Karnataka High Court

Sri N C Shivakumar vs State Of Karnataka on 29 February, 2024

Author: K.Natarajan

Bench: K.Natarajan

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 29TH DAY OF FEBRUARY, 2024

                        BEFORE

       THE HON'BLE MR. JUSTICE K.NATARAJAN

        CRIMINAL PETITION NO.4380 OF 2022

                  CONNECTED WITH

        CRIMINAL PETITION NO.5401 OF 2022


IN CRIMINAL PETITION NO. 4380 OF 2022

BETWEEN:

     SRI. N C SHIVAKUMAR
     BIN LATE CHANDAIAH,
     AGED ABOUT 50 YEARS,
     ASSISTANT DIRECTOR,
     C.U.D.A., CHIKMAGALUR - 577 101.

                                        ...PETITIONER

(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
    SRI. HARISH KUMAR M.C., ADVOCATE)

AND:

1.    STATE OF KARNATAKA
      BY LOKAYUKTHA, CHIKAMAGALURU PS,
      REPRESENTED BY:
      SPECIAL PUBLIC PROSECUTOR LOKAYUKTHA,
      HIGH COURT OF KARNATAKA,
      BANGALORE - 560 001.
                             2




2.    G. GOPINATH
      S/O LATE GOVINDARAJU,
      AGED ABOUT 45 YEARS,
      NEAR AMBEDKAR BHAVAN,
      3RD CROSS,
      KEMPANAHALLI,
      CHIKAMAGALUR,
      N/O THULASI NILAYA,
      NEAR JYOTHI CIRCLE,
      MARKET ROAD,
      CHIKMAGALUR - 577 101.

                                      ...RESPONDENTS

(BY SRI. B B PATIL, ADVOCATE FOR R1/LOKAYUKTHA;
    SRI. B S SACHIN, ADVOCATE FOR R2)


       THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS IN
CR.NO.4/2022 ARISING OUT OF FIR IN CR.NO.4/2022 OF
ACB P.S., CHIKKAMAGALURU PENDING ON THE FILE OF THE
COURT OF PRL. DISTRICT AND SESSIONS JUDGE, SPL.
COURT, CHIKKAMAGALURU FOR THE OFFENCE P/U/S 7(a)
OF P.C ACT (AMENDMENT ACT-2018) AND SEC.7(A) OF P.C
ACT, IN SO FAR AS THE PETITIONER IS CONCERNED.


IN CRIMINAL PETITION NO. 5401 OF 2022

BETWEEN:

     SRI. M.G.RAMESH
     S/O LATE GINDIGOWDA,
     AGED ABOUT 55 YEARS,
                            3




     R/O BYPASS ROAD,
     GAVENAHALLI,
     HASSAN - 573 201.
                                         ...PETITIONER
(BY SMT. REKHA K R., ADVOCATE)

AND:

1.    STATE OF KARNATAKA
      BY LOKAYUKTHA, CHIKAMAGALURU PS,
      REPRESENTED BY:
      SPECIAL PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      BANGALORE - 560 001.

2.    G. GOPINATH
      S/O LATE GOVINDARAJU,
      AGED ABOUT 45 YEARS,
      R/AT TULASI NILAYA,
      NEAR JYOTHI CIRCLE,
      MARKET ROAD,
      CHIKMAGALUR - 577 101.

                                      ...RESPONDENTS

(BY SRI. B B PATIL, ADVOCATE FOR R1/LOKAYUKTHA;
    SRI. B S SACHIN, ADVOCATE FOR R2)

       THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASHING THE PROCEEDINGS
IN CR.NO.4/2022 ON THE FILE OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR TRIAL OF
CASES RELATING TO PREVENTING OF CORRUPTION ACT,
CHIKKAMAGALURU SO FAR AS PETITIONER IS CONCERNED
WHEREIN RESPONDENT POLICE HAVE FILED FIR AGAINST
                              4




THE PETITIONER AND OTHER FOR OFFENCE P/U/S.7(A) OF
PREVENTION OF CORRUPTION ACT 1988.

      THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 13.02.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:


                             ORDER

Crl.P.No.4380/2022 is filed by the petitioner-

accused No.1 and Crl.P.No.5401/2022 filed by the

petitioner-accused No.2 under Section 482 of Cr.P.C.

for quashing the FIR in Crime No.4/2022 registered by

the then ACB, now pending investigation with

Lokayuktha Police, Chikkamagaluru for the offence

punishable under Section 7(a) of Prevention of

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

2. Heard Sri Ashok Haranahalli, learned Senior

counsel appearing for the petitioner in

Crl.P.No.4380/2022, learned counsel for the petitioner

in Crl.P.No.5401/2022, Sri B.B. Patil, learned Special

counsel for respondent-Lokayuktha and Sri B.S.Sachin,

learned counsel for respondent No.2.

