Law Web: Karnataka HC: In Revision Jurisdiction While Considering Discharge Plea of accused, Court Has To Only See material collected by investigating officer

This Court has already pointed out that the scope of

revision is very limited against the discharge application and the

Court has to consider only the material on record. In the case

on hand, no doubt, the revision petitioner also not disputes that

he made payment of Rs.25 lakhs in favour of daughter of

accused No.1 for getting admission to the M.D. (Pediatric) and

also material is collected by the Investigating Officer that cash

amount of Rs.17,50,000/- was deposited to his individual

account. The contention of the petitioner is that it was his self earned money, but prima facie cash was deposited in his account

and he made the pre-closure of his fixed deposit of

Rs.10,07,192/- and credited the same into his personal account

and he made cash deposit of Rs.9,95,000/- to his personal

account on 24.02.2012 and he got transferred an amount of

Rs.8,05,000/- from the SB account of his wife out of her

accumulated savings to his personal account. The Trial Court

taken note of that she is a house wife. Apart from that, it is the

contention of the learned counsel for the petitioner that the

same is his self-earned money and the same is disclosed in the

income tax returns. The income tax returns does not disclose

the same and all these contentions which have been raised is

nothing but a defence and the same cannot be considered while

considering the discharge application. The judgments which

have been referred supra is clear that the Court cannot conduct

a mini trial and defence cannot be considered in a discharge

application and the Court has to only look into the material

collected by the Investigating Officer whether sufficient material

are there or not. {Para 29}

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL REVISION PETITION NO.118/2024

DR. MOHANKUMAR M Vs STATE OF KARNATAKA,

FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 13(1)(d), 13(1)(e) R/W 13(2) OF PREVENTION OF CORRUPTION ACT AND SECTION 109 OF IPC.

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

DATED THIS THE 20TH DAY OF DECEMBER, 2024

Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

2. This criminal revision petition is filed challenging the

order dated 06.12.2023 passed in Spl.C.C.No.656/2021 rejecting

the discharge application filed by the petitioner.

3. The factual matrix of the case of the prosecution

against this petitioner who has been arraigned as accused No.4

is that he is the friend of accused No.1 and he committed the

offence of abetment in helping accused No.1 to legalize the

illegal amount by making payment of Rs.25 lakhs to pursue M.D.

(Pediatric) of the daughter of accused No.1 Dr. C.Anisha Roy. It

is contended that his father is also a doctor and details are

mentioned at page No.73 Volume 24 of the charge sheet. The

petitioner has filed an application contending that he had made

the payment of Rs.25 lakhs in favour of daughter of accused

No.1. The specific allegation against the petitioner is that he has

deposited cash amount of Rs.17,50,000/- to his individual

account and the account was standing in the name of himself

and his wife Smt. Lalitha, UCO Bank, Banashankari Branch. He

made the pre-closure of his fixed deposit for Rs.10,07,192/- and

credited the same into his personal account and he made cash

deposit of Rs.9,95,000/- to his personal account on 24.02.2012.

On 25.02.2012 he got transferred an amount of Rs.8,50,000/-

from the SB account of his wife out of her accumulated savings

to the personal account of himself and closing balance in his

account was Rs.30,56,185/-. The petitioner did not dispute the

payment of Rs.25,00,000/- in favour of daughter of accused

No.1, but his contention is that the amount paid by him is his

personal amount and he can spend, lend it to any person and

dispose of it as he desires and it would not attract the offence

under Section 109 of IPC nor it amounts to an abetment under

the Prevention of Corruption Act.

4. The Trial Court having considered the material

available on record comes to the conclusion that the petitioner

not disputes the fact that he made the payment and comes to

the conclusion that sudden deposit of Rs.17,50,000/- by this

accused in cash on 21.03.2012 to his account and further

deposit of Rs.9,95,000/- in cash on 24.02.2012, in all a huge

sum of Rs.27,45,500/- is not bearing any explanation. He also

got transferred an amount of Rs.8,05,000/- to his personal

account on 25.02.2012 from the account of his wife which is a

huge amount and she is a housewife. In the absence of

convincing reasons gives rise to serious suspicion and hence not

accepted the contention of the petitioner to discharge and

rejected the same. Hence, the present criminal revision petition

is filed before this Court.

