Dismissed

Mr. Inderkumar. M v. State of Karnataka

Karnataka HC17 Mar 2021CRL.P/54/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed three bail petitions filed by BDA officials accused of colluding with a real estate agent to create fake allotment letters and loot state properties under various IPC sections, rejecting claims for default bail as the investigation continued and a charge sheet was filed.

What did the court decide?

Criminal petitions allowing bail are dismissed; liberty granted to approach the trial court.

Mr. Inderkumar. M Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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CRIMINAL PETITION No.54 OF 2021 CONNECTED WITH

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CRIMINAL PETITION No.363 OF 2021 CRIMINAL PETITION No.459 OF 2021

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IN CRIMINAL PETITION NO.54/2021:

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BETWEEN:

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Mr. Inderkumar M Aged about 36 years Son of R.M. Kannan R/a No.34, Inderillam, I Floor Pioneer Defence Housing Colony Adarsh Nagar, R.T.Nagar Post Bangalore – 560 032.

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(Now in Judicial Custody Central Prison, Bangalore) …Petitioner (By Sri. Hashmath Pasha, Sr. Counsel for Sri. Nasir Ali - Advocate)

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AND:

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State of Karnataka By Seshadripuram Police Bangalore City – 560001

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Rep. by learned State Public Prosecutor High Court of Karnataka Bangalore.

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...Respondent

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(By Sri. V.M. Sheelavanth, SPP-I a/w Smt. Rashmi Jadhav – HCGP)

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This Criminal petition is filed under Section 439 of Cr.P.C. praying to enlarge him on bail in Crime No.89/2020 of Seshadripuram Police Station, Bangalore City, which is pending on the file of the IV-ACMM, Bangalore for offences punishable under Sections 406, 409, 420, 470, 467, 471, 473, 472, 474, 475, 476 of IPC on such terms and conditions.

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IN CRIMINAL PETITION NO.363/2021: BETWEEN:

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Mr. Shivegowda S/o Late Nanja Lingegowda Aged about 45 years Deputy Secretary – 3 BDA, Bengaluru – 560 001. …Petitioner (By Sri. Kiran S. Javali – Advocate for Sri. Chandrashekara K - Advocate)

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AND:

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State of Karnataka By Seshadripuram Police Station Rep. by SPP High Court Building Bangalore-560 001.

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...Respondent

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(By Sri. V.M. Sheelavanth, SPP-I a/w Smt. Rashmi Jadhav – HCGP)

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This Criminal petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.89/2020 of Seshadripuram Police Station, Bangalore on the file of IV ACMM, Bengaluru for the offences punishable under Sections 406, 409, 467, 471, 472, 474, 475, 476 and 420 of IPC.

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IN CRIMINAL PETITION NO.459/2021:

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BETWEEN:

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Smt. Kamalamma M.V W/o Late Mr. C. Prasad Aged about 59 years R/at No.552, 1^st Floor 53^rd Cross, 3^rd Block Rajajinagar Bangalore - 560001.

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…Petitioner (By Sri. Sanjay J. Chouta, Sr. Counsel for Sri. Ismail Muneeb Musba - Advocate)

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AND:

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State of Karnataka Rep. by Seshadripuram Police Rep. by Public Prosecutor High Court Building High Court of Karnataka Bangalore-560001.

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...Respondent

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(By Sri. V.M. Sheelavanth, SPP-I a/w Smt. Rashmi Jadhav – HCGP)

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This Criminal petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.89/2020 of Seshadripuram Police Station, Bangalore for

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the offences punishable under Sections 406, 409, 420, 470, 467, 471, 473, 472, 474, 475, 476 of IPC.

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These Criminal petitions coming on for further Hearing , this day, the Court made the following:

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O R D E R

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Crl.P.No.54/2021 is filed by Accused No.2, Crl.P.No.363/2021 is filed by Accused No.1 and Crl.P.No.459/2021 is filed by Accused No.3 under Section 439 of Cr.P.C. for granting bail in Crime No.89/2020 registered by Seshadripuram Police Station for the offence punishable under Sections 406, 409, 467, 470, 471, 472, 473, 474, 475, 476 and 420 of IPC.