3. The case of the prosecution is that

complainant one Gopinath filed complaint before the

Lokayuktha Police on 4.4.2022 alleging that the

petitioner-accused No.1 is the Assistant Director of

Chikkamagalur Urban Development Authority

(hereinafter referred to as 'CUDA') and accused No.2-

Ramesh being a broker have demanded Rs.8,50,000/-

as bribe for releasing 40% sites for the purpose of

selling and the complainant is not willing to pay the

bribe amount, hence he lodged complaint to the

Lokayuktha Police. After registering the FIR, the police

set up the trap. Accordingly, on 8.4.2022, the police

team went near the office of accused No.1, he was not

available. Therefore, a complainant telephoned to

accused No.2 when he came at 5.30 p.m., the amount

was paid to accused No.2 who received it and the police

trapped him and in the voluntary statement, the

accused No.2 has stated that he received money on

behalf of accused No.1. Therefore, the police took up

the investigation against both the accused.

Subsequently, accused No.1 also arrested and he has

stated that he has not contacted the complainant and

there is no discussion. The complainant required to

deposit the money in the Authority and after the

verification, the order will be passed and he has not

received any money from the complainant.

4. Being aggrieved with the investigation, both

the petitioners-accused Nos.1 and 2 are before this

Court.

5. The learned Senior counsel Sri. Ashok

Haranahalli appearing for accused No.1 has contended

that there is no specific allegation against accused No.1

for demand of any bribe and acceptance of bribe. He

never discussed with the complainant at any point of

time. The police prepared the trap on 7.4.2022 and it

was failed. On 8.4.2022, accused No.2 was trapped.

There is no work or file pending with the accused No.1.

Accused No.2 misused the name of accused No.1. The

learned Senior counsel has contended that when there

is no demand, acceptance and work pending with the

petitioner, the question of conducting the investigation

does not arise. Therefore, as per the judgment of the

Hon'ble Supreme Court in the case of Neeraj Dutta

vs. State (GOVT. OF N.C.T. OF DELHI) reported in

2022 SCC OnLine SC 1724 at paragraph No.68, it has

stated that when there is no demand and acceptance,

the offence under Section 7 of P.C. Act cannot be

constituted. The learned counsel also relied upon the

judgment of this Court in the case of N. Thejas Kumar

vs. State and Another in W.P.No.915/2022 (GM-

RES) dated 21.03.2022.

6. Learned Senior counsel also contended that

the accused No.1 is not the Authority to grant or

release the sites. The planning Authority required to

release the sites. The draft relinquish deed cannot be a

deed. The complainant shall obtain certificate from

PWD, BESCOM and other departments, thereafter the

sites are required to be released. Such being the case,

the question of demand by accused No.1 does not

arise.

7. Learned counsel appearing for accused No.2

has contended that Section 7 of the P.C. Act is not

applicable to accused No.2. He is not a public servant.

He has been falsely implicated. The complainant given

money to accused No.2, but he has no knowledge for

what purpose the amount was given. It was trapped by

the Police. Hence, prayed for quashing the FIR.

8. Learned counsel appearing for respondent-

Lokayuktha has contended that accused No.1 is the

Authority. Accused No.2 is the middleman, he received

money on behalf of accused No.1. Accused No.2 has

given voluntary statement that on instruction of

accused No.1, he received the money. The charge

sheet is ready, except FSL report. Therefore, prayed for

dismissing the petition.

9. Having heard the arguments and on perusal

of the records, which reveals, as per the complaint by

the respondent No.2, accused No.1 is the Assistant

Director of CUDA. An application was filed long back for

releasing 40% of the sites by the Authority but he has

not responded from 2021 onwards. Therefore, the

complainant met accused No.2 and told for getting the

permission and for that, accused No.2 who said to be a

middleman demanded Rs.8,50,000/- from the

complainant. Accordingly, a complaint was filed on

4.4.2022. A trap was set up on 7.4.2022 which was

failed and subsequently on 8.4.2022, accused No.2

while receiving the amount has been trapped by the

Police.

10. Learned counsel for the respondent submits

that there is a telephonic conversation between the

complainant and accused Nos.1 and 2. The telephonic

conversation has been converted into C.D. and voice

samples also taken by the Investigating Officer, sent to

the FSL but report not received. Though the learned

counsel for the respondent produced a sealed cover and

submitted, the investigation was completed and charge

sheet is ready and waiting for the sanction from the

Government.

11. I have perused the records submitted by the

learned counsel for Lokayuktha, which reveals, the

police have collected some Notifications of the

Government regarding Town Planning Authority for

following the procedures to release the sites from the

Layout. But there is a condition that before releasing

the sites, the developer shall obtain certificate from the

Electricity Authority, Water Supply and Drainage Board,

Pollution Control Board and other local Authorities etc.,

before releasing the sites which clearly reveals the

respondent No.2 not obtained any such certificates for

releasing the sites by the Authority. That apart, there is

no document collected by the Investigating Officer that

the petitioner was the Authority for releasing or

granting permission for releasing the sites. It is the

Down Planning Authority who shall accord permission

and the petitioner is only an Assistant Director of CUDA

and he has no authority to grant such permission.

