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Judgment
This petition is filed by accused No.2 to quash the proceedings in Special Case No.(LOK) 3/2022 pending before the Sessions Judge, Davanagere. The offences alleged are under Sections 7(a), 7(A) and 13(2) of Prevention of Corruption Act, 1988.
The complaint is filed on 28.03.2019 by respondent No.2 alleging that his brother-in-law and his uncle contemplated purchasing property bearing Survey No. 62/3A1 measuring 3.4 guntas and for the said purpose the vendor told the purchasers that they should get the sketch prepared for the purpose of registration. It is stated that the complainant’s brother-in-law was working in Bengaluru, and he was not in a position to attend to that work and as per his request, the complainant applied for the survey of the property along with the owner on 02.01.2019 and paid Rs.1,200/- towards the survey fee.
It is further stated that on 26.03.2019 when the complainant was in Channagiri, the owner of the property called him and told that the surveyor has come to measure the property. The complainant claims that he went to Madapur Village and met Shivakumar, the Surveyor and said Shivakumar demanded Rs.10,000/- as bribe to upload the sketch in the system. It is stated that the complainant reminded the Surveyor that he has already paid Rs.1,200/-towards the Survey fee. It is alleged that Shivakumar told the complainant to pay the amount the complainant deemed appropriate.
The complainant alleges that he offered to pay Rs.1,000/- at the time of measurement and balance later. It is further stated the complainant on 27.03.2019 at about 12:00 p.m., called the Surveyor Shivakumar on his cell phone and enquired about the amount payable to him. Surveyor allegedly demanded Rs.8,000/- and the complainant offered to pay Rs.6,000/-.
It is stated that the telephonic conversation is recorded. Accordingly, the complaint is filed. The Police registered the FIR.
The trap was laid and accused No.1 - Shivakumar was caught accepting bribe of Rs.8,000/-. The police after investigation have filed a charge sheet against accused No.1 -Shivakumar as well as against accused No.2, who is the petitioner before this Court.
Learned counsel appearing for the petitioner would submit that the petitioner has not demanded any amount from the complainant; No amount is paid to the complainant and the petitioner could not have been implicated in the proceeding and the charge sheet could not have been filed against the petitioner/accused No.2.
It is the submission of the learned counsel for petitioner that the charge sheet is filed against the petitioner solely on the basis of the statement of the co-accused and it could not have been done.
It is also submitted that the conversation between accused No.1 and the complainant allegedly recorded does not indicate that accused No.2/petitioner also demanded the amount.
Learned counsel appearing for the petitioner would also refer to the statement of the petitioner wherein he has explained the situation and referring to the said statement learned counsel urged that the petitioner was not aware of the transaction between the complainant and accused No.1. Thus, it is urged that the prosecution is wholly untenable as there are no materials against the petitioner.
Learned counsel for respondents No.1 and 2 would submit that the application for survey was pending before accused No.2. Accused No.2 claims that he had taken the assistance of accused No.1 to survey the property as he is inexperienced.
It is the submission of the learned counsel for respondent No.2 that the amount was paid in the private office of accused No.1 and when the amount was paid, accused No.2/petitioner was also present in the private office of accused No.1 and his presence itself would demonstrate that accused No.2/petitioner was also involved in the commission of the said offence. Thus, it is urged that the petition has to be dismissed and there has to be trial against both accused No.1 and accused No.2.
To substantiate the contention, learned counsel for the respondent has also referred to the two judgments of the Apex Court in Narayan Yadav Vs State Of Chattisgarh1 and Hyeoksoo Son Authorised Representative Of Daechange Seat Automotive Pvt. Ltd Vs Moon June Seok And Another 2
The Court has considered the contentions raised and perused the records.
As can be seen from the materials placed before the Court, the conversation is between accused No.1 and the complainant relating to payment of bribe. In the said conversation, there is a reference to petitioner/accused No.2. From the said conversation, it is not possible to arrive at a definite conclusion that the petitioner also demanded the amount from the complainant. However, what is relevant is when the trap was laid, petitioner/accused No.2 was in the private office of accused No.1 and the amount was paid in the said private office.
It is relevant to notice from the statement of accused No.2 that he appears to have kept quiet when amount of Rs.8,000/- was being paid by the complainant to accused No.1. From the said statement, it is not possible to conclude that accused No.2/petitioner protested for such payment. This aspect assumes importance given the admitted factual position that application for survey was pending before accused No.2/petitioner. Even accused No.2/petitioner has stated that he sought assistance of accused No.1 to conduct the survey.
These being the facts, the Court is of the view that matter requires trial to ascertain the truth. Based on the disputed questions of facts right before this Court, the petition cannot be allowed and the proceedings cannot be quashed.
It is also relevant to notice that the alleged incident has taken place in the private office of accused No.1 and presence of accused No.2 in the said private office of accused No.1 is not disputed. The application for survey was admittedly was pending before accused No.2/petitioner. The petitioner claims that he has sought assistance of accused No.1 to measure the property. Under these circumstances, the contentions raised have to be tested in a trial.
For the aforementioned reasons, the petition fails and is accordingly dismissed.
The observations made in this order are only confined to the merits of the petition under Section 482 of the Criminal Procedure Code and not on the merits of the contentions to be raised before the Trial Court.