JUDGMENT 1. The petitioner is challenging the order passed by the 2nd respondent of the State of Karnataka dated 27-5-2008 on the complaint lodged by one Sri Thotappa Malleshappa Hundekar, a resident of Bagalkot, in holding that the petitioner has committed an offence punishable under Section 177 of IPC and further acting as per the provisions of Section 14 of the Karnataka Lokayukha Act in directing the Registrar, Lokayukta to file a complaint before the jurisdictional Magistrate. 2. The facts leading to this Writ Petition are as hereunder:- According to the Petition averments for the first time he stood as a candidate in the General election held to the Karnataka Legislative Assembly in the month of April, 2004. He was declared as a candidate of Bharatiya Janatha Party and he was permitted to contest the election from Bagalkot Constituency(213) on 30th March, 2004. The last date to file nominations was 31-3-2004 and he was left with hardly a day’s time to file his nomination. It is also his case that as per the provisions of the Representation of People’s Act, 1950 he was required to give various information including his assets and liabilities. In a hurried manner he was compelled to file an affidavit before the Returning Officer. He got elected as a MLA from Bagalkot Constituency in the elections held in April, 2004. In view of the provisions of Section 22 of the Karnataka Lokayukta Act, 1984 the petitioner being a public servant was required to submit his assets & liabilities statement. Accordingly for the year 2004-2005 and 2005-06, he filed his Assets & Liabilities statement in the prescribed Form No. IV. 3. On 21-8-2007 One Thotappa Malleshappa Hunderkar who is a political rival of the petitioner lodged a complaint before the 2nd respondent stating that thee are various omissions in declaring the assets and liabilities by the petitioner before the Returning Officer and before the 2nd respondent and hence sought for an investigation for having furnished a false information under section 22 of the Act. 4. The 2nd respondent after receipt of the complaint from Sri Hundekar sought the comments or the reply of the petitioner and he submitted his reply in detail. 4. The 2nd respondent after receipt of the complaint from Sri Hundekar sought the comments or the reply of the petitioner and he submitted his reply in detail. He contended in the reply that the 2nd respondent has no power to look into the affidavit filed before the Returning Officer under the provisions of the Representation of People’s Act, as he has no jurisdiction over the said issue. However, he submitted his detailed reply, in regard to the variation said to have been noticed by the complainant in regard to the declarations filed by the petitioner before the 2nd respondent under Section 22 of the Act for the years 2004-2005, 2005-2006. According to him, the discrepancy in the assets and liabilities submitted under section 22 of the Karnataka Lokayukta Act, 1984, for these two years is only in regard to non-disclosure of a two wheeler (Scooter) bearing No. KA 29 Q999 which he had purchased in the year 2003 and that he had disclosed his ownership of the Scooter in the first statement of assets and liabilities and the declaration filed for the year 2004-2005. However, by oversight without any intention he had failed to mention the ownership of the Scooter for the subsequent year of declaration, that is for the year 2005-2006. He further disclosed that the ownership of the said Scooter has been reflected in the balance sheet. He further contended that there is no violation of any of the provisions of IPC or of the Lokayukta Act. In the circumstances he requested the 2nd respondent to reject the complaint lodged by Sri Hundekar. 5. The matter was heard by the 2nd respondent. Who held that it would be beyond his purview to look into and compare the affidavit filed by the petitioner before the Returning Officer under the provisions of the Representation of People’s Act and the assets and liabilities declared under Section 22 of the Lokayukta Act. 6. Having held that he would not look into the affidavit filed before the Returning Officer he came to the conclusion that there is a variation in the assets and liabilities filed for the year 2005-2006, since he has omitted to mention the ownership of the two wheeler bearing No. KA-29-Q999 which the petitioner had disclosed for the earlier year of assets and liabilities. 7. 7. The 2nd respondent having held that he would not look into the affidavit filed before the Election Officer, held that there is a discrepancy in regard to the gold owned by the petitioner in the assets and liabilities declared before him and that he had not disclosed availment of the loan from the Government of Karnataka, the purchase of Quallis bearing No. KA29 P4950. On these grounds he came to the conclusion that the petitioner has committed an offence under Section 177 of IPC and acting under Section 14 of the Karnataka Lokayukta Act he passed an order directing the Registrar to lodge a complaint before the jurisdictional Magistrate for the above offence. This is called in question in this Petition. 8. The statement of objections has been filed by the 2nd respondent denying the allegations made in the Petition. Further it is stated that on account of the discrepancy in the assets and liabilities statement by the petitioner, the petitioner has committed an offence under Section 177 of IPC. 9. The State Government has not filed any counter. We have heard Mr. Bajentri, the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the 1st respondent and Mr. Jagadish Patil, the learned counsel appearing for the 2nd respondent. 