L. SRINIVASAIAH vs. STATE OF KARNATAKA

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION Nos. 13808-809 OF 2017 (GM-RES ) BETWEEN: L.Srinivasaiah, S/o R.Lankappa, Aged about 70 years, Retired Revenue Officer, North East Zone, Bengaluru Mahanagara Palike, Bengaluru R/at NO.27, Radhakrishna Layout, 3rd Stage, Padmanabhanagara, Bengaluru – 560 043. …Petitioner (By Shri Venkatesh P.Dalwai, Advocate)

AND:

State of Karnataka, By Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, Bengaluru – 560 001. …Respondent (By Shri Venkatesh S.Arabatti , Special Public Prosecutor )

2 These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India read with 482 of Code of Criminal Procedure praying to quash the order/set aside the order dated 22.02.2017 passed by the Learned XXIII Additional City Civil and Session Judge, Special Judge, Bengaluru Urban District at Bengaluru in Spl.C.No.77/2017 vide Annexure-E.

These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group, this day, the court made the following:

O R D E R

Heard the learned counsel for the petitioner and the respondent. The petitioner was said to be Revenue Officer in Bruhat Bengaluru Mahanagara Palike and has retired from service. He was aged 70 as on the date of the petition. The respondent had registered a First Information Report for offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the ‘PC Act’, for brevity) against the petitioner. A final report was filed against the petitioner which came to be numbered as Special C.C. No. 77/2007 for the alleged offences as already stated. The Check period was from 7.8.1972 to

3 16.3.2001 and the alleged excess income was shown as Rs.40,36,055/-. It transpires that the petitioner had filed an application before the trial court seeking discharge since there was no excess income. It is the petitioner’s case that the respondent - Police had, during the investigation, collected certain income details from agricultural and horticultural departments pertaining to the petitioner, which indicated that there was income from both, namely, agriculture and horticulture, in a sum of Rs.39,57,840/- as against the alleged income of Rs.40,36,055/- and the difference amount was about Rs.1,11,215/-. The other sources of income secured from overseas accounts, through the sister of the petitioner, in the year 1984 was also excluded, according to the petitioner, which if taken into account, would indicate that the petitioner had not committed any wrong and that there was no excess income at all. However, it is pointed out that the case of the petitioner is that in filing the charge sheet, the respondent had suppressed

4 both the aforesaid documents, which are produced as Annexures - A and B in the final report. It is only in retrospect that the petitioner had realized this and had obtained reports by recourse to the provisions of the Right to Information Act, 2005 and had filed the same before the court below, along with his application seeking discharge. The respondent had filed objections to the application and in the objections, the respondent did not dispute the receipt of such lapses, on the other hand, it was admitted. It is the case of the petitioner that the court below however has not considered the reports while addressing the application seeking discharge. The petitioner had filed a revision petition before this Court in Civil Revision Petition No.324/2017 challenging the rejection of the discharge by an order dated 24.3.2017. This Court has held that the remedy of revision was not maintainable against the rejection of the discharge and hence, the present writ petitions are filed in view of the law laid down by the apex court in the case of L.Chandrakumar vs. Union of India, AIR 1997 SC 1125,

5 wherein it has been held that the judicial review in such circumstances was maintainable. Therefore, it is contended by the learned Counsel for the petitioner that the report of the Senior Assistant, Horticulture had been obtained by the respondent, while filing the application seeking sanction for prosecution and it is a report obtained by the Police themselves at the time of seeking sanction and the same cannot be denied by the police. But, what is not explained is the suppression of report while filing the charge sheet and the same has not been part of the charge sheet and this would apparently be a deliberate attempt by the respondent to suppress the material which would absolve the petitioner of the allegations. In the report dated 11.2.2003, the income and expenditure of the petitioner from horticulture from the year 1983 to 2000 is indicated as Rs.34,44,590/- , which would militate against the case of the respondents. In that, the charge sheet has indicated the income from unknown sources as being Rs.40,36,055/-. The income from horticultural crop has not been considered in

6 filing the charge sheet. The report of the Assistant Director of Agriculture dated 15.2.2003 disclosed the income and expenditure of the petitioner, in that, the income is shown as Rs.6,14,002/- which would militate against the case of the respondent. If that income is taken into account, it would completely answer the alleged excess income shown in bringing the allegations against the petitioner. Further, there was a gift made by the petitioner’s sister by the transfer of the funds from abroad exceeding Rs.8,71,936/- which has not been considered, though there was documentary evidence of the same. This is again ignored in the charge sheet and suppressed by the Police, though documents were available. It is in this manner that the learned Counsel for the petitioner would contend that, it is inexplicable that the respondent had not chosen to produce these documents along with the charge sheet. Hence, the learned Counsel seeks the intervention of this Court.

