Karnataka High Court
Vidyanand Gurubasayya Vastrad S/O ... vs State Of Karnataka And Ors on 1 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.P No. 200655 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO.200655 OF 2023 (482)
BETWEEN:
SRI VIDYANAND GURUBASAYYA VASTRAD
S/O GURUBASAYYA VASTRAD
AGED ABOUT 60 YEARS,
RETD. ASSISTANT EXECUTIVE ENGINEER,
R/O VIRAJ, NO. 12, SAJJAN LAYOUT,
BACKSIDE OF PATIL PLANET,
SOLAPUR ROAD,
VIJAYAPURA-586103.
...PETITIONER
Digitally signed
by SHILPA R (BY SRI AVINASH A. UPLAONKAR, ADVOCATE FOR
TENIHALLI
SRI I.R. BIRADAR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS,
POLICE INSPECTOR,
ANTI-CORRUPTION POLICE STATION,
VIJAYAPURA, PRESENTLY,
LOKAYUKTA POLICE STATION,
VIJAYAPURA-562135.
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CRL.P No. 200655 of 2023
2. SRI AJITH KUMAR
S/O JINEDRA CHOUGALE
AGED ABOUT 45 YEARS,
ASSISTANT ENGINEER,
KARNATAKA URBAN WATER SUPPLY AND
DRAINAGE BOARD, SUB-DIVISION,
CHIKKODI-591201.
...RESPONDENTS
(BY SRI GOURISH S. KHASHAMPUR, ADDL. SPP/LOKAYUKTA
FOR R1; R2 SERVED)
THIS CRL.P. IS FILED U/S.482 OF CR.P.C. PRAYING TO
CALL FOR RECORDS IN SPL. C. NO.16 OF 2021 PENDING ON
THE FILE OF LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, VIJAYAPURA. QUASH THE ORDER PASSED BY THE
LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE,
VIJAYAPURA IN SPL. C.NO.16 OF 2021 (CRIME NO.14 OF 2019)
DT.23.9.2021 AND ALSO CHARGE SHEET FILED IN
SPL.C.NO.16 OF 2021 FOR OFFENCES UNDER SECTION 7(A) OF
THE PREVENTION OF CORRUPTION ACT, 1988, VIDE
ANNEXURES - A AND D AND TO ALLOW THIS PETITION.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under
Section 482 of Cr.P.C. for quashing the proceedings in
Special Case No.16/2021, pending on the file of the
learned Principal District and Sessions Judge, Vijayapur
registered for the offence punishable under Section 7(a) of
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the Prevention of Corruption Act, 1988 (for short 'the PC
Act').
2. As per the case of the prosecution, respondent
No.2 - complainant was transferred from Vijayapur to
Chikkodi and when the complainant has requested the
petitioner/accused to send his service register to Chikkodi,
he said to have demanded Rs.2,00,000/- as bribe. Then
the complainant has lodged a complaint and a trap was
laid down. The trap was successful and the petitioner
herein, who was the accused, was apprehended and
tainted amount of Rs.2,00,000/- was recovered from his
custody. On the basis of these allegations, a trap mahazar
was drawn and then, after completing the investigation,
the Anti Corruption Bureau, Vijayapur has filed charge-
sheet against the accused/petitioner herein for the offence
punishable under Section 7(a) of the PC Act.
3. Meanwhile, the petitioner has filed this petition
for quashing the proceedings. This petition is filed on
20.04.2023 and the records disclose that on 23.11.2021
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itself, charge was framed against the petitioner/accused
and he has pleaded not guilty. A trap was said to have
taken place on 23.10.2019 and the petitioner had
knowledge of the proceedings as he was trapped and
tainted amount was recovered from his custody by
drawing a trap mahazar. Subsequently, the charge-sheet
came to be filed and two years later on, the charge was
framed and the petitioner has pleaded not guilty.
However, he did not file any application for discharge.
4. In the meanwhile, the departmental enquiry
was initiated against the petitioner by the Karnataka
Urban Water Supply and Sewerage Board, Jalabhavan,
Bannerghatta Road, Bengaluru, wherein an enquiry was
held by a retired District Judge. The District Judge by his
order dated 31.01.2022 submitted a report that the
charge and the statement of imputations framed against
the delinquent officer/accused are not proved.
5. In view of exoneration of the petitioner/accused
in the departmental enquiry, he has approached this Court
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for quashing the proceedings only on the ground that since
he has been exonerated in departmental enquiry, the
proceedings now cannot continue as against him.
