Allowed

Smt Sanna Boramma v. the State of Karnataka

Karnataka HC16 Jun 2022CRL.P/2547/2021

Case brief

AI extract

What is this about?

The High Court quashed the FIR and criminal proceedings against the petitioner under Sections 384, 504, 506 IPC. The court held that since a departmental inquiry, on the preponderance of probability, found no involvement of the petitioner in bribery allegations, continuing criminal prosecution violated the higher standard of proof required in criminal law.

What did the court decide?

Criminal Petition allowed; FIR in Crime No. 21 of 2021 registered in Criminal Court dated 26.02.2021 quashed.

Smt Sanna Boramma Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION No.2547 OF 2021

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BETWEEN:

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SMT.SANNA BORAMMA AGED ABOUT 47 YEARS D/O LATE SIDDALINGAPPA ENFORCEMENT / ACCOUNTS OFFICER EMPLOYEES PROVIDENT FUND ORGANISATION ZONAL OFFICE, RRMR ROAD, RICHMOND CIRCLE, BENGALURU – 560 025

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R/AT B1-801, BRAHMAGIRI VASATHI SANKEENA BDA APARTMENT, STAGE 2, MALAGALA NAGARABHAVI, BENGALURU 560 072.

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... PETITIONER

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(BY SMT.LAKSHMY IYENGAR, SR.ADVOCATE FOR SRI N.GAUTHAM RAGHUNATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA CUBBON PARK POLICE STATION BENGALURU – 560 001 REP. BY STATE PUBLIC PROSECUTOR.

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SUPRIYA R., AGED ABOUT 36 YEARS W/O K.V.RAMACHANDRA NO.2/13, 15^TH “F” CROSS

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BANDAPPA GARDEN MUTYALA NAGARA BENGALURU – 560 054 MOBILE NO.:6364177071.

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... RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP FOR R1; SRI SPOORTHY HEGADE NAGARAJA, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR REGISTERED BY RESPONDENT NO.1 POLICE AS AGAINST THE PETITIONER/ACCUSED NO.1 IN CR.NO.21/2021 DATED 26.02.2021 FOR THE OFFENCE P/U/S 506, 504, 34, 384 OF IPC.

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THIS CRIMINAL PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/Smt.Sanna Boramma is before this Court calling in question FIR in Crime No.21 of 2021 registered for offences punishable under Sections 384, 504, 506 r/w 34 of the IPC and pending before the VIII Additional Chief Metropolitan Magistrate at Bengaluru.

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Heard Smt. Lakshmy Iyenger, learned senior counsel appearing for the petitioner, Sri. K.S.Abhijith, learned High Court Government Pleader appearing for respondent No.1 and

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Sri. Spoorthy Hegade Nagaraja, learned counsel appearing for respondent No.2.

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Brief facts, that lead the petitioner to this Court in the subject petition, as borne out from the pleadings are as follows:-

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The petitioner/Smt.Sanna Boramma who is accused No.1 is working as Enforcement/Accounts Officer at the Employees Provident Fund Organization (‘the Organization’ for short) and the 2^nd respondent/Smt. Supriya R, the complainant works under the petitioner as Assistant Accounts Officer in the very same organization. On 25.06.2018 the petitioner/Sanna Boramma is transferred to the Regional Office, Bommasandra on the strength of a recommendation being made by the Transfer Committee. On 08.03.2019, the complainant is transferred to Tamilnadu on her request. Therefore, there are two transfers of both the petitioner and the complainant. The allegation by the complainant is that her transfer is made on account of a recommendation made by the petitioner/Smt. Sanna Boramma. Alleging offences punishable under Sections 384, 504, 506 r/w 34 of the IPC, a crime comes to be registered in Crime No.21 of 2021 against the petitioner based

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upon a complaint made by the 2^nd respondent. The gist of the allegation in the complaint is that the petitioner had demanded `50,000/- from the hands of the complainant for getting the transfer to Tamilnadu cancelled.

