State of Karnataka Vs Sri K H Ramesh

SRI K.H. RAMESH S/O LATE K. HANUMAPPA AGED ABOUT 42 YEARS COMMERCIAL TAX OFFICER RESIDING AT ROOM NO.103 V J HOSTEL, G.K.V.K. U.A.S. BANGALORE - 560 005.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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SMT. MONTHI MACHADO W/O LATE RONI ROSARIO AGED ABOUT 52 YEARS SECOND DIVISION ASSISTANT RESIDING AT SHRAIN NEAR KUDUPU TEMPLE KUDUPU, MANGALURU - 28 PERMANENTLY RESIDING AT KIREHALLI HOUSE SUDEKERE POST SAKALESHPURA TALUK HASSAN DISTRICT - 573 201.

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SRI B JINNAPPA NAIK S/O SRI KITTAPPA NAIK AGED ABOUT 52 YEARS

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DRIVER, R/AT KOPPALA HOUSE NEKKILADY VILLAGE UPPINANGADY POST PUTTURU TALUK - 574 201.

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SRI NARAYANA

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S/O LATE BABU POOJARY AGED ABOUT 40 YEARS RESIDING AT KEVUTAJE HOUSE CHARAMADY VILLAGE AND POST BELTHANGADY TALUK.

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…RESPONDENTS

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(BY SRI SHREEDHAR KOTRASHETTI, ADV., FOR SRI DESAI RAJENDRA CHANDRASHEKAR, ADV.,FOR R1 TO R3; SRI MILIND K. TORAVI, ADV., FOR SRI SHRINATH G.R, ADV., FOR R-4)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 27.07.2018, PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE IN SPL.CASE NO.15/2014.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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The State is before this Court in this revision petition filed

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under Section 397 read with Section 401 of Cr.P.C. with a prayer to set-aside the order dated 27.07.2018 passed in Special Case No.15/2014 by the Court of III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru.

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Heard the learned counsel for the parties.

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Respondent nos.1 to 4 herein were charge sheeted for

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the offences punishable under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and

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the case against them was pending consideration in Special Case No.15/2014 before the Court of III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru. Respondent Nos.1 to 4 herein had filed an application under Section 227 of Cr.P.C in SC No.15/2014 seeking discharge. The said application was opposed by the prosecution. Learned Trial Judge, vide the impugned order had allowed the application filed by the respondents under Section 227 of Cr.P.C. and aggrieved by the same, the State is before this Court.

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Learned counsel for the petitioner/State having reiterated the grounds urged in the petition submits that the charge sheet material makes out a prima facie case against the accused for the alleged offences. The learned trial Judge has held a mini trial and has passed the order impugned allowing application filed by the respondents/accused under Section 227 of Cr.P.C. He submits that the same was not permissible and accordingly, prays to allow this petition.

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Per contra, learned counsel appearing for the

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respondents/accused have argued in support of the order impugned and submits that nothing has been recovered from accused Nos.1 to 3 when the raid was conducted. They submit that amount of Rs.18,000/- recovered belongs to accused No.4, who is a private person. The same was recovered from the room in which he was residing. The Trial Court having appreciated that the prosecution had failed to prima facie show that there was a demand and acceptance of illegal gratification, has allowed the application filed by respondents under Section 227 of Cr.P.C. Accordingly, they pray to dismiss the petition.

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It is the case of the prosecution that accused Nos.1 to 3 were working as Commercial Tax Officers in the Office of Commercial Taxes at Mangalore during the relevant point of time and based on the credible information received, CW1/Dilip Kumar K. H., had registered a criminal case against them in Crime No.3/2013 for the offences punishable under Sections 7 and 8 of Prevention of Corruption Act, 1988 and thereafter, had obtained a search warrant from the Court and raided the spot where accused Nos.1 to 3 were inspecting the vehicles carrying

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goods. From the possession of accused No.1, a sum of

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Rs.184/-, from the possession of accused No.2, a sum of Rs.540/- and from the possession of accused No.3, a sum of Rs.1,440/- was recovered. Since accused Nos.1 to 3 had given satisfactory explanation for the amount found with them, CW1 had accepted the same and had returned the aforesaid amount to accused Nos.1 to 3. Accused No.4, who was at the spot of raid allegedly ran away and thereafter, CW1 along with the staff had raided his room in Maruthi building and had recovered

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a sum of Rs.18,000/- which was found in a bag. After completing investigation, charge sheet was filed against accused Nos.1 to 4 for the aforesaid offences.

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The material on record would go to show that FIR in the present case was registered based on credible information received by CW1, that some of the officials of Commercial Tax Officers were indulged in illegally collecting money from the drivers of transport vehicles under the guise of inspecting/checking the vehicles. It is under these circumstances, a raid was conducted to the place where accused Nos.1 to 3 were inspecting the vehicles and from the

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possession of accused, only the aforesaid amount which is not substantial was recovered. The explanation offered by accused Nos.1 to 3 has been accepted by CW1 and the money recovered from them was returned to them. According to the prosecution, subsequently, a raid was conducted to the room in which accused No.4 was found and from his bag, a sum of Rs.18,000/- was recovered.

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Prosecution has not placed on record any material to connect accused Nos.1 to 3 either to the room from which the amount was recovered or to the amount which was recovered from the room in which accused No.4 was found. Accused No.4 is undisputedly a private person and not a government servant. None of the charge sheet witnesses have spoken about Rs.18,000/- which has been recovered from the room in which accused No.4 was found. CW10 to CW13 are the witnesses, who according to the prosecution, have stated that the Commercial Tax Officers were collecting bribe from them every month through a private person. However, the statements of CW10 to CW13 do not indicate about they mentioning specifically about any demand for illegal gratification by

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accused Nos.1 to 3. There is no material to show that accused Nos.1 to 3 were collecting the illegal gratification from CW10 to CW13 through accused No.4/Narayana.

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It is to be noted that though FIR was registered in the present case on 22.01.2013 and on the very same day amount of Rs.18,000/- was allegedly recovered from the room in which accused No.4 was found, the explanation of accused No.4 with regard to the said money was recorded by the Investigation Officer in the present case only on 05.06.2013, which is after a lapse of more than five months from the date of raid. It is under these circumstances, the Trial Court has allowed the application filed by the respondents/accused under Section 227 of Cr.PC. Unless the prosecution is in a position to show that there was a demand as well as acceptance of illegal gratification by the accused, they cannot be asked to stand trial for the offences punishable under Sections 7, 8 & 13(1)(d) of

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the P. C. Act. In the present case, the explanation offered by accused Nos.1 to 3 has been accepted by CW-1, and therefore, I am of the opinion that the Trial Court was fully justified in allowing the application filed by the accused under Section 227

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