5. The main contention of the petitioner is that he is a

doctor and accused No.1 approached him for financial assistance

for his daughter to pursue M.D. (Pediatric) at M.S. Ramaiah

Medical College, Bengaluru and he deposited the amount on

22.03.2012 by way of RTGS. Merely because he extended

financial help to the daughter of accused No.1 for higher

education, it cannot be said with any stretch of imagination that

the petitioner has abetted the offences under Sections 13(1)(d),

13(1)(e) read with 13(2) of Prevention of Corruption Act and

Section 109 of IPC and payment is made directly to the

institution through their bank account. The learned counsel

contend that the said amount is the self earned money of the

petitioner and the same is reflected in the bank accounts and

income tax returns. The petitioner never received any money

from accused No.1 and it will not attract Section 109 of IPC. The

petitioner has been falsely implicated in the case and the said

amount has been shown by the petitioner in his income tax

returns, who is also a doctor by profession. The learned counsel

contend that the Trial Court accepted the reasons given by

accused Nos.3 and 5. This petitioner is also placed similarly as

that of accused Nos.3 and 5, but the Trial Court committed an

error in rejecting the discharge application of the petitioner and

hence it requires interference of this Court.

6. The learned counsel in support of his arguments

produced the document of agreement of sale dated 03.12.2004

and 22.07.2011, bank statement, income tax returns, statement

of fixed deposit and statement showing the source of income.

The learned counsel also relied upon the order passed by this

Court in W.P.No.4416/2022 dated 31.05.2024, wherein the

proceedings initiated against accused No.1 is quashed. The

learned counsel contend that when the case filed against

accused No.1 is quashed, this petitioner cannot be tried. The

learned counsel relied upon the judgment of the Apex Court in

the case of V.Y. JOSE AND ANOTHER v. STATE OF GUJARAT

AND ANOTHER reported in (2009) 3 SCC 78, wherein in

paragraph No.20 it is held that the proceedings before the Trial

Court cannot survive in view of quashing the charge sheet

against the main accused who is a public servant. The petitioner

is not a public servant, as such the case against him does not

survive as an abettor as the prime accused proceedings are

quashed.

7. The learned counsel relied upon the judgment of the

Apex Court in the case of GANGULA MOHAN REDDY v. STATE

OF ANDHRA PRADESH reported in (2010) 1 SCC 750 and

brought to the notice of this Court paragraph Nos.10, 17 and 18,

wherein the proceedings against the prime accused No.1 stands

quashed by the High Court, abetment of the very case gets

automatically nullified.

8. The learned counsel also relied upon the judgment of

the Apex Court in the case of NOORUL HUDA MAQBOOL

AHMED v. RAM DEO TYAGI AND OTHERS reported in (2011)

7 SCC 95 and brought to the notice of this Court paragraph

No.38 regarding three conditions as narrated is not fulfilled as

contemplated under Section 107 of IPC, the proceedings against

the petitioner does not survive.

9. The learned counsel also relied upon the judgment of

the Apex Court in the case of FAGUNA KANTA NATH v. THE

STATE OF ASSAM reported in AIR 1959 SC 673 and brought

to the notice of this Court paragraph No.6, wherein it is held that

when the main accused in the Prevention of Corruption Act is

acquitted, conviction against the abettor does not survive.

10. The learned counsel also relied on the judgment of

the Apex Court in the case of EX-SEPOY HARADHAN

CHAKRABARTY v. UNION OF INDIA AND ANOTHER reported

in AIR 1990 SC 1210 and brought to the notice of this Court

paragraph No.9 wherein the main accused who is a Government

servant came to be quashed, case against the others does not

survive.

