAY OF OCTOBER, 2023
                           BEFORE
          THE HON'BLE MR. JUSTICE S RACHAIAH
      CRIMINAL REVISION PETITION NO. 415 OF 2021
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY POLICE INSPECTOR
KARNATAKA LOKAYUKTA
CITY DIVISION, BANGALORE - 560 001.

                                                  ...PETITIONER
(BY SRI. ASHWIN S HALADY, SPL. PP)

AND:
1. SRI. RAMASWAMY
   S/O. SRI. CHIKKA VENKATEGOWDA
   AGED ABOUT 60 YEARS
   COMMISSIONER
   CITY MUNICIPAL CORPORATION
   K.R.PURAM, BENGALURU
   RESIDING AT NO.36, 13TH CROSS
   M.T.LAYOUT, 1ST CROSS
   MALLESHWARAM
   BENGALURU - 560 003.

2.    SMT. LALITHAMMA
      W/O. RANGAIAH
      AGED ABOUT 78 YEARS
      RESIDING AT NO.1816
      TELAGARA BEEDI
      SALIGAME, HASSAN - 573 201.

                                             ...RESPONDENTS
(BY SRI. SANDESH J CHOUTA, SR. COUNSEL A/W
    SRI. ABISHEK MARLA M J ADVOCATES FOR R1 AND 2)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401 CR.P.C
PRAYING TO SETTING ASIDE THE ORDER DATED 27.04.2019
PASSED BY THE HON'BLE LXXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE(P.C.A.) AT BANGALORE IN
SPECIAL C.C.NO.22/2009 AND ETC.,
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                                            CRL.RP No. 415 of 2021


     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 05.09.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:


                                 ORDER

1. This Criminal Revision Petition is filed by the State -

Lokayukta being aggrieved by the order of discharge dated

27.04.2019 in Spl.CC No.22/2009 on the file of the LXXVIII

Additional City Civil and Sessions Judge and Special Judge

(P.C.A), Bengaluru, (CCH.NO.79) wherein the Trial Court

discharged the respondents for the offences under Sections

13(1)(e) r/w 13(2) of the Prevention of Corruption Act (for

short 'P.C Act') r/w Section 109 of Indian Penal Code (for short

'IPC').

Brief facts of the case are as under:

2. It is the case of the prosecution that the respondent

No.1 had joined services of the State Government on

27.12.1982. The accused Nos.2 and 3 were working as

Government officials and retired from their respective services

and they are income tax assessees. It is further stated in the

complaint that the respondent No.1 being the Commissioner of

City Municipal Council, K.R.Puram, Bengaluru has amassed the

disproportionate assets, which is against to his known source of

CRL.RP No. 415 of 2021

income. A raid was conducted on 20.11.2002 and they found

that the total income of respondent No.1 was

Rs.3,15,53,875.74 and the expenditure was Rs.2,77,08,609.44.

It is further stated that the appellant - Lokayukta police found

that the respondent No.1 had excess assets worth of

Rs.1,15,88,601.23 which comes around 36.72% excess to his

known source of income. Following the complaint, case came to

be registered against all the three accused for the offences

punishable under Section 13(1)(e) r/w 13(2) of P.C Act and

Section 109 of IPC. After conducting investigation, the

Lokayukta Police submitted the charge sheet.

3. Being aggrieved by filing of the charge sheet by

the Lokayukta Police, an application was filed under Section

239 of the Criminal Procedure Code (for short 'Cr.P.C') r/w

Section 19 of P.C Act, by all the three accused persons,

however, during the pendency of the said application,

Sri.H.K.Rangaiah-accused No.3 reported as dead. The

application for discharge filed as against accused Nos.1 and 2

was allowed by the Trial Court. Being aggrieved by the same,

the State preferred this revision petition.

4. Heard Shri Ashwin S.Halady, learned Special Public

Prosecutor for Lokayukta and Sri.Sandesh J.Chouta, learned

CRL.RP No. 415 of 2021

Senior Counsel along with Sri.Abishek Marla M.J., learned

counsel for the respondent Nos.1 and 2.

5. It is the submission of the learned Special Public

Prosecutor (for short "Spl.PP") for the appellant that the order

of the Trial Court in allowing the discharge application appears

to be erroneous and improper. Hence, the said order is liable

to be set aside.

6. It is further submitted that at the time of the

considering the discharge application, the Court need not

conduct mini trial, instead, the Court is required to evaluate the

material and the documents on record with a view to find out if

the facts emerging there from, taken at the face value,

discloses the existence of all the ingredients constituting the

alleged offence. At the stage of considering the discharge

application, even strong suspicion founded on material which

leads the Court to form a presumptive opinion as to the

existence of the factual ingredients constituting the offence

alleged would justify the framing of charge against the accused.

