TMI Blog2016 (11) TMI 1586X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the petitioner cannot be presumed. Irregularities in allotment of lands - Held that:- This was not a possibility, the allotment of land is not made by the petitioner as is evident from the facts stated. The allotment is made by the SHLCC. Undue influence on various persons including the officials of the KIADB - Held that:- The role of the petitioner does not go beyond the stage of having been a ex-officio member of the SHLCC. The allegation is hence vague and would not lead to framing of any tenable charge. The case of the prosecution is that there were transfer of funds, which were characterized as illegal gratification that was ultimately received by the petitioner through the other accused. The transfer was as a result of a well engineered conspiracy involving two corporate bodies from whose accounts the monies came, namely, Itasca, purportedly represented by Accused no.3 and UTL, represented by accused no.6. Significantly, the said corporate bodies are not named in the charge sheet. This is inexplicable as there is no immunity available to the companies from prosecution, merely because prosecution would be in respect of offences for which punishment prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a separate case. The Managing Director of Itasca had already been named as an accused in Crime no.43/2010. Searches are said to have been carried out in the offices of Itasca and on the basis of information gathered, a search was said to have been carried out on the offices of one M/s Indu Builders Developers, a firm said to be consisting of partners, who were employees of Sowbhagya Petrol Bunk (Accused no.4 5), which was said to be run by the petitioner's wife, the petrol bunk was also said to have been searched and the offices of one M/s United Telecom Company (Hereinafter referred to as 'UTL') was also subjected to search. It was on such investigation, that the Lokayuktha police had filed a charge sheet against the petitioner, his son and others for offences punishable under Sections 7,8, 13(1)(d) read with Section 13(2) of the PC and Sections 419, 420, 465, 468 and 471 read with Section 120-B of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC , for brevity). The case is now registered as Spl.CC no.135/2011. It is the case of the prosecution, that the petitioner and his son were said to be closely associated with Accused no. 3, the Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.1 2 and their associates had proceeded to forge documents and utilized the same to withdraw the compensation amount through M/s Indu Builders and Developers, which was purportedly acting on behalf of land owners in withdrawing the compensation amounts, which ultimately found its way into the hands of the petitioner and his family. It was thus alleged by the prosecution that this was indeed the illegal gratification received from Itasca and UTL. Incidentally, the entire share holding of Itasca was said to have been transferred in favour of one Basavapurnaiah, the Chairman of UTL, Accused no. 6. UTL is said to have funded a total sum of ₹ 317 crore, of which a sum of ₹ 87 crore is said to have been routed through Indu Builders, to the petitioner and his family. As the aforesaid allegations were characterised as a mere theory put forward by the prosecution, in the absence of cogent material to implicate accused no.1, he is said to have filed an application under Section 227 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the CrPC , for brevity), seeking discharge. That application having been rejected, the present petition is filed. 3. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. Namely, the compensation amount paid through the medium of KIADB and the compensation amount paid through UTL, Itasca and Indu Builders and Developers. There is no material produced to demonstrate that even a single land owner had come forward to complain of non-receipt of compensation in respect of the arrangement as between the aforesaid entities and the respective land owners. In any event, the aforementioned arrangement was a private arrangement and could not be characterized as resulting in offences punishable under the provisions of the PC Act. It is contended that in so far as the allegation that the petitioner had committed forgery in seeking to erase the word 'consent' in the draft proceedings of the SHLCC, is concerned, it is asserted that when the final order dated 16-1-2007 would indicate that approval for acquisition had been accorded for acquisition by consent only and not acquisition simpliciter, the said allegation is not sustainable. It is also pointed out by the learned counsel, that the charge sheet would indicate the participation of two legal entities, which were necessarily to be made the accused, namely, Itasca and UTL, two companies incorp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der those cases, that the case against the petitioner and 9 others, in Crime no.57/2010 came to be registered on 1-12-2010, including accused no.3, who was already named as the accused in the case in Crime no. 46/2010. As pointed out by this court in the order in Criminal Petition 5102/2015, the material gathered in the course of investigation in Crime no.42, 43 46 of 2010, was merely transferred to the case against the petitioner in Crime no.57/2010 and there was no fresh material. It is hence contended that the said circumstance would be akin to carrying out a long drawn out investigation before registering a case against the petitioner and this would completely dilute the evidentiary value of the material sought to be used against the petitioner. As the mandatory requirement of registering an FIR , before a detailed investigation is conducted is not followed. It is contended that the very material gathered in the course of investigation in the cases in Crime no.42 to 46/2010 forming the basis for registering the case against the petitioner and others would tantamount to a second FIR being registered on the basis of the same material which was already available in those case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents seized during search conducted in the earlier cases, and not in Crime no.57/2010, formed an opinion that cognizable offences were made out which required registration of an FIR and accordingly the FIR in Crime no. 57/2010 was filed as on 1-12-2010 and thereafter a detailed investigation had been taken up. It is asserted that