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The complainant had also simultaneously complained to the departmental authorities against the petitioner. An Inquiry Committee was constituted in which the Committee after examination of records opined that the allegations made by the complainant were all false and there was no involvement of any other person in the transfer of the 2^nd respondent. It also opined that there was no evidence to show that the petitioner had demanded `50,000/- as bribe from the hands of the complainant for getting the transfer cancelled. In the light of the departmental inquiry/internal inquiry, based on the same set of facts being held and the petitioner getting exonerated, the petitioner has knocked at the doors of this court in the subject petition seeking quashment of proceedings in Crime No.21 of 2021.

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The learned counsel representing the petitioner would vehemently contend that since the petitioner had registered a crime

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against the complainant/Supriya R which became a crime in crime No.81 of 2020 alleging that the petitioner had received a phone call from Ajay Rao with recorded audio clip leading to Police filing a charge sheet in C.C.No.22055 of 2021, the present complaint is registered. She would contend that there is no substance in any of the allegations so made, as all those which became a subject matter of departmental enquiry in which the petitioner has been exonerated and, therefore, continuation of proceedings in Crime No.21 of 2021 would be an abuse of process of law.

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On the other hand, the learned counsel appearing for the 2^nd respondent would vehemently refute the submissions to contend that the allegations against the complainant levelled by the petitioner were all false but the allegations made against the petitioner in the impugned complaint are all true. The petitioner did demand certain amount to get the transfer cancelled. In the same breath he would admit that the transfer was at the request of the complainant. He also submits that it is a matter of trial for the petitioner to come out clean and would seek dismissal of the petition.

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I have given my anxious consideration to the submissions made by the learned senior counsel and respective learned counsel and have perused the material on record.

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The afore-narrated dates and the link in the chain of events are not in dispute. The allegation against the petitioner is that she has demanded `50,000/- from the complainant to get her transfer cancelled. The complainant had made two attempts – one registration of crime by setting the criminal law in motion in Crime No.21 of 2021 and the other is the complaint made on the same set of facts before the Organization against two persons – one the petitioner and the other Mr. R.K. Singh. The Committee did go into the entire allegations including registration of crime by the petitioner against the complainant and opined that there was no substance in the allegations. The report of the Committee reads as follows:

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“REPORT OF THE COMMITTEE

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The motive alleged by her was to induce her to pay bribe to modify her transfer-orders since she was 1)unwilling

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to go to Chennai 2) unwilling to go to RO, Bengaluru (Koramangala).

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It is also on record that Ms.Sannaboramma, AO, filed a FIR at the Police Station, Cubbon Park, against blackmail by an unknown person. Subsequent police investigation led to the arrest & judicial custody of both the blackmailer and Ms.Supriya herself. As on date, the police is continuing to investigate the case under Sections 506, 34, 389 & 384 of the Indian Penal Code.

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Ms.Supriya had also moved CAT, Bengaluru to get a stay on her transfer-order to RO, Bengaluru (Koramangala), which was dismissed against her. The official finally reported for duties to RO, Bengaluru (Koramangala) on 01.01.2021.

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2 audio-clips which were annexed as part of her complaint were also looked into. These form the evidence basing upon which the aforesaid FIR was lodged. As much as has been possible, attempts were made to decipher the contents of the audio-clips. It is to state that there appears to be no conclusive evidence of demand and / or acceptance of bribe.

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As regards the issue of her transfer to Chennai as adverted to by the complainant vide paras 2 & 3 of her letter (complaint), it is seen from documents on records available with ZO, Bengaluru that:

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Ms.Supriya had made a request for transfer to Chennai, on personal grounds, which was duly accepted by the Head Office (HO), EPFO (Competent Authority) leading to issue of her transfer order in March, 2019.

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The official, changing her mind and deciding against going to Chennai, again on personal grounds, applied for cancellation of her transfer-order.

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In the first instance, it was not accepted by the HO. Upon a subsequent request by the official, it was accepted by the HO which issued the revised order in November, 2019.

