Dismissed

Shri.Iqbal Ahammad Mulla S/O Amminsab Mulla v. Karnataka Lokayuktha

Karnataka HC14 Nov 2018CRL.RP/100173/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a revision petition under Sections 397 and 401 of Cr.P.C. challenging an order dismissing the petitioner's discharge application. The court found the trial court had sufficient material to make out a prima facie case.

What did the court decide?

The revision petition was dismissed and the impugned order of the trial court was upheld.

Shri.Iqbal Ahammad Mulla S/O Amminsab Mulla Vs Karnataka… — Corruption | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL. R. P. NO.100173 OF 2018

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BETWEEN:

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IQBAL AHAMMAD MULLA S/O. AMMINSAB MULLA AGE. 51 YEARS, OCC. F.D. ACCOUNT ASSISTANT R/O. OFFICE OF THE EXECUTIVE ENGINEER MINOR IRRIGATION DEPARTMENT, BELAGAVI.

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… PETITIONER

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(BY SRI MAHESH WODEYAR, ADVOCATE)

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AND :

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KARNATAKA LOKAYUKTHA THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, BELAGAVI, R/BY S.P.P. HIGH COURT OF KARNATAKA DHARWAD BENCH.

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… RESPONDENT

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(BY SRI SANTOSH B. MALAGOUDAR, SPECIAL PUBLIC PROSECUTOR)

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THIS PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE THE IMPUGNED ORDER DATED 29.08.2018 PASSED BY THE LEARNED IV ADDITIONAL DISTRICT & SESSIONS AND SPECIAL JUDGE, BELAGAVI, IN SPECIAL CASE NO.57/2014 SO FAR IT RELATES TO PETITIONER AND CONSEQUENTLY ALLOW THE DISCHARGE APPLICATION FILED BY THE PETITIONER AND DISCHARGE THE PETITIONER FROM THE OFFENCES PUNISHABLE U/S. 7, 13(1)(d) R/W. SECTION 13(2) OF THE P.C. ACT.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THIS COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed by accused No.3

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in Special Case No.57/2014 on the file of IV Additional District and Sessions Judge (PCA), Belagavi, challenging the order dated 29.08.2018, whereby the Court below dismissed his application seeking discharge filed under Section 227 of Cr.P.C.

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The case of the prosecution is that the complainant namely Sri Venkatesh Bhimaraddi

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Hongalagi, a class-I contractor had obtained a tender on 14.05.2009 for Rs.42,69,206/- to carry out contract work at Hoolikatti Ingukere in Soundatti taluk. According to the work carried out as per the tender, a final bill for Rs.37,90,236/was prepared and completion certificate was

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obtained from the Executive Engineer, Belagavi. Out of the final bill a sum of Rs.50,000/- and the

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security deposit in a sum of Rs.2,50,000/- was due

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to the complainant. In this regard the complainant contacted accused Nos.1 to 3 for about 5 – 6 months. On 22.05.2013 at about 11.00 a.m. the complainant went to the account section and contacted accused No.1 to settle the final bill and at that time accused No.1 demanded illegal gratification of Rs.15,000/- for himself and a sum of Rs.10,000/- to the Accountant/accused No.2 and stated that unless the amount is paid, work will not be done. In this background, the complainant approached the Lokayuktha Police informing them the demand of bribe made by the accused. The complainant was given the voice recorder to record the conversation with regard to the demand of bribe. On 23.05.2013 the complainant went to the office of the accused and met accused No.1. Accused No.2 was absent. When he enquired with accused No.1 regarding his work, accused No.1 demanded Rs.15,000/- for

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himself and Rs.10,000/- to accused No.2, the said conversation was recorded in the voice recorder. On 24.05.2013 the complainant once again went to the office of the accused. Accused No.2 was absent. Hence, he called on his mobile phone No.9449304167 and enquired about his work, at that time the accused No.2 told him that he has already informed accused No.3 (petitioner herein), working as a cashier and to meet him and to get his work done. The said conversation was also recorded in the mobile recorder of the complainant. The complainant thereafter met accused No.3 and the conversation between the complainant and accused No.3 was also recorded in the voice recorder.

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After registration of the case in Crime

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No.3/2013 by the Lokayuktha Police, Belagavi on the information lodged by the complainant entrustment mahazar was prepared and a trap was

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conducted. In the course of the trap proceedings a sum of Rs.15,000/- was seized at the instance of accused No.1. Trap mahazar was prepared in the presence of panch witnesses. After obtaining the necessary sanction, the prosecution laid the chargesheet before the Special Court.

