SHRI. DURUDUNDESHWAR URBAN vs. COMMISSIONER OF

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 25TH DAY OF FEBRUARY, 2021 BEFORE THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.100023/2015 BETWEEN:

THE STATE OF KARNATAKA BELGAUM LOKAYUKTA POLICE STATION, BELGAUM. ...PETITIONER (BY SRI. SANTOSH B. MALAGOUDAR, SPECIAL PP)

AND:

BASAVARAJ NAGAPPA BAWALATTI AGE: 59 YEARS, OCC: DEPUTY SUPERINTENDENT OF POLICE, R/O. SIRUR, TAL. AND DIST. BAGALKOT …RESPONDENT (BY SMT. SHOBHA PATIL, ADVOCATE)

THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1) R/W SEC. 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED ORDER ON DISCHARGE OF THE ACCUSED/RESPONDENT DATED 24.07.2014 IN SPL. CASE NO.48/2013 PASSED BY THE IV-ADDL. DIST. & SESSIONS & SPL. JUDGE (PCA), BELGAUM, BY ALLOWING THIS REVISION PETITION.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.02.2021, COMING ON FOR PRONOUNCEMENT OF ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

2 ORDER

This petition is filed by the State represented by the Lokayukta Police u/s. 397 Cr.P.C. for setting aside the order dated 24.07.2014 passed by the IV Addl. District and sessions judge and Special Judge (PCA) Belagavi (hereinafter referred to as ‘the trial Court’) in Special Case No.48/2013, for having discharged the respondent accused under Section 227 of Cr.P.C. for the offence punishable under Section 13(1)(e) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’, for brevity). 2. Heard the arguments of learned Special Public Prosecutor for the Lokayukta Sri. Santosh Malagoudar and learned counsel Smt. Shobha Patil, appearing for the respondent/accused. The ranks of the parties before the trial Court is retained for the purpose of convenience. 3. The case of the prosecution is that, Belagavi Lokayukta Police have registered a case against the accused for the offence punishable under Section 13(1)(e) R/w. Section 13(2) of the P.C.

3 Act on the basis of the source report of the one Sri. R. K. Patil dated 03.11.2008. The Superintendent of Police, Karnataka Lokayuka Belagavi by his order No.SP/KLA/Belagavi-3/2008 authorised Sri.R. K Patil, Police Inspector, to register the case and investigate the case against the accused. According to the FIR, the accused is found to be in possession of assets more than 528.8% of his known sources of income. The Investigating Officer has collected the oral and documentary evidence and filed charge sheet against the accused that the accused is found to be in possession of disproportionate assets of 100.86%. 4. At the time of raid, the accused was serving as the Deputy Superintendent of Police at Khade Bazar Sub-Division, Belagavi and his check period is 07.09.1981 to 27.11.2008. The accused held the property to the extent of `52,07,812/-, the expenditure incurred to the extent of `17,73,747/- and the total income comes to `34,75,691/-. After filing of the charge sheet, a case was registered against the accused in the special Court in Special Case No.48/2013 and when the matter was posted for hearing before charge, the accused filed an application under

4 Section 227 of Cr.P.C. seeking discharge from the alleged offence and the trial Court allowed his application and discharged the accused for the alleged offence vide impugned order dated 24.07.2014. 5. Assailing the discharge of accused, the Lokayukta filed this revision petition contending that the discharge is contrary to the law and evidence on record. It is one sided and arbitrary which is liable to be set aside. It is further contended that the accused joined the police service as PSI on 07.09.1981 and on the date of raid on 26.11.2008, he was found having assets worth `52,07,812/- and is also having property in the name of his wife. He has incurred expenditure of about 17,73,747/- and is known sources of income is `35,05,867=04. The amount spent over the acquisition of the properties was `69,81,559/-. The disproportionate asset was 100.86% in excess of the total income to his known sources of income. Without considering the evidence on record, the trial court discharged the accused, which is not correct. It is further contended that the accused was found having 3 acres 31 guntas of land in survey No.55/1 + 2B at Jiragal village acquired by the