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No procedural lapse by the ZO, Bengaluru in the aforesaid chronology of events has been observed by this Committee.

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It is also to state that, insofar as the allegation of Ms. Supriya regarding her having paid a bribe of Rs.20,000/- is concerned, a rebuttal has been issued by Ms.Sannaboramma which could be perused.

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As regards the issue of her transfer to RO, Bengaluru (Koramangala) on 17.09.2020 as adverted to by the complainant vide paras 4, 5 & 6 of her letter (complaint), it is seen from the documents on records available with ZO, Bengaluru that:

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A committee was duly constituted by the Competent Authority at ZO, Bengaluru, consequent upon receipt of HO OM No.HRMIII/35(10)10/Transfer Policy/EO-AO/ Vol.1/2 257 dated 21.07.2020 to transfer officials within Zones.

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The Committee was also in receipt of ZO, Bengaluru note No.EPFO/ACC (K&G) / BNG / 37 /2020-21/2/2750/2020 dated 14.09.2020 advising it to transfer out certain surplus SSA/SSSAs from ZO, Bengaluru consequent upon reporting of 4 ASOs at ZO, Bengaluru.

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The said Committee in its wisdom and according to its assessment o requirement of SSA/SSSAs as per workload amongst all the

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field offices under the ZO, Bengaluru, decided to transfer Ms.Supriya from ZO, Bengaluru to RO, Bengaluru (Koramangala) which is within the municipal limits of Bengaluru city, viz., both ZO, Bengaluru & RO, Bengaluru (Koramangala) are located within one and the same city.

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Again, no procedural irregularity has been observed by the members of this Committee in the aforesaid sequence of events. Particularly, it has also been noticed that the guidelines of the HO OM referred to above have been adhered to.

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Paras 7 & 8 of the complainant’s letter deal with the activities of one Shri Veer Katkol, a friend/acquintance of the complainant, on her behalf, and her filing a OA in CAT, Bengaluru. It is to state here that the blackmailer, referred to earlier in the report, is none other than Shri Veer Katkol. The matter is under investigation by the police and, honourable CAT, Bengaluru was pleased to dismiss the case against the complainant, as has already been explained.

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As regards para 9 of the complainant’s letter, it is a letter, basing on the assumptions of one Shri H.S.Sadashiva, claiming to be a Trade Unionist. The official Ms.Supriya declined to reveal as to how this letter addressed to CPFC only, came to be in her possession. The allegations made in the letter are general in nature and unsupported by any substantive evidence. Further, the complainant has also enclosed a letter No.PY/PNY/PF/ADM/171/2019-20 dated 04.07.2020 written by RO, Peenya to ZO, Bengaluru. A perusal of this letter indicates that it is out of context here and the complainant has referred to it under the erroneous assumption that it somehow vindicates her stand whereas the said letter refers to a totally different and unconnected issue of inter-adjustment of staff amongst the field offices of the Zone.

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Therefore, it is to state that prima facie, there doesn’t appear to be any involvement of the persons named by her in her complaint nor any evidence against them thereof, that they had demanded bribe from her.

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This committee, however, has observed that the official Ms.Supriya preferred her complaint of bribe against certain officers of the ZO, Bengaluru in the issue relating to her transfer to Chennai belatedly i.e., more than 1 year later whereas, she could have done so at that time itself, if it were required. Secondly, the official, in addressing her complaint to various authorities outside of EPFO, has contravened the guidelines of HO letter No. HRMX/IGHC/I(II)2013 dated 10.09.2015 wherein it is advised that representations/complaints be submitted through the prescribed channel of communication.”

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The Committee in its report supra considers entire spectrum of allegations as to whether there was any intimidation against the complainant by the petitioner of any kind of offence and holds that there was no evidence against the petitioner for having taken bribe from the complainant. On arriving at that conclusion the Committee recommends closure of entire proceedings against the petitioner. Pursuant to this, the proceedings against the petitioner are closed and this closure has become final. If a fact could not be proved in a departmental inquiry which is on preponderance of probability then it can hardly be proved in a criminal trial which requires the facts to be proved beyond all reasonable doubt.