11. The learned counsel also relied on

W.P.No.16081/2024 dated 03.09.2024, wherein accused No.1 is

a Government servant raided by the Enforcement Directorate

and charge sheeted for the offences punishable under Sections

13(d), 13(2) of PC Act and accused No.1 preferred the petition

under Section 482 of Cr.P.C and the same has been quashed.

12. Referring these judgments the learned counsel would

contend that the proceedings cannot be continued against this

petitioner.

13. Per contra, the learned counsel for the respondent

State would contend that the material clearly discloses that the

petitioner made the payment of Rs.25 lakhs and also brought to

the notice of this Court the documents i.e., statement of

account, Income Tax Returns Form and statement of the

petitioner, wherein it is clear that amount was deposited

suddenly in the account of the petitioner and not disclosed in the

income tax returns for having made the payment. The accused

statement was also recorded and the income of the petitioner

declared in the income tax returns is maximum Rs.8 lakhs per

year and there is no explanation on the part of the petitioner for

having deposited the amount of Rs.17,50,000/- and

Rs.9,95,000/- to his account. The learned counsel contend that

even though the proceedings against accused No.1 is quashed,

SLP is filed and the same is pending for consideration. The

learned counsel contend that even in respect of case of L.C.

Nagaraja, which was quashed by this Court in

W.P.No.1325/2022, which has been relied upon by the learned

counsel for the petitioner, the same has been set aside by the

Apex Court and hence there cannot be any discharge.

14. The learned counsel in support of his arguments

would vehemently contend that the scope of discharge

application is very limited and defence cannot be urged while

seeking for discharge and the Court has to take note of the

material available on record. The learned counsel also relied

upon the order passed by the Apex Court in Crl.Diary

No.37568/2023 in a case of appeal filed by the State against

L.C.Nagaraj and brought to the notice of this Court paragraph

No.6 wherein it is observed that whether the properties

mentioned in the source report are secured with legitimate

income of the respondent or his wife, is something which is to be

considered by the police and the Trial Court while evaluating the

evidence. The High Court in our opinion, should not have

conducted a mini trial to conclude in favour of the accused when

the investigation is still not complete and set aside the order.

15. The learned counsel also brought to the notice of this

Court the judgment of the Apex Court in the case of STATE OF

TELANGANA v. MANAGIPET ALIAS MANGIPET

SARVESHWAR REDDY reported in (2019) 19 SCC 87 and

brought to the notice of this Court paragraph Nos.32 and 33,

wherein discussion was made with regard to the preliminary

enquiry is to be conducted and the object of preliminary enquiry

and in paragraph No.33 it is held that once the officer recording

the FIR is satisfied with such disclosure, he can proceed against

the accused even without conducting any enquiry or by any

other manner on the basis of the credible information received

by him. It cannot be said that the FIR is liable to be quashed for

the reason that the preliminary enquiry was not conducted.

16. The learned counsel also relied upon the judgment of

the Apex Court in the case of CENTRAL BUREAU OF

INVESTIGATION AND ANOTHER v. THOMMANDRU

HANNAH VIJAYALAKSHMI AND ANOTHER reported in

(2021) 18 SCC 135 and brought to the notice of this Court

paragraph Nos.25, 26, 54 and 64. In paragraph No.25

discussion was made with regard to an enquiry and with regard

to the judgment of Lalitha Kumari case. The learned counsel

brought to the notice of this Court paragraph Nos.54 and 64 with

regard to the known sources of income within the meaning of

Section 13(1)(e) of the PC Act and in paragraph No.64

discussion was made that during the course of investigation

about 140 witnesses have been examined and over 500

documents have been obtained and investigation is stated to be

at an advanced stage and is likely to conclude within a period of

two to three months.

17. Having heard the learned counsel for the petitioner

and the learned counsel for the respondent and also taking note

of the grounds urged in the revision petition, the points that

arise for the consideration of this Court are:

(i) Whether the Trial Court committed an error in

dismissing the application filed by the

petitioner for discharge and whether it requires

interference of this Court?

(ii) What order?

