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2022 DIGILAW 1593 (KAR)

G. N. Annappa Swamy v. State of Karnataka

2022-12-15

RAJENDRA BADAMIKAR

body2022
JUDGMENT Rajendra Badamikar, J. - The petitioner-accused No.21 has filed this petition under Section 438 of Cr.P.C. seeking anticipatory bail in the event of his arrest by the Gubbi Police in Cr.No.157/2022 pending on the file of Senior Civil Judge and JMFC, Gubbi, Tumkuru District in CC No.4207/2022 for the offences punishable under Sections 406, 408, 409, 420, 465 and 468 read with Section 34 IPC. 2. Heard learned Senior counsel appearing for the petitioner and learned SPP-II for the respondent-State. Perused the records. 3. Brief factual matrix leading to the case are that accused No.1-G.H.Satish Kumar was working as Second Division Assistant in Gubbi Taluk Record Room. It is alleged that while he was working as Second Division Assistant, he forged certain documents for the period between 1995 and 2000 by entering the names of the certain persons illegally in the revenue records namely RTC in respect of Government Land. After noticing the same, the complainant, who is Grade-II Tahsildar lodged the complaint against Satish Kumar. During the course of the investigation, accused No.2 who is a Real Estate Broker was arrested by the police and on interrogation, it is found that he has received certain amounts from the present petitioner for creating revenue records in the name of his mother and his sister. 4. It is also alleged that Rs. 3,50,000/- was also transferred in the name of accused No.2 by the petitioner by way of online transaction. Hence, it is alleged that the present petitioner, who is working as a Town Municipal Council President has highhandedly grabbed the government land and hence he was also implicated. Meanwhile, the I.O. completed the investigation and submitted the charge sheet. The allegations against the present petitioner are that neither he nor his family members have cultivated Sy.No.31 of Government land of Yalakatte village. He colluded with accused No.2 and transferred Rs. 3,50,000/-through online banking to him and 4 acres 2 guntas was mutated illegally in the name of his mother and 4 acres was mutated illegally in the name of his sister Shantha. Hence, he was also prosecuted by the I.O., as accused No.21 and is shown to be absconding. The petitioner apprehending his arrest has approached the learned Sessions Judge and his bail petition came to be rejected. Hence, the petitioner is before this Court. 5. Hence, he was also prosecuted by the I.O., as accused No.21 and is shown to be absconding. The petitioner apprehending his arrest has approached the learned Sessions Judge and his bail petition came to be rejected. Hence, the petitioner is before this Court. 5. Learned Senior counsel all along contended that the charge sheet was submitted on 90th day and the petitioner is arraigned as accused No.21 but in any of the remand applications, there are any allegations against him, though it is alleged that accused No.2 was said to have been arrested long back and his confession statement came to be recorded. It is his further contention that the transaction is alleged to be in the name of mother and sister but they were neither arrayed as accused nor witnesses. He would also contend that though the allegation regarding online transfer of Rs. 3,50,000/- to accused No.2, but in fact he has paid Rs. 2,00,000/- to accused No.2 towards brokerage amount pertaining to Real Estate Development Agreement entered into with the owners wherein accused No.2 has acted as a broker towards brokerage charges. He would also contend that the rest of the amount was never transferred by him and the document produced by the petitioner regarding account Statement pertaining to accused No.2 discloses that it was by one Annappa and not by the petitioner and the account details does not tally. He would contend that I.O. did not obtain the account details of the so-called Annappa. He would also contend that if at all the confession statement of accused No.2 was base for implication of the present petitioner, in the first remand itself there should have been reference of the present petitioner but that is not forthcoming and for 21/2 months no steps were taken. It is also alleged that three material documents are said to have been relied upon by the prosecution but they were not part of the investigation records and where these documents are gone is not at all forthcoming. He would also contend that even now the petitioner is ready to undergo interrogation but as his custody is unwarranted. Hence, he would seek for admitting the petitioner on anticipatory bail. 6. He would also contend that even now the petitioner is ready to undergo interrogation but as his custody is unwarranted. Hence, he would seek for admitting the petitioner on anticipatory bail. 6. Per contra, the learned SPP-II would seriously oppose the bail petition contending that he is the Chairman of the Panchayat and considering the enormity of the land grab to an extent of 137 acres involving nine villages, the matter requires a detail investigation and further investigation under Section 173(8) of Cr.P.C. is in progress. He would contend that Rs. 4 lakhs is paid to accused No.2 by the petitioner and the petitioner being an influential person and being a chair person of the Gram Panchayat, there is every possibility of he tampering the prosecution witnesses. Hence, he would seek for rejection of the bail petition. 