5 accused in his wife’s name for `1,80,000/- on 26.02.2002, but the trial Court considered the same as `1,50,000/- out of compensation amount is not correct. The wife of the accused was not an earning member. The amount of `10,35,000/- agreed to be received by the accused as sale consideration of the said land is the capital income. The advance amount of `50,000/- is received under the agreement dated 20.10.2005. Considering that while computing the value held by the accused had no concern for this land, he would have not signed the concerned deed as referred at page 17 of the impugned order. The trial Judge ought not to have decided about the probative value of the documents without giving opportunity to the prosecution to challenge the said documents. The learned Judge erred in holding that the wife of the accused has invested FD to the tune of `8,03,645/- out of the money received by sale of land at Jirgal village. The trial Court also erred in holding that the acquisition of 1 acre land in survey No.271/B Mutage village in the name of wife of the accused was her separate acquisition made by investing the amount received by her by the sale proceeds of her own land and without recording the evidence that finding cannot be

6 given. The trial Court also held 12 guntas of land at Navilur acquired in the name of his wife is of his wife’s separate property. It is further contended that the trial court erred in excluding the value of farm house in survey No.972/2/A of Sirur village the partition deed executed on 25.03.2004 whereas the accused joined service in 1981. There is no evidence at the time of construction of farm house and expenditure. The accused had declared his statement of assets and liabilities for the year 2010 at `9,00,000/-. The trial Court ought not to have considered the unregistered deed dated 05.04.2004 without recording the evidence and not ought to have excluded `9,00,000/- in computing the assets. It is further contended that the learned trial Judge without recording the evidence ought not to have excluded `7,00,000/- received under the agreement concerning survey No.86 of village Bhoragi. The said document was found in the house of the accused during the raid. The trial Court failed to appreciate the sanction order issued under Section 19 of the P.C.Act. Hence prayed for allowing the petition and setting aside the order of discharge. The learned counsel for the Lokayukta has contended the trial Court relied upon the judgments of the Hon’ble Supreme Court in

7 case of State of Haryana and Others Vs. Ch.Bhajan Lal and others reported in AIR 1992 SC 604 and P. A. Vijayan Vs. State of Karnataka reported in AIR Kant.HCR.2002-0-123. The ratio laid down in those cases are altogether different from the present case on hand. The Hon’ble Supreme Court has held in various judgments that it is not necessary to evaluate and appreciate each and every material while deciding discharge of the accused. It is not necessary whether materials are sufficient to convict the accused or acquit the accused and it is only to verify whether prima facie materials are available on record to frame the charge and to proceed with the trial against the accused. Therefore, he prayed for allowing the petition. In support of his argument, he has relied upon the following judgments of the Hon’ble supreme court, reported in: 1. (2001) 1 SCC 369 (State by CBI Vs. S. Bangarappa) 2. AIR (2017) SC 796 (State of Rajasthan Vs. Fatehkaran Mehdu) 3. (2019) 7 SCC 515 (State by Karnataka Lokayukta, Police Station, Bengaluru Vs. M. R. Hiremath)

8 6. Per contra, the learned counsel appearing for the respondent Smt. Shobha Patil has supported the order passed by the trial court for having discharged the accused and contended that the accused has declared his assets and liabilities to his appointing authority and official superiors to him. The same was not questioned by the appointing authority and the same has been accepted. The rank of Dy.S.P. level officer is required to conduct the investigation as per Section 17 of the P.C. Act, but the Police Inspector conducted the investigation and due to departmental enmity against the accused, they searched for material to file complaint and as they did not have any material, they have taken 4½ years for filing the charge sheet. There is no reason available for the Lokayukta to file the charge sheet. They searched for reason for filing the false charge sheet against the accused. She would further contend that the Lokayukta registered the case against the accused for having disproportionate income of 528.8% more than his known sources of income, but after taking four years, they filed charge sheet by changing their version that only he is having only 100.86% assets more than the known sources of