7. It is further submitted that the respondent No.1

during check period i.e., from 01.04.1988 to 26.03.2002 has

amassed the disproportionate assets worth of

CRL.RP No. 415 of 2021

Rs.1,15,88,601.23/- which comes around 36.72% excess

income which the respondent No.1 had not answered during

the investigation. Therefore, the Lokayukta police have rightly

filed the charge sheet.

8. It is further submitted that the Lokayukta Police

conducted search and seizure and seized certain documents,

cash and bank accounts pertaining to respondent No.1 and also

the immovable properties of respondent Nos.2 and 3.

Voluminous documents have been produced along with the

charge sheet. The authenticity of the said documents has to be

verified and analysed through proper trial. Unless, the said

documents have been passed through the trial, it cannot be

said that the documents have been proved and the respondent

No.1 has not committed any offence. The Trial Court

committed an error in arriving at a conclusion that the

respondent Nos.1 and 2 have not amassed the disproportionate

assets as stated in the charge sheet and discharged them from

the offences which is liable to be set aside. Making such

submission, the learned Spl.PP prays to allow the petition.

9. Per contra, the learned Senior counsel for the

respondent Nos.1 and 2 vehemently justified the order of

acquittal passed by the Trial Court and submitted that the

CRL.RP No. 415 of 2021

legitimate income of the respondents has not been considered

by the Investigating Officer. The check period has wrongly

been interpreted and also the date of joining the service of

respondent No.1 was not considered properly by the

Investigating Officer. Consequently, the impugned charge

sheet is filed which is required to be set aside.

10. It is further submitted that the respondent Nos.2

and 3 were retired Government officials and they are the

income tax assessees. Their individual income should have

been considered by the Investigating Officer at the time of

conducting the investigation.

11. It is further submitted that, the check period had

been considered properly, the amassed disproportionate assets

would not have been arisen. Even though the check period

stated to have taken for the period of 01.04.1988 to

26.03.2002, the said check period has no basis.

12. It is further submitted that the raid was conducted

on 20.11.2002, the check period should have been mentioned

till conducting raid. Fixing the check period till 26.03.2002 and

conducting the raid on 20.11.2002 which is contrary to the law.

CRL.RP No. 415 of 2021

13. It is further submitted that the Trial Court cannot

act as a Post Office between the investigating agency and the

accused. The Court has to see the documents and its

genuineness while framing the charge. If the charge sheet

materials disclose prima facie case, then the Court has to frame

the charge, otherwise, the Court has to discharge the accused

without calling them to face the trial. It is further contended

that the Trial Court after appreciating the documents on record,

opined that the charge sheet materials do not disclose the

prima facie case and discharged the respondents which

requires no interference. Making such submissions, the learned

Senior Counsel justified the order of discharge passed by the

Trial Court against respondent Nos.1 and 2 and prays to

dismiss the petition.

14. Having heard the learned counsel for the respective

parties, before adverting to the facts of the case, it is relevant

to refer to the judgment of the Hon'ble Supreme Court for

better understanding the procedure in dealing with application

for discharge. Now it is relevant to refer to the judgment of the

Hon'ble Supreme Court in the case of STATE OF TAMIL NADU

CRL.RP No. 415 of 2021

v. N.SURESH RAJAN AND OTHERS1 wherein paragraph

No.28 which reads thus:

"28. Yet another decision on which reliance has been placed is the decision of this Court in Dilawar Balu Kurane v. State of Maharashtra, reference has been made to the following paragraph of the said judgment : (SCC p. 140, para 12) "12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect

(2014) 11 SCC 709

CRL.RP No. 415 of 2021

of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial...."

15. In another case STATE OF T.N v.

SOUNDIRARASU2 wherein the Hon'ble Supreme Court para

62, 69 and 75 reads thus:

"62. Section 239CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word "groundless", in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word "groundless" used in Section 239CrPC means that the materials placed before the court do not make out or are not sufficient to make out a prima facie case against the accused.

69. The suspicion referred to by this Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words "a very strong suspicion" used by this Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the offence alleged.

(2023) 6 SCC 768

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CRL.RP No. 415 of 2021

75. The ambit and scope of exercise of power under Sections 239 and 240CrPC, are therefore fairly well-settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The section mandates that the Magistrate shall discharge the accused recording reasons, if after : (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless i.e. either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage -- the only consideration at the stage of Sections 239/240 is as to whether the allegation/charge is groundless.