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The petitioner / accused No.3 filed an application along with accused No.2 under Section 227 of Cr.P.C. seeking his discharge. The learned Special Judge in Special Case No.57/2014 vide order dated 29.08.2018 dismissed the said application.

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I have heard the learned counsel

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appearing for the petitioner/ accused No.3 as well as the learned Special Public Prosecutor appearing for the respondent.

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The learned counsel appearing for the

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petitioner vehemently contended that there is no demand and acceptance of bribe insofar as the petitioner is concerned and there is no amount whatsoever which has been seized from his possession. He would submit that there is no prima facie case against the petitioner and the prosecution which relies on the alleged voice recording has failed to produce the CD at the time of filing chargesheet and the learned Special Judge has not considered the voice recordings in the said CD before considering the discharge application. He would further submit that the findings recorded by the trial Court against the petitioner while passing the impugned order is without any basis. There is no material on record to show that all the accused have conspired and demanded the bribe amount from the complainant and the trial Court has failed to consider that there is no nexus between the illegal demand by accused No.1 and

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this petitioner. He would further contend that the Court below has come to a wrong conclusion that Section 15 of the Prevention of Corruption Act is attracted against the petitioner, wherein the chargesheet has not been filed under the said provision. He vehemently contended that there is lack of evidence against the petitioner and the dismissal of the application filed under Section 227 of Cr.P.C. against the petitioner has resulted in mis-carriage of justice since there is no involvement of the petitioner and he is innocent of the alleged offences and he has been falsely implicated in the case.

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Per contra, the learned Special Public Prosecutor appearing for the respondent contended that there is a prima facie case made out against the petitioner which is evident from the material on record. The name of the

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petitioner finds a place in the FIR and Section 7 of

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the P.C. Act is squarely applicable even if there is no demand and acceptance. He contended that the revision petition itself is not maintainable against an order of dismissing the application seeking discharge under Section 227 of Cr.P.C. It is also brought to the notice of this Court the order dated 07.08.2014 passed in Crl. P. No.11085/2013, wherein this Court dismissed the petition filed by accused No.2 under Section 482 of Cr.P.C. seeking quashing the FIR, which has been produced by the petitioner himself in his petition. Accordingly, the learned Special Public Prosecutor seeks to dismiss the petition.

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A perusal of the material on record goes

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to show that, in the FIR the complainant has stated that there was an amount of Rs.50,000/due in connection with the work at Hoolikatti village Ingukere in Soundatti taluk and also he was entitled for a sum of Rs.2,50,000/- towards

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the security deposit he has made. In this connection when he went to the office of the accused, the accused No.1 demanded a sum of Rs.15,000/for himself and also a sum of Rs.10,000/- to the Accountant – accused No.2. It is also noticed that on 24.05.2013 he went to the office of the accused and when he made phone call to accused No.2, it was informed to him by accused No.2 that he should meet accused No.3 (petitioner herein) to settle the issue. Thereafter the complainant met accused No.3, who in turn informed the complainant that he should pay a sum of Rs.10,000/- to the Accountant – accused No.2 and a sum of Rs.10,000/- to himself (accused No.3).

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A perusal of the trap mahazar goes to show that after accused No.1 received the amount of Rs.15,000/-, the present petitioner – accused No.3 called the complainant and told him to pay

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some amount to the person operating the computer. Thereafter when the complainant went to give the amount to accused Nos.2 and 3, accused No.3 after seeing another person (panch witness) along with the complainant and having raised some doubt, informed the complainant to pay the amount in the car while going to Dharwad. The said fact has also been spoken by the panch / shadow witness.

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The learned counsel for the petitioner contended that there is no material against the petitioner and there is no demand and acceptance so as to proceed against him before the trial Court and in this connection he has relied upon the following decisions :

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State of Karnataka v. Vittal and Others, 2014 Cr.R.837 (Kant.)

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Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, 2008 (2) G.L.H. 596.

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P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another, (2015)10 SCC 152.

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B. Jayaraj v. State of Andhra Pradesh, (2014)13 SCC 55.