18. Having heard the learned counsel for the respective

parties and also on perusal of the material on record, this

petitioner is arraigned as accused No.4. It is not in dispute that

he is a friend of accused No.1 and the allegation made against

the petitioner is that he committed the offence of abetment in

helping accused No.1 to legalize the illegal amount by making

payment of Rs.25 lakhs to pursue M.D. (Pediatric) of the

daughter of accused No.1. The petitioner contended in the

petition that his father is also a doctor. He made the payment of

Rs.25 lakhs out of his income which has been declared in his

income tax returns. He also not disputes that he deposited the

amount on 22.03.2012 by way of RTGS. The main contention of

the petitioner is that merely because he extended the financial

help to the daughter of accused No.1 for higher education, it

cannot be said with any stretch of imagination that the petitioner

has abetted the offences under Sections 13(1)(d), 13(1)(e) read

with 13(2) of Prevention of Corruption Act and Section 109 of

IPC. It is also his case that it is his self-earned money and the

same is reflected in the bank accounts and income tax returns.

The same will not attract Section 109 of IPC. The learned

counsel for the petitioner relied upon the judgments of the Apex

Court in the case of V.Y. Jose (supra) and in the case of

Gangula Mohan Reddy (supra) and contend that when the

case was quashed against accused No.1 by the High Court,

abetment of the very case gets automatically nullified.

19. On the other hand, the learned counsel for the

respondent contend that the order of quashing of proceedings

against accused No.1 is challenged before the Apex Court and

the same is not yet considered on merits. When such being the

case, the principles laid down in the judgments referred supra

relied upon by the learned counsel for the petitioner will not

come to the aid of the petitioner. The learned counsel also relied

upon the judgment of the Apex Court in the case of Managipet

Alias Mangipet Sarveshwar Reddy (supra), wherein

discussion was made with regard to preliminary enquiry is to be

conducted and the object of preliminary enquiry and in

paragraph No.33 it is held that once the officer recording the FIR

is satisfied with such disclosure, he can proceed against the

accused even without conducting any enquiry or by any other

manner on the basis of the credible information received by him.

20. The learned counsel also brought to the notice of this

Court the judgment passed by the Apex Court in the case of

Central Bureau of Investigation (supra) wherein it is

discussed with regard to an enquiry and with regard to the

judgment of Lalitha Kumari case and with regard to the known

sources of income within the meaning of Section 13(1)(e) of the

PC Act and in paragraph No.64 discussion was made that during

the course of investigation about 140 witnesses have been

examined and over 500 documents have been obtained and

investigation is stated to be at an advanced stage and is likely to

conclude within a period of two to three months.

21. In the case on hand, investigation has already been

completed and charge sheet is also filed. The petitioner also

approached earlier for quashing of the proceedings and the same

was rejected and thereafter he filed an application for discharge

and the same was also rejected.

22. The learned counsel for the respondent also relied

upon the judgment of the Apex Court in the case of STATE OF

RAJASTHAN v. ASHOK KUMAR KASHYAP reported in (2021)

11 SCC 191 and brought to the notice of this Court paragraph

No.13, wherein discussion was made with regard to the High

Court has exceeded in its jurisdiction in exercise of the revisional

jurisdiction and has acted beyond the scope of 227/239 of

Cr.P.C. While discharging the accused, the High Court has gone

into the merits of the case and has considered whether on the

basis of the material on record, the accused is likely to be

convicted or not. The learned counsel also brought to the notice

of this Court paragraph No.14, wherein it is categorically held

that at the stage of framing of the charge, it has to be seen

whether or not a prima facie case is made out and the defence of

the accused is not to be considered. In paragraph No.15, an

observation is made that the High Court was required to

consider whether a prima facie case has been made out or not

and whether the accused is required to be further tried or not.

At the stage of framing of the charge and/or considering the

discharge application, the mini trial is not permissible.

23. The learned counsel referring this judgment would

contend that the Trial Court has given the reasoning while

rejecting the same. The said judgment is very clear with regard

to the scope of exercising of the discharge application.