10. The learned counsel appearing for the petitioner taking us through the complaint lodged by Sri Hundekar and the reply sent by him and the order passed by the 2nd respondent contends that the 2nd respondent has given a finding that he would not look into the affidavit filed by the petitioner before the Returning Officer and therefore he could not have directed the Registrar to lodge a complaint under Section 177 of the IPC as there is no offence committed by the petitioner to initiate criminal proceedings against him. According to him, there is no discrepancy in the assets and liabilities declared by him for the years 2004-2005 and 2005-2006 because the only discrepancy pointed out is non-mentioning of the two wheeler bearing No. KA-29-Q999 since the said vehicle was disclosed immediately after he got elected as MLA for the year 20042005 and for the next year by oversight though in the prescribed form it is not mentioned the balance sheet produced by him discloses his ownership to the vehicle in question. According to him, the petitioner has not acquired any moveable or immoveable property between 2004-2005 and 2005-2006 to hold that there is amassment of wealth and undisclosed income because the two wheeler was of purchased by him in 2003 even prior to contesting for election and the said two wheeler has been declared by him in the assets and liabilities statement submitted by him for 2004-2005. By oversight and inadvertence the same had not been disclosed in the subsequent year of 2005-2006 and the ownership of the Scooter is also disclosed in the balance sheet as the balance sheet was made available to 2nd respondent and of Section 177 of IPC is not attracted. 11. By the impugned order, 2nd respondent has directed that the petitioner has committed an offence under Section 177 of the Indian Penal Code and acting under Section 14 of the Karnataka Lokayukta Act, 1984, Registrar was directed to file a complaint against the petitioner before the jurisdictional Magistrate for the above said offence. Section 177 of IPC reads as hereunder:- “177. Furnishing False information- Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; Or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 12. A perusal of Section 177 of IPC makes it clear that a person who is legally bound to furnish the information furnishes the information as true and fully aggress that he has reasons to believe it to be false then only it amounts to commission of an offence under Section 177 of IPC. A perusal of Section 177 of IPC makes it clear that a person who is legally bound to furnish the information furnishes the information as true and fully aggress that he has reasons to believe it to be false then only it amounts to commission of an offence under Section 177 of IPC. But in the instant case, the petitioner had already disclosed the ownership of a two wheeler bearing No. KA 29 Q 999 in the statement of assets and liabilities furnished for the year 2004-2005 but for the next year though the same is found in the balance sheet, by oversight he has omitted to mention the same in the assets and liabilities declaration submitted under Section 22 of the Act. If there is an omission without any intention or ‘mens rea’ or to suppress the material fact it cannot be considered as an offence under Section 177 of the Act because there was no reason for him to suppress the ownership of the Scooter as the same had been declared in the previous year and for the relevant year the balance sheet discloses the same. Therefore we are of the view that Section 177 of the IPC is not attracted to the facts and circumstances of the case. 13. The entire case made out is that there is a discrepancy with regard to the statement made before the Election Commission and one before the 2nd respondent. Under the circumstances, since there is a discrepancy in mentioning of the assets and liabilities, the complaint was lodged. The 2nd respondent in the impugned order has also noted that there is a discrepancy and that the complainant would have to approach the appropriate authority namely the Election Commission since the said matters do not come within his jurisdiction. The reading of the impugned order would reflect that the case sought to be made out against the petitioner is not for one of furnishing of false information but one of omission. Furnishing of false information is distinct from the omission to give information. The two are distinct and are triable separately. In the instant case, based on the material, we are convinced that no offence under Section 177 arise under any circumstances. 14. In para-11 of the impugned order he has clearly stated that he has no power to look into the affidavit filed before the Returning Officer by the petitioner. The two are distinct and are triable separately. In the instant case, based on the material, we are convinced that no offence under Section 177 arise under any circumstances. 14. In para-11 of the impugned order he has clearly stated that he has no power to look into the affidavit filed before the Returning Officer by the petitioner. But in para-12 & 13 he has discussed the powers conferred on him under Section 22 but unfortunately he has not stated in his order how the mere omission to mention the ownership of a Scooter by the petitioner which was already declared in the previous year and when the balance sheet of the present year disclosed the ownership of the Scooter would constitute an offence under Section 177 of IPC. But unfortunately without discussing those vital issue only on the ground that there is a failure to mention the ownership of the Scooter without considering the background and the facts and circumstances of the case has directed the Registrar to lodge a complaint which according to us the order vitiates for non-application of mind as no offence is committed by the petitioner to prosecute him under Section 177 of IPC. In the circumstances Rule is made absolute. Annexure-F dated 27-5-2008 in Complaint No.COMPL/LOK/BGM/48/2007 ARE-2 is hereby quashed.