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Therefore, permitting further proceedings to continue against the petitioner in Crime No.21 of 2021 would amount to permitting an abuse of the process of law. The view of mine, in this regard, is fortified by the judgment rendered by the Apex Court in the case of ASHOO SURENDRANATH TEWARI v. CBI¹ , wherein the Apex Court following the judgments in the case of P.S. RAJYA v. STATE OF BIHAR reported in (1996)9 SCC 1 and in the case of RADHESHYAM KEJRIWAL v. STATE OF W.B . reported in (2011)3 SCC 581 holds as follows:

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“8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , the question before the Court was posed as follows: (SCC pp. 2-3, para 3)

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“3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.”

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1 (2020) 9 SCC 636

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9. This Court then went on to state: (P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 5, para 17)

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“17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it.”

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10. This being the case, the Court then held: (P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 9, para 23)

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“23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view [Prabhu Saran Rajya v. State of Bihar, Criminal Miscellaneous No. 5212 of 1992, order dated 3-81993 (Pat)] that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.”

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11. In Radheshyam Kejriwal v. State of W.B. [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as follows: (SCC pp. 594-96, paras 26, 29 & 31)

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“26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [B.N. Kashyap v. Crown, 1944 SCC OnLine Lah 46 : AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (SCC OnLine Lah: AIR p. 27)

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‘… I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.’

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***

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29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that

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the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.

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***

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31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case.”

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12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598)

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“38. The ratio which can be culled out from these decisions can broadly be stated as follows:

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(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

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(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

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(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

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(iv)The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

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(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of

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Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

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(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

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(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.”

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13. It finally concluded: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para 39)

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“39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.”

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15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22-12-2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment [Ashoo Surendranath Tewari v. CBI, 2014 SCC OnLine Bom 5042] of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code”.

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The Apex Court in the afore-quoted judgment clearly holds that if in a departmental inquiry the allegations could not be proved notwithstanding the fact that the probabilities are preponderant, they can hardly be proved in a criminal trial. Therefore, sets the criminal proceedings at naught. The judgment so rendered by the Apex Court in the case of ASHOO SURENDRANATH TEWARI (supra) would become applicable to the facts of the case at hand in all its fours, as the Committee that was constituted to go into the veracity of the allegations against the petitioner on a complaint by the 2^nd respondent/complainant were concerning competent authorities of the organization and the analysis of the Committee is after going into the evidence and allegations of bribe made by the 2^nd respondent.

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The finding of the Committee is that the

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complainant/Supriya R had herself made a request for transfer to Tamil Nadu. If it was on her own request for transfer to Tamil Nadu, there cannot be a demand for bribe to get it cancelled. Therefore, the department holds that there was no truth in the allegation, as

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transfer on request cannot result in demand of bribe to cancel it. In the teeth of the aforesaid finding in the departmental inquiry, which was on examination of records, I do not find any merit whatsoever to permit continuance of the proceedings in Crime No.21 of 2021, as they all revolve round same set of facts. There is not even a prima facie material to demonstrate offence punishable under Sections 504, 506, 384 r/w 34 of the IPC. The entire fulcrum of the allegations are concerning the order of transfer and the story twined around the said order of transfer. If proceedings against the petitioner are permitted to continue, it would undoubtedly result in miscarriage of justice and degenerate into harassment against the petitioner.

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For the aforesaid reasons, I pass the following:

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O R D E R

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(i) Criminal Petition is allowed.

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(ii) FIR registered in Crime No.21 of 2021 dated 26.02.2021 pending before the VIII Additional Chief Metropolitan Magistrate at Bengaluru stands quashed.

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Sd/JUDGE

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bkp CT:MJ

Smt Sanna Boramma v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Sanna Boramma v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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