24. The learned counsel for the respondent also relied

upon the judgment of the Apex Court in the case of STATE OF

GUJARAT v. DILIPSINH KISHORSINH RAO reported in 2023

SCC Online SC 1294, and brought to the notice of this Court

paragraph No.14, wherein discussed with regard to the judgment

of the Apex Court in the case of Amit Kapoor v. Ramesh

Chandra reported in (2012) 9 SCC 460 with regard to the

principles laid down to be considered for exercise of jurisdiction

under Section 397 particularly in the context of prayer for

quashing of charge framed under Section 228 of Cr.P.C. Another

very significant caution that the Courts have to observe is that it

cannot examine the facts, evidence and materials on record to

determine whether there is sufficient material on the basis of

which the case would end in a conviction; the Court is concerned

primarily with the allegations taken as a whole whether they will

constitute an offence and, if so, is it an abuse of the process of

Court leading to injustice. Quashing of a charge is an exception

to the rule of continuous prosecution. Where the offence is even

broadly satisfied, the Court should be more inclined to permit

continuation of prosecution rather than its quashing at that initial

stage. It is also observed that the Revisional Court cannot sit as

an appellate Court and start appreciating the evidence by finding

out inconsistency in the statement of witnesses and it is not

legally permissible. The learned counsel referring this judgment

would contend that the scope of revision is very limited.

25. The learned counsel also relied upon the judgment of

the Apex Court in the case of STATE OF TAMIL NADU v. N.

SURESH RAJAN AND OTHERS reported in (2014) 11 SCC

709, wherein discussion was made with regard to scope of

Sections 227, 228, 239 and 240 of Cr.P.C. In paragraph No.32.3

it is held that while passing the order of discharge, the fact that

the accused other than the two Ministers have been assessed to

income tax and paid income tax cannot be relied upon to

discharge the accused persons particularly in view of the

allegation made by the prosecution that there was no separate

income to amass such huge properties. In paragraph No.32.4, it

is held that we are of the opinion that this was not the stage

where the Court should have appraised the evidence and

discharged the accused as if it was passing an order of acquittal.

26. The learned counsel also relied upon the judgment of

the Apex Court in the case of STATE OF TAMIL NADU v. R.

SOUNDIRARASU AND OTHERS reported in (2023) 6 SCC

768 and brought to the notice of this Court paragraph No.17.4

wherein an observation is made that as no prima facie case

could be said to have been made out against the accused

persons, they deserve to be discharged from the prosecution in

exercise of revisional powers meant for doing substantial justice.

In paragraph No.81 it is held that the High Court has acted

completely beyond the settled parameters, as discussed above,

which govern the power to discharge the accused from the

prosecution. The High Court could be said to have donned the

role of a Chartered Accountant. The High Court has completely

ignored that it was not at the stage of trial or considering an

appeal against a verdict in a trial.

27. Having considered the principles laid down in the

judgments referred supra, it is very clear that the scope of

revision is very limited and only the Court has to consider the

material collected by the Investigation Officer, whether the same

is sufficient or not.

28. The learned counsel for the petitioner relied upon the

judgment of the Apex Court in the case of DHARIWAL

TOBACCO PRODUCTS LIMITED AND OTHERS v. STATE OF

MAHARASHTRA AND ANOTHER reported in (2009) 2 SCC

370 with regard to the scope of Section 482 of Cr.P.C. and also

observation is made that only because a revision petition is

maintainable, the same by itself, in our considered opinion,

would not constitute a bar for entertaining an application under

Section 482 of Cr.P.C. Even where a revision application is

barred, as for example the remedy by way of Section 115 of the

Code of Civil Procedure, 1908 this Court has held that the

remedies under Articles 226/227 of the Constitution of India

would be available. There is no dispute with regard to the scope

is concerned, but here is a revision petition filed against the

rejection of the discharge application and the principles laid

down in the judgment need not necessarily be applied to the

case on hand.

29. This Court has already pointed out that the scope of