there is no illegality in material gathered in other cases being considered to unearth the acts of omission and commission on the part of the accused and to prosecute a case independently, as in the present case on hand. It is contended that the effect of the proceedings as against accused no.3 by virtue of the order passed in Criminal petition 5102/2015 would not enable the other accused to plead that the pending case against them could no longer be prosecuted. It is contended that it is evident, prima facie, that the petitioner had acquired lands in the name of his wife even prior to the acquisition proceedings and it was a well engineered conspiracy to acquire the lands for the benefit of Itasca, which was not qualified to secure the same. It was the petitioner who had piloted the application of Itasca on the basis of a false nett worth c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed along with Accused No.3, which applied for allotment of 325 acres of land from KIADB; b) Accused No.2 has got the lands allotted to the name of the Company from the KIADB and paid the initial fees of ₹ 3.00 lakh from his account (Page 94, Para 6 of the Charge sheet and also in Order dated 29.4.2013); c) Accused No.2 has committed forgery in relation to the application for allotment; obtaining consent letters from the land owners; obtaining agreements and other documents from land owners for the same; d) Accused No.2 set up Accused Nos.4 and 5 as partners of M/s Indu Builders Developers, a bogus partnership firm, as a conduit for the payments of money (Page 95, para 9 of the Charge sheet); e) Accused No.2 has committed forgery by appropriating the bearer cheques which were issued in the names of the land owners towards compensation (Page 96, para 14 of the Charge sheet) to the extent of ₹ 47,07,68,000/-; f) Accused No.2 has conspired with other Accused with criminal intention, for the company s project with false promises of higher compensation to land owners. In cases, where the lands owners were ignorant/illiterate, their signatures or LTM (as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holders/owners by keeping them in darkness with the intention of cheating them (Page 96, Para 12 of the Charge Sheet) and also in Order dated 29.4.2013; d) Petitioner/Accused No.9 received payment for repaying his personal loan and some of the amount was paid from M/s Indu Builders Developers (Order dated 29.4.2013); e) Petitioner/Accused No.9 has committed forgery by appropriating the bearer cheques which were issued in the names of the land owners towards compensation (Page 96 , Para 14 of the Charge Sheet); and f) Petitioner/Accused No.9 has obtained various General Power of Attorneys from the land owners to further the criminal intention (Page 154 and 156 of the Charge Sheet Booklet). It is contended that the proceedings against accused no.3 having been quashed by virtue of an order of this court, would have no bearing in so far as the prosecution of Accused no. 9 It is contended that the said accused had filed an application seeking discharge before the trial court which has been dismissed and hence there is no warrant to consider his prayer in the present petition at this stage. As the court below has taken cognizance of the case and of the offences disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to a discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre-trial proceedings against the accused. The order framing charge takes away a very valuable right of the accused. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of Section 397(2) CrPC and such an order is amenable to the supervisory jurisdiction of the court of Session and the High Court under Section 397(1) CrPC. We answer the reference accordingly. It is plain that under Section 227 or 239 CrPC, the jurisdictional court would only examine, prima facie, the material or the allegations to decide to proceed with the trial or to discharge the accused. A primary allegation in the Charge sheet against the petitioner is to the effect that the petitioner has received illegal gratification. In this regard, the material in support of the same and the further narration of the sequence of events, do not indicate a direct demand or receipt of illegal gratification by the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer was as a result of a well engineered conspiracy involving two corporate bodies from whose accounts the monies came, namely, Itasca, purportedly represented by Accused no.3 and UTL , represented by accused no.6. Significantly, the said corporate bodies are not named in the charge sheet. This is inexplicable as there is no immunity available to the companies from prosecution, merely because prosecution would be in respect of offences for which punishment prescribed is mandatory imprisonment and fine. It is also to be kept in view that prosecution, conviction and sentencing are different stages in a criminal trial. The stage for sentencing is reached only after a verdict of guilt is pronounced after a full fledged trial. ( See : Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530. ) Further , a corporate body is an artificial person which acts through its officers. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of accused no.3 being added during the trial under Section 319 CrPC, may not be tenable - for the very material that is now placed before the court below in the form of a charge sheet and which was the subject matter of the order quashing the proceedings against him cannot be used for the purpose of summoning him , as held by the Apex Court in the case of Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. Further, for the reason that the two corporate bodies namely, Itasca and UTL not having been named in the charge sheet as the accused, the theory of conspiracy has no foundation and cannot be sustained against any of the accused. In the result, the petition in Crl.RP 432/2013 is allowed and the order dated 29-4-2013 passed by the court below in Spl.CC no.135/2011, rejecting the application filed by the petitioner under Section 227 CrPC, is set aside and the petitioner - accused no.1 therein is discharged. Further, the petition in Criminal Petition 2313/2016 is allowed and the proceedings pending against the petitioner - accused no.9, before the court below in Spl. CC no.135/2011, in so far as the petitioner is concerned, stands quashed. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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