6. The learned counsel appearing for the
Lokayukta-State would seriously oppose the petition
contending that they were not parties before the
departmental enquiry and no notice was served on them.
It is also contended that the departmental enquiry is
conducted behind the respondent and on perusal of the
order of the departmental enquiry, it is evident that it is in
violation of the Supreme Court mandate. Hence, he would
seek for rejection of the petition.
7. The learned counsel for the petitioner has
simply placed reliance on fact that since the petitioner has
exonerated in the departmental enquiry, continuation of
the criminal prosecution is not permissible and in support
of his arguments, he placed reliance on decisions of the
Apex Court in AIR Online 2020 SC 809 (Ashoo
Surendranath Tewari Vs. Deputy Superintendent of
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Police EOW, CBI AND ANR.), 2023 Cr.R. 358 (Kant.)
(Siddanath and Others Vs. State of Karnataka and
Another) and the judgment of Co-ordinate Bench of this
Court in Criminal Petition No.100982/2022 (Shivappa
Mallappa Akalawadi Vs. State of Karnataka), wherein
it is observed that if the delinquent official is exonerated in
departmental enquiry, continuation of the criminal
proceedings is not permissible. The Hon'ble Apex Court in
AIR Online 2020 SC 809 has observed that since the
accused has exonerated by CVC in departmental
proceedings, chances of his conviction in a criminal trial
involving the same facts appears to be bleak and
discharged him. But at the out set in the instant case, it is
not a case of discharge and the petitioner is seeking
quashment of the proceedings. Further that case was
pertaining to fraud and that was not proved in the
departmental enquiry.
8. However, the present case is regarding demand
and acceptance of bribe. The evidence on record disclose
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that tainted bribe amount of Rs.2,00,000/- was recovered
from the petitioner/delinquent officer by drawing a trap
mahazar. The enquiry officer on a presumption that
though the amount was recovered, the prosecution has
failed to prove the demand and acceptance. However, it is
relevant to note here that the departmental enquiry was
held in the department itself and the Lokayukta was not a
party who is prosecuting this case. Notice was also not
issued to the Lokayukta in the said departmental enquiry
and they were not heard.
9. It is the main contention of the enquiry officer
that the demand and acceptance is not proved and mere
recovery does not amount to offence under Section 7(a) of
PC Act. The Hon'ble Apex Court in constitution Bench in
2022 LiveLaw (SC) 1029 (Neeraj Dutta vs. State
(Govt. of N.C.T. Delhi) has clearly held that once the
amount is said to have been recovered, which is not a
legal remuneration, then the presumption under Section
20 of the PC (Old Act) Act is mandatory and the accused is
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required to prove his defence plausible explanation.
Hence, as per the mandate of the Supreme Court, once
the tainted amount is recovered, the burden shifts on the
accused to answer how he came in possession of the
tainted amount. But no such defence is forthcoming and
this aspect was lost sight by the enquiry officer and
enquiry officer did not discuss this aspect and said citation
was not placed before the enquiry officer and even the
Lokayukta was not a party in the enquiry proceedings.
Hence, mere exoneration of the petitioner in departmental
enquiry will not give him a right to seek quashment of the
proceedings looking to the law laid down by the Apex
Court. The same principle is reiterated by the Apex Court
in the decision of AIR 2001 SC 318 (N. Narsinga Rao
Vs. State of Andhra Pradesh) and the decision of Apex
Court in AIR 1964 SC 575 (Dhanvantrai Balwantrai
Desai Vs. State of Maharashtra). Hence, it is evident
that the enquiry officer did not consider any of these
relevant aspects while dealing with enquiry and he has
exonerated the accused. Apart from that, the Lokayukta
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was not a party in departmental enquiry and as such, the
said departmental enquiry is not binding on the
respondent. Further, the petitioner after framing the
charges, 1 ½ years later on filed this petition that too
without seeking discharge. He wanted to take advantage
of the finding of the departmental enquiry, but the same
cannot be permitted and the citations relied by the learned
counsel for the petitioner cannot be made applicable to the
facts and circumstances of the case in hand in view of the
Constitution Bench decision referred above. As such, the
question of quashment does not arise at all and since the
petitioner has already pleaded not guilty, he is required to
undergo trial and he can prove his defence during the
course of trial. Hence, the petition being devoid of any
merits, doest not survive for consideration. Accordingly, it
stands dismissed.
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In view of disposal of the petition, I.A.No.1/2023
filed for stay does not survive for consideration and
accordingly stands disposed of.
Sd/-
JUDGE
RSP