9 income, which is not correct. The calculation made by the I.O. is totally wrong. 7. The learned counsel further contended that the I.O. has included the property of his wife which was acquired by the Authority under the Upper Krishna Project and she has received the compensation and out of the compensation, she has reinvested the said amount by purchasing 3 acres of land and the State has also given exemption for payment of stamp duty for registration, but the I.O. purposely included the same as assets of the accused which is not correct. These documents are pertaining to the property of the wife of the accused and without any reason the I.O. included the same in the assets of the accused, which is not correct. 8. Learned counsel further contended that the accused received his share of land under the family partition, where they constructed a farm house and the same was declared by him in his assets and liability statement in the year 2004 itself. The same cannot be questioned by the Lokayukta as he has not acquired the property by paying any sale proceeds. Therefore, the trial court rightly excluded `9,00,000/- from his assets which was not acquired

10 by the accused by paying any sale consideration, but it is an ancestral property received by him under the partition. 9. Learned counsel further contended that the wife of the accused received `7,00,000/- as earnest money which cannot be included in the assets of the accused. The accused has not signed on the document. It is an unsigned document, which cannot be considered as his asset. His income from agriculture has been declared as `2,00,000/- per annum to his official superior as per the KCSR Rules. But the I.O. collected some figure from an Assistant Officer by showing the agriculture income as less than what the accused declared without any material. Therefore, the trial Court rightly considered his income as declared by him in his assets liabilities statement. 10. Learned counsel further contended that the I.O. made wrong calculation by taking into account the income of the family property of the wife as property and income of the accused which is not correct. All the material collected by the I.O. was available on record but the I.O. made wrong calculation in order to file false

11 charge sheet. Hence she justified the order passed by the trial Court. 11. Learned counsel further contended that, after the discharge, the government sent an order to the Lokayukta informing that it is not a fit case for filing an appeal. But in spite of that order, the Lokayukta filed this revision without any authority which is not sustainable. The learned counsel also relied upon the judgments which was referred by the trial Court and also a judgment passed by the coordinate Bench of this court in Crl.PNo.11008/2013 dated 26.03.2019 and contended that, in a similar case this court upheld the order of discharge by dismissing the revision filed by the state and hence prayed for dismissing the petition. 12. Upon hearing the arguments and perusal of the records, the point that arise for my consideration is: “Whether the trial Court is not justified in discharging the accused which calls for interference of this Court? 13. Perused the records. It is an undisputed fact that the accused was appointed as PSI in the police department and joined

12 service on 07.09.1981 and at the time of the alleged ride i.e., on 26.11.2008, he was Dy.S.P. Khadebazaar Sub-division Belagavi. As per the prosecution case, the accused is alleged to have amassed wealth of 528.8% more than his known sources of income as per the FIR and source report. But after the investigation, the I.O. filed charge sheet stating that it is 100.86% more than the known source of income. About 428% has been reduced by the I.O. Admittedly the accused moved an application for discharge from the charges and the trial Court after considering the contentions accepted the arguments and passed the impugned order by discharging the accused. 14. Before considering the arguments addressed by the counsel for the parties, it is worth to mention the principles laid down by the Hon’ble Apex Court in respect of framing of charge and discharge while considering the applications under Sections 227 and 228 of Cr.P.C. 15. As per the contention of the learned Special counsel for Lokayaktha, the judgments relied by the trial Court for discharging the accused are not applicable to the case on hand and he has

13 relied upon the judgments of the Hon’ble Supreme Court to consider the grounds for framing of charges. The learned special counsel relied upon the judgment of the Hon’ble Apex Court reported in (2001) 1 SCC 369 in the case of State by CBI Vs. S. Bangarappa, wherein the Hon’ble Supreme Court held at para 21, 22 and 23 as follows: “21. Time and again this Court has pointed out that at the stage of framing charge the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further. (vide State of M.P. vs. Dr. Krishna Chandra Saksena, [1996 (11) SCC 439]. 22. We have no doubt that the materials which prosecution enumerated are sufficient to frame the charge for the offence under Section 313(2) read with Section 13(1)(e) of the Act. 23. No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account or explain such excess, [vide M. Krishna Reddy vs. State Dy. Superintendent of Police, 1992(4) SCC 45,