While the learned Special Public Prosecutor appearing for the respondent would vehemently oppose the petition and

7 would submit that it is incorrect on the part of the petitioner to claim that there has been suppression of material. On the other hand, even according to the petitioner, the same was produced before the court albeit by the petitioner at the stage of hearing of the application for discharge. Therefore, the documents sought to be relied upon by the petitioner were available and were before the court and it is on consideration of the same, that the impugned order has been passed. In that, the petitioner has also declared his annual property returns and also furnished his income-tax returns, where the petitioner has declared his known sources of income and which would not be consistent with the documents now sought to be relied upon and it is hence the opinion of the court that it is the petitioner’s own declaration which would carry probative value and not the documents which are an approximation of the possible income and expenditure, as admittedly Annexures A and B are reports generated by the Horticultural Officer and the Agricultural Officer indicating an approximate income and expenditure,

8 going by the nature of the land and the kind of crops that were grown and were capable of being grown on the land in question and were clearly an approximation. Therefore, the court having chosen to rely upon and consider the documents emanating from the petitioner himself as disclosing his true and correct income was alone relevant and not any documents which were mere approximation or an estimation of possible income and expenditure. In any event, these aspects would require a close inspection which would be possible only at a full fledged trial and it cannot be heard at the stage of hearing of an application seeking discharge. Therefore, the allegation that there has been suppression is taken away by the fact that the documents are available before the Court. Secondly, to claim that the same should be taken into account in the face of the petitioner’s own declaration as to his income, in the annual property tax returns, as well as income tax returns, would be contradiction in terms. It would be for the petitioner to lay claim to the same. This would be possible, if at all, only at the trial and not at this

9 stage. Therefore, the learned Special Public Prosecutor would submit that there is no infirmity in the impugned order and no fault can be found with the reasoning of the Court below in having proceeded as it has. Therefore, the question of remanding the matter or directing the Court to reconsider the case with reference to Annexures A and B is a futile exercise, and would merely delay in prosecuting matters, when the matter is ripe for trial. The petitioner would have every opportunity to demonstrate his case by way of defence at the trial and hence seeks dismissal of the petitions.

It is further contended that the so called gift received from abroad also is not reflected in the annual property tax returns and the income tax returns and hence the question of taking the same into consideration does not arise.

By way of reply, the learned Counsel for the petitioner would point out that the check period in question is from the year 1972 to 2001. It is further pointed out that the Prevention of Corruption Act, 1947 was repealed and was replaced by the

10 Prevention of Corruption Act, 1988. Therefore, for the period from 1972 to 1988 till the coming into force of the Prevention of Corruption Act 1988, it was the provisions of the 1947 Act that were applicable. Under the provisions of the 1947 Act, there was no mandate that the petitioner should file his annual property tax returns and any income not disclosed in the annual property tax returns so filed could be taken into account where as it is from 1988 that there has been amendment to the law which declares that if properties are not disclosed in the annual property tax returns, such properties would not be taken into account. This cannot be with retrospective effect and therefore for the period 1972 and 1988, if there has been lapse on the part of the petitioner in not disclosing particular items of income in his annual property tax returns, that would not preclude the petitioner from relying on the same even at this point of time since the petitioner is likely to be visited with serious punishment for the alleged offences if the same is not properly reconciled and acceptable. Therefore, the infirmity or

11 inconsistency as between the income disclosed in the annual property tax returns for the period subsequent to 1988 would not be relevant. Therefore, the said documents, Annexures A and B as well as the document pertaining to the gift received from abroad, if looked into, as there is no legal impediment or bar for the court taking the same into account, the petitioner would clearly come out of the net of having established his known sources of income. The contention that Annexures A and B are mere approximation and cannot be proof of actual income is not an accurate statement. The approximation is not of such an exaggerated degree as would be relevant. In other words, the estimate made could also be construed as being on the lower side. To err on the side of prudence the concerned officers would naturally make terms which would not exceed the actual income and it can be said that the estimation as to the disadvantage of the petitioner and does not put him in a disadvantageous position. If that is kept in view, the petitioner

12 would come clean and would be absolved of any disproportionate assets.

In light of the above rival contentions it would appear that the impugned order does not disclose any discussion as regards Annexures A and B and documents evidencing receipt of gift from abroad and by way of foreign funds transfers in favour of the petitioner. The said documents having been collected by the Investigating authorities themselves even before filing of the charge sheet, it is inexplicable that the same has not been produced along with the charge sheet. Obviously for the reason that even if the same had been produced, it would be difficult to reconcile the alleged disproportionate assets to the known sources of income while also taking into account the income shown as per Annexures - A and B and other documents evidencing of the receipt of gift from abroad and by way of transfer of foreign funds. The petitioner having made an attempt even at the time of hearing on his application for discharge, to bring it to the attention of the court, has been in

13 vain. The court has not chosen to ignore the said documents on the footing that it was the annual property tax returns and income tax returns filed by the petitioner himself which would carry weight and would be relevant and not any such documents which are not disclosed in the annual property tax returns. However, it has overlooked that the check period is covered under the provisions of the 1947 Act as well as the 1988 Act. This, as pointed out by the learned counsel for the petitioner, would certainly make a difference. The court would be right in its view in not taking into account any such extraneous documents if they are not reflected in the annual property tax returns from the year 1988 onwards with the coming into force of the 1988 Act, and that the same would also not hold good in respect of any such material that is available, but not reflected in the annual property tax returns or the income tax returns prior to 1988. Therefore, it was incumbent on the court below to have at least prima facie reconciled the documents at Annexures A and B, particularly, and also such

14 other documents, which may indicate transfer of foreign funds which the petitioner has received. Hence, it may result in a miscarriage of justice and may even result in waste of judicial time if the petitioner would be absolved of any wrong doing after the said documents are taken into consideration. Hence, the petitioner should be afforded a further opportunity to demonstrate that the said documents would absolve him of the charges levelled against him and the respondent would also have the opportunity of meeting those contentions. The court below would therefore do well to reconsider the application seeking discharge with reference to the documents that have been ignored.

Accordingly, the petition is allowed. The impugned order is quashed. The matter is remanded for a fresh consideration in accordance with the terms as aforesaid.

Sd/-

JUDGE nv