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The case of the prosecution is that on the complaint filed by one Ravikumar, Police Inspector, BDA Vigilance Branch alleging that the Commissioner of BDA said to have received a Pen Drive that the officials of BDA have joined with one Inder Kumar and carried the allotment letters and official seals of BDA to the private office of Inder Kumar - Accused – 2 situated at Cunningham Road, Bangalore and they have created the BDA allotment letters of sites of HBR

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and HRBR Layouts as if the BDA is allotting those sites and collecting lakhs of rupees and therefore, requested to take action.

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Based upon the information after registering the case, the respondent-police arrested these petitioners on 04.12.2020 and were remanded to judicial custody. The petitioners said to have approached the Sessions Judge for granting of bail which came to be rejected. Hence, they are before this Court by filing separate bail petitions.

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Sri Hashmath Pasha, learned Senior Counsel for the petitioner – Accused No.2 in Crl.P.No.54/2021 contended that the petitioner is innocent of alleged offences and he has been falsely implicated in the case; the alleged offences are maximum punishable with 7 years and this petitioner said to be attempted to cheat the BDA by issuing fake certificates; the offence utmost may attract Section 420 r/w 511 IPC; the punishment for the offence under Section 420 is maximum 7 years; in this case this petitioner has only made an attempt to cheat the BDA, therefore, there is only

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half of the punishment that is 3 ½ years; the petitioner is in custody for almost more than 3 ½ months; the investigation is already completed; the police have already recovered the documents and also have took the accused to police custody and later produced before the Court; this petitioner is no more required for the purpose of investigation; the offences as alleged has not been committed and it was only under preparation and it cannot be said that the accused has cheated either the BDA or public and have gained themselves in private; merely preparing some documents or allotment letters and keeping them in the office do not constitute any of the offences under the provision of the IPC as stated by the prosecution; this petitioner is a film producer and a real estate agent and he is ready to abide by any condition to be imposed by this Court and he is a permanent resident of Bengaluru City. On these grounds, learned Senior Counsel prayed for granting bail to petitioner – Accused No.2.

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Sri Kiran S.Javali, learned counsel for the petitioner – Accused No.1 in Crl.P.No.363/2021 contended that this the petitioner is innocent of the alleged offences and he has been falsely implicated in the case; the documents were seized from Accused No.2 and this petitioner was arrested on 04.12.2020; nothing has been seized from the custody of this petitioner; he was working as Deputy Secretary in BDA and had taken charge of the said post only in the month of June, 2020 during the lock down period; the alleged offences said to have taken place from the year 2018 and he is not involved in any of the offence as alleged by the prosecution; he is ready to abide by any condition to be imposed by this Court. Hence, prayed for granting of bail.

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Sri Sandesh J.Chouta, learned Senior Counsel for the petitioner–Accused No.3 in Crl.P.No.459/2021 contended that the petitioner is innocent of alleged offences and she has been falsely implicated in the case; she is working as a Supervisor in BDA under the Secretaries; she

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is not the custodian of the documents and has not forged any documents as stated in the complaint; she does not have any independent power to issue any certificate, allotment letters etc; she is aged about 59 years and a woman and widow and she is ready to abide by any conditions to be imposed by this Court. Hence, prayed for granting of bail.

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Both the learned Senior Counsel appearing for Accused Nos.2 and 3 submitted that one Anil Kumar.R - Accused No.25 who was the former Deputy Secretary of BDA was granted anticipatory bail in Crl.Misc.No.656/2021 on 15.03.2021 by the Sessions Judge. Accused Nos.8 and 9 who are the workers of Accused No.2 were also granted bail and the allegations against those persons are similar to that of these petitioners. Accused Nos.21 to 24 who are the private persons were also granted anticipatory bail by the Sessions Judge. Even otherwise, the alleged offences though are non-bailable but not punishable either with death or imprisonment for life. The investigation is already

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completed and charge sheet has been filed and their presence is not required for the purpose of investigation.