14 P. Nallammal and anr. vs. State, 1999(6) SCC 559]. It does not mean that the court could not frame charge until the public servant fails to explain the excess or surplus pointed out to be the wealth or assets of the public servant concerned. This exercise can be completed only in the trial.[ K.Veeraswami v. Union of India (1991 (3) SCC 655; State of Maharashtra vs. Iswar Piraji Kalpatri 1996(1) SCC 542. In the latter decision the court held thus: “The opportunity which is to be afforded to the delinquent officer under Sec.5(1)(e) of the Act [corresponding to Sec.13(1)(e) of 1988 Act of] of satisfactorily explaining about his assets and resources is before the court when the trial commences, and not at an earlier stage.” 16. In another case reported in AIR 2017 SC 796, in the case of State of Rajasthan Vs. Pathekaran Melagu, the Hon’ble Supreme Court has held in para 26 and 28 as under: “26. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge

15 is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397 Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are as follows: "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not

16 exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.” “13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.” 17. In another case reported in 2019 (7) SCC 515 in the case of State by Lokayukta Police Vs. Hiremath, the Hon’ble Apex Court held at para 25 as under: “25. The High Court has in the present case erred on all the above counts. The High Court has erred in coming to the conclusion that in the absence of a certificate under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place

17 reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. This was consistent with the decision in Lalita Kumari. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held: “29…At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction,

18 the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

19 accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 20. On comparison with both the above sections, in order to discharge the accused under section 239 of Cr.P.C., the charges against the accused shall be groundless, whereas under section 227 Cr.P.C., where it is defines, after hearing the submission of the accused and prosecution in this behalf, the Judge considers that there is no sufficient grounds for proceeding against the accused, he shall discharge the accused. 21. The Hon’ble supreme Court has held in a reported judgment in the case of P. Vijayan V. State of Kerala reported in AIR 2010 SC 663, that if two view are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or

20 acquittal. The Judge is not a mere Post Office to frame the charge, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or documents produced before the court which ex-facie disclosed that there was suspicious circumstance against the accused. 22. It is also held by the Hon’ble Supreme Court in the case of State represented by the Deputy Superintendent of Police Vigilance and Anti-Corruption, Tamil Nadu Vs. J. Doraiswamy Etc., reported in LNIND 2019 SC 237, that while considering case of discharge sought immediately after charge sheet was filed, Court could not become Appellate Court and start appreciating evidence by finding out inconsistency in statements of witnesses. 23. The Hon’ble supreme court also held in the judgment in the case of State of Madhya Pradesh Vs. Mohan Lal Soni reported in (2000) 6 SCC 388, where it is held the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face

21 value disclose the existence of all the ingredients constituting the alleged offence. The Court may for the limited purpose can verify the record and it cannot be accepted even at the initial stage to accept all the prosecution statements as gospel truth, even if it is opposed to common sense of broad probabilities of the case. The discharge of the accused by the trial Court in a corruption case, where the I.O. withheld some documents without producing the same before the trial Court while filing the charge sheet and the trial Court rejected the application holding that the document produced by the I.O. should be looked into and not the other documents while framing of charge. But the High Court permitted the accused to produce those documents and to consider even while framing of the charges and the trial Court framed the charges by ignoring those documents and in the revision the High Court considered those documents and discharged the accused. The same was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court upheld discharging the accused by the High Court.

22 24. In another case reported in 2005 (8) SC 782 in the case of D. S. P. Chennai Vs. K. Inbasagaran, has held that the accused has given explanation satisfactorily regarding the money and property belonged to his wife and it was declared before the Income Tax Authorities, but the same was considered as income of the accused by the trial Court, which cannot be considered as income of the accused and therefore, the Apex Court has held, even the income of the wife of the accused, which were undeclared before the authorities, cannot be considered as the income or assets of the accused. 25. By keeping all the principles laid down by the Hon’ble Apex Court in various judgments in mind, now coming to the allegation made against the accused by the police that the accused was found in possession of the assets 100.86% more than his known sources of income, as already held above, it is not in dispute that the accused joined in police service in the year 1998 and he was working as Dy.S.P. as on 26.11.2008, at Khade Bazaar, Sub- Division, Belagavi while check period. The case was registered against the accused and while registering the FIR one Sri.R.K.Patil