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A. Subair v. State of Kerala, (2009)6 SCC 587

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It is held by the Hon’ble Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (supra) that the test to determine a prima facie case depends upon the facts of each case and if the learned Judge is satisfied that the evidence produced before him gives rise to suspicion only as to distinguish from grave suspicion, he will be fully within his right to discharge the accused. It is not to see as to whether the trial will end in conviction or not – Test to be applied is whether the material on record, if unrebutted, makes conviction reasonably possible.

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In the case of State of Karnataka v.

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Vittal and Others (supra), the Co-ordinate Bench of this Court has held that if the Judge considers that there are no sufficient grounds to proceed against the accused, he can be discharged. At the time of considering the case for discharge, Judge should not be a mere post office to frame charge but has to exercise his judicious and decisive mind to the facts of case in order to determine whether case for trial has been made out by prosecution.

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The Hon’ble Supreme Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another (supra), has held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Sections 7 and 13 of 1988 Act.

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The Hon’ble Supreme Court in B.Jayaraj

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v. State of Andhra Pradesh (supra) has held that it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe and in absence of proof of demand for illegal gratification etc., the offences do not stand established. Mere possession and recovery of currency notes not sufficient to constitute offence.

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Relying on the case of A. Subair v. State of Kerala (supra), the learned counsel for the petitioner contends that illegal gratification has to be proved like any other criminal offence and in the absence of proof of demand or request from public servant of a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) of the Prevention of Corruption Act cannot be held to be established.

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16. Having perused the material on record,

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it cannot be said that there is no material against the petitioner to proceed with. It is a settled law that at the time of framing of charges the Court is not expected to see as to whether there are grounds for convicting or acquitting the accused. On the other hand, if there is a prima facie case made out against the petitioner, the same is construed as a sufficient ground for proceeding against an accused. Power to sift and weigh the material is only for a limited purpose for finding out whether or not prima facie case against the accused has been made out. A roving enquiry is not permissible and it is neither feasible nor desirable. It is nodoubt true that Judge should not be a mere post office while considering the application for discharge. He has to exercise his judicious and decisive mind to the facts of the

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case in order to determine whether case for trial

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has been made out by prosecution.

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In the present case the role of the

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accused is spelt out by the complainant and it is also reflected in the mahazars drawn by the Investigating Agency.

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The learned counsel for the petitioner

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would contend by placing reliance on the decision of the Hon’ble Apex Court in Criminal Appeal No.1276/2010 decided on October 9, 2018 in the case of Dashrath Singh Chauhan v. Central Bureau of Investigation, that to attract the rigors of Sections 7, 13(2) read with 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of “demand and acceptance of bribe money by the accused”, the proving of one alone but not the other was not sufficient.

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19. The citations relied upon by the learned

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counsel for the petitioner in this regard are the cases wherein the conviction of an accused was challenged and not any case which are considered at the time of framing of charges. The trial Court while passing the impugned order has gone through the entire material including the FIR, further statement of C.W.1, entrustment panchnama, trap panchnama, seizure of articles, voice confirmation, panchnama seizure and audio CDs, statement of panch witnesses, FSL report etc., and opined that there are prima facie materials existed to proceed against the accused. Further, it considered the provision under Section 15 of the PC Act and held that it cannot be said there is no involvement of accused in the commission of offence punishable under Section 15 of the PC Act. It is further observed that even if the accused are not liable to be prosecuted for

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the offences punishable under Section 13(1)(d) and 13(2) of the PC Act, there are prima facie material to show that the accused are liable for the offence punishable under Section 7 of the PC Act wherein under Section 7 of the PC Act the prosecution is required to prove that public servant accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person”.

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It is also relevant to see that this Court

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has already dismissed the petition filed by accused No.2 in Crl.P. No.11085/2013 seeking quashing. It is observed therein that, it is for the

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prosecution to prove its allegations charged

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against the accused.

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Considering the entire material and also

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the impugned order passed by the Court below, I am of the view that there is a prima facie case made out against the petitioner and that the impugned order does not suffer from any illegality. Accordingly, the revision petition fails and the same is dismissed.

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The observations made herein are

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confined only for the disposal of this petition.

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Sd/-

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JUDGE

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hnm

Shri.Iqbal Ahammad Mulla S/O Amminsab Mulla v. Karnataka Lokayuktha

Case brief

What is this about?

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Shri.Iqbal Ahammad Mulla S/O Amminsab Mulla v. Karnataka Lokayuktha

Case brief

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