12. On perusal of the pre trap panchanama and

telephonic conversation, alleged to have been recorded

by the complainant, where there is no demand by

accused No.1 and he has also not given any instruction

or stated any amount to be payable to him and it has to

be given to accused No.2 on his behalf. The

conversation is very vague. The voice reveals, he told

to the Ramesh-accused No.2 and he will take care of it.

Therefore, it cannot be said that the petitioner

demanded any bribe.

13. Apart from that, it is pertinent to note,

accused No.1 met the complainant along with accused

No.2 at any point of time in his office. Only accused

No.2 who called the complainant and told accused No.1

is on the line, but there is no record to show that

accused No.1 contacted the complainant in the

telephone and he himself had conversation with the

complainant.

14. There is no demand and acceptance of bribe

by the accused No.1. It is an admitted fact that

accused No.2 received the money and told that he has

received on behalf of accused No.1 and also says he

has no connection with accused No.1. The voluntary

statement of accused No.2 is not admissible. There is

no file or work pending with accused No.1 in order to

accord permission to the complainant for releasing of

any sites. It is not the case of the complainant that he

has obtained all the certificate of clearance from

various Authorities like Water Supply Underground

Drainage Board, Electrical works from HESCOM, road

works from Urban local bodies, Panchayat Raj

engineering Department etc. Such being the case, the

question of releasing or granting permission by the

Town Planning Authority does not arise. Even

otherwise, the petitioner-accused No.1 is not an

authority to accord any such sanction.

15. If at all, accused No.2 contacted the

complainant and he has demanded any money in the

name of accused No.1, accused No.1 cannot be made

responsible for that and accused No.1 cannot be

implicated merely on the voluntary statement.

16. It is also seen from the investigation papers

that the Police have conducted raid in the house of

accused No.1. They have collected some golden

ornaments, silver ornaments under the panchanama by

obtaining the search warrant, that is altogether

different from the case on hand and that has to be

investigated by the Police separately by initiating

proceedings against him under Section 13 of the P.C.

Act. The same cannot be considered in this case.

17. Learned Senior counsel for the petitioner has

relied upon the judgment of the Hon'ble Supreme Court

in the case of Neeraj Dutta stated supra, wherein the

Hon'ble Supreme Court has held that the demand and

acceptance are sine qua non for establishing the

offence punishable under Section 7 of the P.C. Act and

subsequently, the Division Bench of Hon'ble Supreme

Court has also taken similar view holding that the

demand and acceptance is sine qua non for establishing

Section 7 of the P.C. Act.

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

Neeraj Dutta stated supra has held that the demand

and acceptance are sine qua non for proving the case

punishable under Section 7 of the P.C. Act. The Hon'ble

Supreme Court has held at paragraph No.3 that proof

of demand is sine qua non for the offence to be

established under Section 7(13)(1)(d)(ii) of the Act and

dehors the proof of demand, the offence under two

Sections cannot be brought home. Mere acceptance of

any amount allegedly by way of illegal gratification of

recovery there of in the absence of proof of demand

could not be sufficient to bring home the charge under

Section 7, (13)(i)(ii) of the Act. After the judgment of

the Constitution Bench of the Hon'ble Supreme Court,

once again the Division Bench of the Hon'ble Supreme

Court in the subsequent judgment in the case of

Neeraj Dutta stated supra has considered the legal

position at paragraph No.8 of the judgment and finally

at paragraph No.10 has held that:

"The demand for gratification and the acceptance there of are sine qua non offence punishable under Section 7 of P.C. Act"

19. Based upon the above said judgment of the

Hon'ble Supreme Court, in the another judgment by the

same Bench in the case of Soundarajan vs. State in

Crl.A.No.1592/2022, the Hon'ble Supreme Court has

taken the similar view at paragraph No.9 of the

judgment which is as under:

"9. We have considered the submissions. It is well settled that for establishing the

commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof."

20. This Court also taken similar view in various

cases that demand and acceptance is sine qua non for

constituting the offence under Section 7 of the P.C. Act.

Here in this case, the petitioner neither demanded any

bribe from the complainant nor accepted any bribe and

there is no nexus between the acceptance of money by

accused No.2. Therefore, investigating the case against

accused No.1 does not arises which amounts to abuse

of process of law as held by the Hon'ble Supreme Court

in the case of State of Haryana and Others vs.

Bhajanlal and Others reported in 1992 SCC (Cri)

426. Therefore, the FIR against accused No.1 deserve