23 Police Inspector, Lokayukta, Belagavi collected source material and gave report holding that the accused amassed wealth of 528.8% more than his known sources of income. Admittedly, while filing the charge sheet, it was shown as 100.86%. 26. One of the contentions taken by the learned counsel for the accused is that the landed property held by his wife has been acquired by the State for Upper Krishna Project and she had received compensation and out of the said compensation, she also reinvested some amount in purchasing the land, where she was entitled for exemption in payment of stamp duty and remaining amount she has invested in the bank as FD, but the I.O. though collected all the materials, but he has purposely considered those income of the wife as the assets of the accused, which cannot be considered for the materials to frame the charge on perusal of records. The said property at item No.4 of Schedule ‘A’ Property i.e., the land bearing Sy.No.55/1+2B measuring 3 acres 31 guntas situated at Jiragal village, was purchased out of the compensation amount of `1,50,000/- paid to the wife of the accused Smt. Anjana. It was contended that `30,000/- was invested in the transaction by

24 the accused out of the savings amount from the salary of the accused and even the stamp duty was waived by the registering authority as the property was purchased out of the compensation amount paid to the land losers in Upper Krishna Project. The property purchased for the sale consideration was `1,80,000/-. The I.O. stated that the accused purchased this land in the name of his wife on 26.02.2002. But it is declared by the accused in his Assets and Liabilities statement in the year 2004-05 as purchased out of the compensation, the I.O. presumed that, in order to avoid the Lokayukta raid in future, the accused declared in the Assets and Liabilities statement and in the charge sheet at page No.21, in Schedule No.23, it was mentioned by the I.O. that a compensation of `8,44,540/- was awarded in respect of land bearing Survey No.64/1 situated at Kuchanoor village, Taluka: Jamakhandi under U.K. Project. A division was made between the wife of the accused and her sisters. `1,48,908/- was received as the share of his wife. The said amount was shown in book No.2 page No.23 as item No.4. It is stated by the I.O. that the said amount of `1,80,000/- was that of the assets of the accused, which is prima facie wrong calculation. But the very I.O. at page no.21 at Schedule 23 has stated that

25 `8,44,540/- has been received towards the compensation on account of submerging of land in Upper Krishna project and the wife of the accused got `1,48,908/- to her share, whereas the accused contention is he has spent only `30,000/- and his wife purchased or invested `1,80,000/- for purchasing the property in survey No.55/1+2B measuring 3 acre 31 guntas in the name of the wife of the accused. But the I.O. calculated `1,80,000/- as assets of the accused which is not correct, since 3 acres 31 guntas of land was purchased by the wife of the accused out of her share of compensation received from the State. When the wife of the accused received compensation and she has re-invested the amount for purchasing the land and when the government exempts her from payment of stamp duty, it cannot be considered as the assets of the accused and the stamp duty considered as `80,462/- in Item No.9 of Schedule ‘B’ under the expenditure cannot be acceptable. When the State has given exemption of the tax to the land losers as benefit under the Upper Krishna Project, that amount cannot be considered as expenditure of the accused. On perusal of the sale deed dated 26.02.2002, it stands in the name of the wife of the accused and records are also available that the land has been

26 purchased out of the compensation received from the Upper Krishna Project land losers and obtaining the exemption of stamp duty. The trial Court rightly held that the I.O. has wrongly calculated the amount of `1,80,000/- as assets of the accused for having purchased the land by his wife out of the compensation amount received by her and adding `80,462/- in his expenditure is also wrong when the State has given exemption for stamp duty. 27. Another contention of the learned counsel for the accused to show that the I.O. miscalculated the figures is that, the wife of the accused sold the property in survey No.55/1 +2B measuring 3 acres 31 guntas for `10,35,000/-. The said land was agreed to sell to one Lalitha Shankar Naik, who is her sister, vide agreement for sale dated 20.10.2005 and received the earnest money of `50,000/- and remaining amount `9,85,000/- was agreed to be paid within a year and the wife of the accused received the remaining sale consideration through bank transaction on various dates i.e., `50,000/- on 09.09.2005, `1,00,000/- on 14.10.2005, `3,00,000/- on 26.10.2005, `1,00,000/- on 01.12.2005, `50,000/- on 21.01.2006, `1,75,000/- through cheque on 21.01.2006 and