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Per contra, learned SPP seriously objected the bail petitions and also has filed written objections contending that Accused No.1 being a Deputy Secretary who was working in BDA colluded with Accused No.2, prepared allotment certificates by creating fake site numbers, fake documents and also prepared the fake list of 123 beneficiaries in order to cheat the BDA. 40 original allotment letters have been seized from the office of Accused No.2 and 55 copies of allotments letters were also seized from the office of Accused No.2 Accused No.1 worked under Accused No.2 and he has affixed his signature on the allotment letters. Accused No.3 is the custodian of the allotment letters and she worked as a Supervisor and handed over the documents to Accused No.2 thereby facilitating Accused No.2 to create the fake allotment letters and to prepare the documents which are signed by Accused No.1. The allegations against the petitioners are all

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investigated by the Investigating Officer and filed the charge sheet. There is prima-facie material placed on record to show that Accused Nos.1 to 3 colluded together, created fake documents, allotment letters in order to sell the BDA properties. As per the Town Planning Authority, the sites were not at all in the map but they have created the false sites and tried to allot the same to the fake beneficiaries. Though the investigation is completed, but further investigation is still under progress. The accused persons have committed heinous offence and they should not be released on bail. Accepting future wrongful gain and keeping the allotment letters itself constitute the offences under Sections 465, 468, 471 of IPC. The documents were also seized from the office of Accused No.2 which reveals that Accused Nos.1 and 3 colluded with Accused No.2 for knocking over the properties of BDA. Though the other accused persons have been granted bail, but the allegations against them were not serious as compared to these petitioners. These petitioners are actually involved in creation of documents in the name of BDA for looting the

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properties of BDA. Hence, he prayed for dismissal of the petitions.

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Learned Senior counsel by way of reply contended that if the contention of learned SPP is considered that the investigation is still under progress, then the filing of the charge sheet within 90 days cannot be considered in the eye of law as it is only to prevent the petitioners keeping them out from bail for default of filing of the charge sheet under Section 167(2) of Cr.P.C. To prevent the accused in accruing their right of bail, the present charge sheet is filed. Therefore, this Court is having power to grant default bail under Section 167(2) of Cr.P.C. In support of his argument, he relied on the following judgments of Hon’ble Supreme Court:

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i) Dinesh Dalmia vs. CBI (2007) 8 SCC 770

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ii) Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67

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Upon hearing the arguments of learned Senior Counsel appearing for Accused Nos.2 and 3 and learned

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counsel for Accused No.1 as well as learned SPP and on perusal of records, it goes to shows that in W.P.No.8001/1992 and W.P.No.3337/1992 there was a direction by this Court to the BDA to allot sites to the slum dwellers who were evicted from the property of the State. As per the directions, the BDA said to have allotted 234 sites and later 180 sites to the beneficiaries and yet to allot 123 sites. The allegation against the petitioners goes to show that Accused No.3 – Lakshmana is said to be Secretary of Dalit Kalyan Kendra Karnataka Orphanage Development Association said to have been given list of 123 beneficiaries for allotment of BDA sites. It is alleged that Accused No.2 who is said to be the real estate agent in collusion with Accused Nos.1 and 3 and other accused persons had created fake allotment letters in the name of BDA and allotted some sites by mentioning the names of some fake beneficiaries. After receipt of information and after making preliminary enquiry, the complaint came to be filed before the police. The police raided the office of Accused No.2 at Cunningham Road and seized 40 fake

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allotment letters and 55 copies of allotments letters under the panchanama. The said documents also reveals that Accused No.1 who is the Deputy Secretary working under BDA has affixed his signature as good as duly approved by the BDA in the meeting and it is ready for issuing the allotment letters to the beneficiaries which were mentioned in the allotment letters. It is also reveals from the records that Accused No.3 is the Supervisor working in the BDA who is the custodian of these blank allotment letters and other documents said to have been supplied to Accused No.2 by receiving bribe. Based upon the blank allotment letters, the accused No.2 used to fill all the names and addresses of the beneficiaries showing the dimension of sites and survey number, survey of land in which sites were carved out and it was mentioned at serial No.13 that the allotment letter was issued based upon the meeting held in BDA on 26.02.2019. Though it is argued by learned counsel appearing for Accused No.1 that he had taken charge as Deputy Secretary only in the month of June, 2020 during the Corona period, he has not signed any document, but the

