P.V.Sampath Kumar vs State By Karnataka Lokayukta Police

The present revision petition is filed by the accused/petitioners to set aside the Order dated 31.05.2016 passed by the Principal District and Sessions

Judge, Chickballapur in P.C.A.C.C. No.5/2015 and consequently to discharge them from the offences punishable under Section 13(1)(d)(e)(i)(ii)(iii)

r/w. Section 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as ‘the Act’ for brevity].

I have heard the learned counsel for the petitioners Sri. P.N.Hegde and Sri. Venkatesh S.Arabatti, learned Special Public Prosecutor, appearing for

the respondent.

The brief facts of the case are that;

On 04.08.2014, the Deputy Superintendent of Police attached to Karnataka Lokayukta Police, Chickballapur Division, received a credible information

that some officials of the Commercial Tax Department are indulged in illegally collecting money at the check-post situated at National Highway No.7

from the drivers and the owners of the vehicles without imposing fine or collecting tax from them, thereby allowing them to ply their vehicles. In this

regard, a case was registered in Crime No.9/2014 of Lokayukta Police Station, Chickballapur, for the offences punishable under Section 13(1)(d)(e)(i)

(ii)(iii) r/w. Section 13(2) of the Act.

After registration of the case and obtaining necessary permission, raid was conducted on 05.08.2014 at 5.00 a.m. When the raiding party verified the

cash declaration form and made personal search of the officials of the department at the spot, it was found that petitioner No.1 was in possession of

Rs.1,790/- as against the declaration of Rs.990/- made by him. Similarly, petitioner No.2 was found in possession of a sum of Rs.2,270/- as against the

declaration of Rs.1,100/-made by him. After completion of the investigation, charge-sheet was filed against the aforesaid officials for the offences

punishable under Section 13(1)(d)(e)(i)(ii)(iii) r/w. Section 13(2) of the Act.

The accused/petitioners filed an application before the Special Court, seeking discharge from the case. The learned Judge by an Order dated

31.05.2016 was pleased to reject the said application. Consequently, proceeded to frame charges against the petitioners.

Being aggrieved by the aforesaid order passed by the Court below, the petitioners are before this Court in this revision petition.

The learned counsel appearing for the petitioners would vehemently contend that except the official witnesses and panch witnesses, the statements

of independent witnesses are not recorded during the course of investigation. He submits that none of the ingredients of Section 13(1)(d)(e)(i)(ii)(iii)

r/w. Section 13(2) of the Act are made out. There is no complaint either from the drivers or the owners of the vehicles against any officials of the

Commercial Tax Department much less against the petitioners herein. It is also submitted that there is no allegation of demand or acceptance and the

petitioners herein have given satisfactory explanation with regard to the excess money found in their possession stating that out of the sale of

‘Police Flags’ they had received the said amount, which was in their possession. He submits that there are no incriminating material collected

against the petitioners to proceed against them and accordingly, seeks to discharge the petitioners.

The learned counsel for the petitioners in support of his arguments relied on the decisions of the Hon’ble Apex Court reported in AIR 2013

SUPREME COURT 48 in the case of C.K.JAFFER SHARIEF VS. STATE.

The learned Special Public Prosecutor on the other hand submitted that there is a prima facie case made out against the petitioners and the Court

below having considered the material on record has rightly proceeded to frame charges against them for the offence punishable under Section 13(1)

(d)(e)(i)(ii)(iii) r/w. Section 13(2) of the Act. He further submits that the petitioners have not given any satisfactory explanation and if at all their

explanation is to be accepted, then the same can be considered during the course of trial and not at this stage. He submits that the ingredients of the

offences are made out against the petitioners and therefore, they are not entitled for an order of discharge.

It is the case of the prosecution that on receiving a credible information that certain officials of the Commercial Tax Department are indulged in

illegally collecting money from the drivers and owners of the lorry at the check-post situated at National Highway No.7, a raid was conducted after

registration of a case for the offence under Section 13(1)(d)(e)(i)(ii)(iii) r/w. Section 13(2) of the Act and during the raid, accused/petitioners were

found in their possession excess amount than the amount they declared in the register. The explanation given by the petitioners are that they were

given some ‘Police Flags’ to sell and they had in their possession the amount which was collected after selling the said flags.

The accused/petitioners were working as Second Division Assistants in the Office of the Joint Commissioner of Commercial Taxes. Admittedly,

they are public servants. At the time of raid conducted on 05.08.2014 at 5.00 a.m., the accused were found in their possession excess amount than the

amount they had declared in the register. Accused No.1 was found an excess amount of Rs.800/- and accused No.2 was found with him an excess

amount of Rs.1,170/-. The said amount is alleged to have been collected by them from the drivers and owners of the vehicles illegally by misusing their

official position. The explanation given by the petitioners is that the said excess amount which was in their possession was on account of sale of some

‘Police Flags’. However, the said petitioners who are the officials are required to disclose even the said amount at the time of reporting for duty

and it should have been reflected in the register. The said explanation offered by the accused therefore, cannot be accepted at this stage. The cash

has been seized under a mahazar in the presence of panch witnesses. If any person is in possession or has, at any time during the period of his office,

been in possession of pecuniary resources or property disproportionate to his known sources of income and if the said public servant cannot

satisfactorily account, then the same amounts to an offence under Section 13(1)(e) of the Act. At this stage, it cannot be said that the petitioners have

not committed the offence charge sheeted against them.

The decision relied on the learned counsel for the petitioners in the case of C.K.JAFFER SHARIEF VS. STATE [supra] is not applicable to the

facts of the present case. The facts in the said case are entirely different, wherein the appellant during the tenure as a Union Minister was alleged to

have dishonestly approved the journeys of certain persons to go abroad in connection with the medical treatment. It was alleged that two Public Sector

Undertakings did not have any pending business in London at the relevant point of time and the journeys undertaken by the said persons were solely at

the behest of the appellant who had compelled the services of the concerned employees. The Hon’ble Apex Court after observing that it is the

conduct and action of the appellant which may have been improper or contrary to departmental norms, but, it is not correct to say that the same was

created by a dishonest intention to obtain an undue pecuniary advantage and accordingly, quashed the proceedings. The Hon’ble Apex Court

observed that dishonest intention is the gist of the offence under Section 13(1)(d) of the Act, is implicit in the words used i.e., corrupt or illegal means

and abuse of position as a public servant. As noted supra, the facts of the present case are entirely different and there is prima facie material against

the petitioners to proceed against them.

In the case of STATE OF TAMIL NADU BY INSPECTOR OF POLICE VIGILANCE AND ANTI-CORRUPTION VS. N.SURESH RAJAN

AND OTHERS reported in (2014)11 SUPREME COURT CASES 7it0 9is held that no mini trial is contemplated at the stage of deciding discharge

application. Only probative value of materials has to be gone into to see if there is a prima facie case for proceeding against the accused. It is also

brought to the notice of the Court that the charges are already framed and the trial is in progress.

In view of the discussion made above, I see no illegality in the order passed by the trial Court. Accordingly, the revision petition is dismissed.

The observations made herein is confined to the disposal of the present revision petition and shall not in any way affect or prejudice the case of the

defence.