27 `2,60,000/- on 20.04.2006, totally it comes to `10,35,000/-. The wife of the accused given relinquishing right and given consent over the said property for mutating the name of the purchaser and the same was transferred among the family members. The property was actually sold by his wife, but as she executed relinquishment deed by relinquishing the right, though no sale deed was executed, but the amount of `10,35,000/- received by the wife of the accused through bank transaction was not at all considered by the I.O. and it is stated, out of the said amount of `10,35,000/-, the wife of the accused purchased a land of 1 acre in R.S.No.271/B for `2,38,800/- and the remaining amount was invested in F.D. in the name of his wife and his children. But the I.O. has not considered the income of `10,35,000/- as income of the wife of the accused and the investment made by his wife in purchasing the land for `2,38,800/- and the investment of `10,06,393/- standing in the name of wife and children was shown as assets of the accused, which is not correct and prima facie it is a wrong calculation made by deleting `10,35,000/- from the income of the wife of the accused and adding `10,06,393/- as assets of the accused which increases the assets of the accused in the Schedule ‘A’. It is pertinent to note that the sale

28 of the land for `10,35,000/- and reinvesting in purchasing one acre of land for `2,38,800/- and investing remaining amount in the bank as F.D. belongs to the property of the wife of the accused, who was accounted for it and the same was declared by the accused in his assets and liability statement. Therefore, the said amount also cannot be considered as assets of the accused. 28. Another wrong calculation made by the I.O. is `80,462/- shown as expenditure of the accused which was the stamp duty exempted by the Government while purchasing the land by his wife out of the amount of compensation amount received. That amount cannot be considered as expenditure of the accused. 29. As regards item No.7, the Farmhouse constructed in the land bearing R.S.No.972/2/A measuring 4 acre 2 guntas of village Sirur, Bagalkot Taluka, the said property was received by the accused under the family partition held in the year 2004 i.e., much prior to the registering the case, which was declared by the accused in his assets and liabilities statement. The Farmhouse is worth `9,00,000/- as valued by the building valuator of the Lokayukta. But there is no material to show that the Farmhouse has been built

29 by the accused after the partition. But it was received by him as Farmhouse in the family partition and the same was declared in his assets and liabilities statement. It may be the asset of the accused, but it cannot be said that it was purchased by him by paying any sale consideration in order to include in Schedule ‘A’ as assets acquired by the accused to calculate as excess asset in his account. 30. As regards Item No.10 in Schedule ‘A’ regarding payment of earnest money of `7,00,000/- for purchasing the land bearing Sy.No.86 measuring 22 acres 18 guntas of land at village Bhoragi, is concerned, it was an unregistered document. No signature is found on the said document and it was not declared by the accused in his assets and liabilities statement for the year 2007-08. Therefore, the said amount is also wrongly considered as assets of the accused in Schedule ‘A’. 31. As regards to the agricultural income shown in Schedule ‘C’, the I.O. calculated the income of `10,40,248/- as agricultural income, but the accused declared the agricultural income in his assets and liabilities statement from the year 1997-98 to 2007-08 as `1,01,12,344/- and he got 1/5th share which comes to

30 `27,48,463/-. The accused also stated in his assets and liabilities statement that he has received more than `34,00,000/- as agricultural income for more than 10 years from 1997 to 2007. But the I.O. by obtaining some unscientific information from some Government official i.e., the Director of Agriculture, Bagalkot stating that the agricultural income of accused’s family from the year 1981 to 2004 was only `16,81,733/- and he has got 1/7th share which comes to `2,40,248/- which is prima facie wrong. When the accused declared the agricultural income every year to the official superior, the third person cannot say after thirty years that the accused has no such income. Therefore, discarding the income of `27,48,463/- as income from agricultural, the I.O. has shown only `10,40,248/-, which is a prima facie wrong calculation as per the available documents on record. 32. If these figures were considered, absolutely there will be no material available on record to show that the accused amassed the wealth of 100% more than the known source of income in order to frame charges against the accused. Of course the trial Court prepared three separate lists as A, B and C and its