16. On careful reading of the dictum of the Hon'ble

Supreme Court, the ambit and scope of the power exercised

under Section 239 of the Code of Criminal Procedure (for short

'Cr.P.C.') is well settled and the Magistrate after considering the

charge sheet materials filed against the accused to be

groundless, he may discharge the accused after recording the

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CRL.RP No. 415 of 2021

reasons. Further, it is added that at the time of framing

charge, the Court need not conduct mini trial.

17. Now coming to the present case, the accused No.1

admittedly joined the State Government service on 27.12.1982,

he was working in various sectors and capacities, ultimately he

was working as the Commissioner City Municipal Corporation,

K.R.Puram when the raid was conducted. As per the averments

of the charge sheet, certain documents both movable and

immovable assets have been collected by the Investigating

Officer. As per the charge sheet material, the respondent No.1

purchased the property in the name of respondent Nos.2 and 3

and the respondent Nos.2 and 3 assisted respondent No.1 in

securing the amassed wealth.

18. The charge sheet material discloses that the

respondents have amassed wealth in terms of percentage i.e.

36.72% which is excess to the known source of the income of

the respondent No.1. The check period was fixed by the

Investigating Officer for the period of 01.04.1988 to

26.03.2002. As per the averments of the charge sheet, the

complaint was lodged on 19.11.2002 and the raid was

conducted on 20.11.2002.

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CRL.RP No. 415 of 2021

19. The contention of the learned Senior Counsel is that

the check period needs to be considered till filing of the

complaint and registration of FIR. However, the check period in

the present case had been considered arbitrarily and registered

the case against the petitioners which is liable to be set aside.

Considering the said submission, now it is appropriate to have a

cursory look upon Section 13(1) of the PC Act, which reads

thus:

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

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1. A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

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CRL.RP No. 415 of 2021

Explanation 2. The expression "known sources of income" means income received from any lawful sources.] On careful reading of the above said provision, it appears that

the check period means the period in which a public servant

held public office. Admittedly, the respondent No.1 joined the

service of the State Government on 27.12.1982. However, the

check period had been considered by the Investigating Officer

from 01.04.1988 to 26.03.2002 which appears to be arbitrary

and contrary to the provisions of law.

20. It is needless to say that respondent Nos.2 and 3

were Government officials and both have retired from their

respective offices and they are income tax assessees. The

accused No.2 who is respondent No.2 in this case, had availed

a loan of Rs.75.00 lakhs to purchase Sterling Talkies at Mysuru

on 24.06.2002 from Karnataka Bank, Hassan Branch. There is

a reference to the expenditure of Rs.3,05,098/- towards

payment of interest and also payment of principal amount.

Similarly, accused No.3 Sri.H.K.Rangaiah purchased the

property at Malleshwaram and sold the said property on

15.11.2002 for a sum of Rs.48.00 lakhs. These two

transactions should have been excluded and construed as

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CRL.RP No. 415 of 2021

independent income of accused Nos.2 and 3 generated from

the known source of income. Having failed to take note of the

same, resulted in culminating the charge sheet, which is illegal

and arbitrary. Even assuming that the respondent No.1 had

disproportionate assets which is unknown to his source of

income, and if the said disproportionate assets are within the

marginal ratio of 10%, it can be excluded. To fortify my view,

now, it is relevant to refer to the judgment of the Hon'ble

Supreme Court in the case of KRISHNANANDA v. STATE OF

MADHYA PRADESH 3 wherein paragraph No.33 read thus:

"33. It will, therefore, be seen that as against an aggregate surplus income of Rs. 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rs. 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small - it is less than ten per cent of the total income of Rs. 1,27,715.43 - we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under Sub-section (3) of Section 5. We are of the view that, on the facts of the present case, the High Court as well as the Special Judge were in error in raising

(1997) 1 SC 816

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CRL.RP No. 415 of 2021

the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption."

21. The Trial Court after appreciating the oral and

documentary evidence on record opined that the Investigating

Officer fixed the check period arbitrarily without considering the

provisions of law and discharged the respondent Nos.1 and 2

which appears to be appropriate and relevant and there is no

occasion for this Court to interfere with the said findings.

22. In the light of the observation made above, I

proceed to pass the following:

ORDER

i) The Criminal Revision Petition is dismissed.

ii) The order of discharge dated 27.04.2019 passed in

Spl.CC No.22/2009 by the Court of LXXVIII Additional

City Civil and Sessions Judge and Special Judge

(P.C.A), Bengaluru, (CCH.NO.79) stands affirmed.

Sd/-

JUDGE

UN