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original allotment letters produced before the Court reveals the signature of Accused No.1, Deputy Secretary working under the BDA and he has signed the document by using the seal of the BDA for issuing fake allotment certificate. The site numbers and the sketch prepared by so called engineers were also fake documents created in collusion with accused No.2. Though 40 allotment letters were prepared but not yet despatched to any of the beneficiaries. However 55 copies of allotment letters shows that they have already dispatched some of the letters to the beneficiaries.

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As regards to the allegations made against Accused Nos.1 and 3, it goes to show that they are BDA officials, though were working under the BDA but they have worked for accused No.2 for personal benefits in creation of false or fake allotment letters to some fake beneficiaries. If at all, the said Lakshman had given any list of beneficiaries, it has to be placed before the Commissioner of BDA and refer to the Government for approval and thereafter, the

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Commissioner again has to place before the committee meeting and later it has to be approved and thereafter, the sites have to be allotted to the beneficiaries. By looking to these documents, the list of beneficiaries are within the custody of BDA, but it may not be a ground for accused No.2 for issuing allotment certificate to all those beneficiaries. Accused No.2 is the kingpin in creation of documents for allotment of sites to the fake beneficiaries, thereby they tried to knockout the Government property for the purpose of their personal gains.

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Accused Nos.1 and 3 though are the officials of BDA, but were more loyal to Accused No.2 than the BDA. They have actually participated in the crime and were going to the office of Accused No.2 and signing in his office goes to show that they have actually participated in creation of false documents and trying to loot the property of BDA, which clearly goes to show that they have prima-facie committed the alleged offences. Though some of the certificates were not received by the beneficiaries, but that

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itself is not a ground to show that the offence has not been committed as rightly said by learned SPP, which is nothing but diffusing the bomb before it blasts and saying that it has not caused any damage to anybody and no offence has been committed.

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By looking to the entire material on record, it clearly goes to show that the accused persons are involved in creating the documents and looting the properties of BDA. Though other accused persons are granted bail, but the allegations against them are not so serious and main allegations are against these petitioners. Therefore, the petitioners are not entitled for bail.

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As regards to filing of the charge sheet, the learned Senior Counsel for the petitioner has relied on a judgment of the Hon’ble Supreme court in the case of Dinesh Dalmia vs. CBI reported in (2007) 8 SCC 770 wherein it is held that “whether an investigation in fact has remained pending and the investigating officer has

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submitted the charge-sheet only with a view to curtail the right of the accused would essentially be a question of fact.” The Hon’ble Supreme Court in the case of Rakesh Kumar Paul vs. State of Assam reported in (2017) 15 SCC 67 has held that if the charge sheet is not filed within 90 days under Section 167(2) of Cr.P.C, then the High Court can grant bail.

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But looking into the charge sheet material collected by the police it goes to show that for the alleged offences, Accused Nos.1 to 3 have been produced before the Court. Merely further investigation is under progress and collecting the other materials or making investigation regarding any other properties are also involved in the offence, that itself cannot be said that no charge sheet is filed in the eye of law. As stated by learned SPP by referring to the offence committed by the accused persons, the charge sheet is filed within time. Therefore, the contention of learned Senior counsel that since the charge sheet is not filed within the prescribed period under Section 167(2) of

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Cr.P.C., the petitioners are entitled for default bail, cannot be acceptable. By looking into the entire material on record, I am of the view, that the petitioners are not entitled for granting of bail. Accordingly, the criminal petitions are dismissed.

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However, liberty is granted to the petitioners to approach the trial Court in view of filing of the charge sheet. Any observations made by this Court shall not influence the trial Court while considering the bail applications on merits.

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Sd/JUDGE

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DKB/-

Mr. Inderkumar. M v. State of Karnataka

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Mr. Inderkumar. M v. State of Karnataka

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