31 own calculation which is not required. On taking out the major amounts, which were unnecessarily added by the I.O., though it belongs to the wife of the accused and though the accused received more income, but the I.O. shown it as less income only to file the charge sheet against the accused, the income and assets of the wife of the accused is excluded, the agricultural income of the accused is considered as his income, there will be no material for framing of charge against the accused. 33. Therefore, as held by the Hon’ble Apex Court in the above said decisions, the Court may not be required to evaluate each and every document and appreciate the documents, but on prima facie looking at the documents, the calculation made by the I.O. purposely deleting his income, adding the income of the wife of the accused, adding the value of ancestral property as property purchased by the accused, by showing less value than the agricultural income received from the ancestral property, showing the share of property received under partition were all goes to show that the calculation made by the I.O. for allegation to show that the accused amazed 100.86% assets more than his known sources of

32 income cannot be acceptable on the face of the record in order to frame the charges against the accused. 34. It is well settled that the court is required to consider the prima facie material placed by the prosecution. But all these materials placed by the I.O. shows a wrong calculation and miss calculations. Therefore, the I.O. might have taken more than 4½ years for the I.O. to file the charge sheet. It is also seen that the I.O. himself was the Inspector who collected the source report and he himself was being posted as Investigating Officer and he tried his level best to file the charge sheet to show that his source report is correct. After investigation if he show that there is no case against the accused, then his source report would have been a wrong report and therefore, he managed to file the charge sheet by searching the reasons for doing so. Therefore the trial Court has rightly considered only few figures mentioned by the I.O. and has rightly discharged the accused as there are no materials for framing of charge against the accused, which does not require interference by this court.

33 35. The Coordinate bench of this Court in the case of State by Lokayukta Police Station Vs. Shashidhar in Criminal Petition No.11008/2013 has dismissed the petition filed by the Lokayukta and confirmed the order of discharge in a similar situation, where a wrong calculation was made by the I.O. in filing the charge sheet in similar cases. Therefore, in this case also the I.O. made a wrong calculation and filed the charge sheet and therefore, the materials are not sufficient to frame the charge and the trial Court rightly discharged the accused. 36. As regards the investigation conducted by the Police Inspector, the proviso to Section 17 empowers the police officer not below the rank of an Inspector of Police for conducting investigation. In this case, the Superintendent of Police, Lokayukta, Belagavi, by his order No.SP/KLA/Belgavi-3/2008 dated 26.11.2008 authorised Sri.R.K.Patil for conducting investigation. Therefore, the Superintendent of Police under Section 17 of the P.C Act authorised the person not below the rank of Police Inspector for conducting the investigation. Therefore, this court cannot find fault with conducting of investigation by the Inspector of Lokayukta.

34 37. Another contention raised by the counsel for the accused Smt. Shobha Patil is that, after discharging the accused by the trial court, the State Government vide its letter dated 26.12.2014 issued an official communication to the Legal Cell, Karnataka Lokayukta, Bengaluru vide letter No.HD:11815:HCP- 1:2014 i.e., the Home Department, Principal Secretary to Government (PCAS) has opined and instructed that the State has taken the decision not to file any appeal and there is no necessity to file appeal against the order of discharge. In this regard, learned Special counsel for Lokayukta has failed to submit whether the Lokayukta is having power to supersede the order of the State Government and to file the appeal or revision by nullifying the State’s decision for not filing the appeal. Even the learned special counsel for Lokayukta not able to show the power of the Lokayukta Inspector or Lokayukta Police to file an appeal as against the decision of the State Government not to file an appeal. Even on considering the Conduct of Government Litigation Rules 1985, no where it is stated that the Lokayukta has power to file an appeal even though when the Home Department of State Government instructed not to file an appeal. Therefore, the State Government

35 and it’s official the Under Secretary to the Government, Home Department after going through the records and order of discharge, has opined that it is not a fit case for filing an appeal. Such being the case, without the order of the Ministry, Home Department or order of the Hon’ble Chief Minister, filing the appeal by the Lokayukta by superseding the order of State Government is not correct. 38. In view the above, there is no need for this Court to interfere with the order passed by the trial Court in discharging the accused. The revision petition is devoid of merits and hence liable to be dismissed. Accordingly, revision petition is dismissed.

Sd/- JUDGE

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