7. Having heard the arguments on both sides and perusing the records, the allegations of the prosecution in the charge sheet disclose that in Sy.No31 of Yalakatte village, 4 acres 2 guntas was mutated in the name of the mother of the petitioner and 04 acres was mutated in the name of the sister of the petitioner by name Shanta illegally and as a gratification for this he has alleged to have paid Rs. 3,50,000/-. Interestingly, the learned SPP-II has invited the attention of this Court regarding payment to an extent of Rs. 4 lakhs on various dates i.e., Rs. 2 lakhs on 11.01.2022 and Rs. 50,000/- each on four different dates. But, as per the case of the prosecution itself the payment is only to an extent of Rs. 3,50,000/- and not Rs. 4 lakhs. Quite interestingly, the petitioner admits payment of Rs. 2 lakhs to accused No.2 and his contention is that it is a part of brokerage amount in respect of land development agreement entered into by him with other persons. In this context, he has also produced certain documents, which prima facie establish that he had entered into land development agreement with various persons. He has paid Rs. 2 lakhs to accused No.2 on 11.01.2022. It is also borne out from the bank statement pertaining to accused No.2. But, as regards the other four entries of Rs. 50,000/- each as claimed by the prosecution, they does not tally with the name of the present petitioner. He has paid Rs. 2 lakhs to accused No.2 on 11.01.2022. It is also borne out from the bank statement pertaining to accused No.2. But, as regards the other four entries of Rs. 50,000/- each as claimed by the prosecution, they does not tally with the name of the present petitioner. The name of the present petitioner is Annappa Swamy but the four payments of Rs. 50,000/- were in the name of Annappa. Further, the bank account pertaining to the petitioner in respect of transfer dated 11.1.2022 to the tune of Rs. 2 lakhs does not tally with the bank account statement of Annappa in respect of alleged payment of Rs. 50,000/- each. Hence, it is hard to accept the contention of the prosecution that the petitioner has paid Rs. 3,50,000/- or Rs. 4 lakhs as alleged, but he has admitted payment of Rs. 2 lakhs towards brokerage amount and prima facie he has produced the document to substantiate the said contention wherein accused No.2 is also a witness to the transaction. 8. The other allegations of the prosecution is that the enormity of the offence in involvement of nine villages to an extent of 137 acres of Government land. But, as regard the allegations against the present petitioner is only pertaining to 8 acres 2 guntas. It is also submitted by the learned counsel for the petitioner that the petitioner is having brothers, sister, her husband and her relatives, but none of them were targeted and only the petitioner is being targeted in this regard. There is no explanation in this regard by the prosecution. Further, investigation is concluded and charge sheet has already been laid down. No doubt, I.O. has sought leave of this Court to undertake further investigation under Section 173(8) of Cr.P.C. However, permission or leave of the Court is not required and the I.O. is at liberty to further investigate the matter, if he finds any material records in this regard. But, at this juncture, the only allegation against the present petitioner is regarding payment of Rs. 3,50,000/- for getting mutated the name of his mother and sister but no corresponding documents are forthcoming to substantiate this aspect. But, at this juncture, the only allegation against the present petitioner is regarding payment of Rs. 3,50,000/- for getting mutated the name of his mother and sister but no corresponding documents are forthcoming to substantiate this aspect. Apart from that, the implication of the present petitioner is said to be on the basis of the confession statement of accused No.2 alone but the confession statement of accused No.2 was recorded long back and in that event, the name of the petitioner ought to have been found place in the first remand application itself but as many as 11 remand applications were filed on various dates but the name of the petitioner was not shown in any of the remand applications and suddenly while filing the charge sheet, his name was included as accused No.21. The prosecution is not able to explain any of these aspects and to prove the other payments. The I.O. could have obtained the bank statement of so called Annappa to prove that it pertains to the present petitioner himself but that was not done. Even otherwise granting anticipatory bail, the right of interrogation is not taken away by the investigating agency. Looking to these facts and circumstances, in my considered opinion, the petitioner can be admitted on anticipatory bail. The mere fact that he was a Chairman of the Panchayat is not a ground for rejection of bail petition and the allegations of the prosecution itself disclose that the entire matter depends on the documentary evidence. Under such circumstances, question of tampering prosecution witnesses does not arise at all. Hence, the petition needs to be allowed and accordingly, I proceed to pass the following: ORDER The petition is allowed. The petitioner/Accused No.21 is directed to be enlarged on bail in the event of his arrest in Crime No.157/2022 of Gubbi Police Station, registered for the offences punishable under Sections 406, 408, 409, 420, 465, 468 read with 34 IPC on his executing personal bond for a sum of Rs. 2,00,000/- (Rupees two lakhs only) with one surety for the like-sum to the satisfaction of the Investigating Officer or the concerned trial Court, subject to the following conditions: i) Petitioner shall surrender himself before the Investigating Officer within fifteen days from the date of receipt of a certified copy of this order and in the event of surrender, Investigating Officer/SHO shall release them on bail as directed. ii) He shall not directly or indirectly tamper with any of the prosecution witnesses. iii) He shall not indulge in any similar offences. iv) He shall make himself available to the Investigating Officer for interrogation whenever called for during course of investigation. (v) He shall mark his attendance before the Investigating Officer/SHO between 9.00 a.m. and 5.00 p.m. on every first Monday of the month for a period of six months. (vi) He shall not leave the jurisdiction of the Court without prior permission.