Bangalore District Court
Cbi/Acb/Blr vs A1 S Velmurgan on 17 April, 2025
KABC010027402021
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND PRINCIPAL SPECIAL
JUDGE FOR CBI CASES, BENGALURU (CCH-4)
Dated this the day of 17th day of April, 2025.
PRESENT: SRI. SHRIDHAR GOPALAKRISHNA BHAT
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Spl.C.C.No.69/2021
Complainant : CBI/ACB, BENGALURU
(By Sri.B.R.Shivanand Perla,
Senior Public Prosecutor)
Vs
Accused 1: Sri. S. Velmurugan,
The then Deputy General Manager,
HR Rotary Wing Research and
Design Centre,
Hindustan Aeronautics Ltd.,
Presently posted as Sr.Manager at
HAL, TAD, Kanpur, (UP).
2: Sri. Binish Thomas,
R/o. B-4, 418, Malaprabha Block,
National Games Village,
Koramangala,
Bengaluru.
(A.1 By Sri.Praveen S.Reddy, Advocate)
(A.2 By Sri.S.V.Vadavadagi, Advocate)
***
2 Spl.CC.69/2021
Date of commission of offence 15.06.2015 to 25.02.2020
Date of report of offence 27.08.2020
Date of arrest of accused Nos.1 The accused Nos.1 and 2 were
and 2 not arrested
Date of release of accused on -
bail
Total period of custody -
Name of the complainant Sri. I. Mohanlal, AGM(HR),
Legal and Estate, HAL,
Bengaluru
Date of commencement of 13.02.2024
recording evidence
Date of closing of evidence 09.01.2025
Offences complained of Section 120-B, 420 r/w 120-B
of the Indian Penal Code and
the offence U/Sec.13(1)(d)
punishable under Section
13(2) of the Prevention of
Corruption Act.
Opinion of the Judge The accused Nos.1 and 2 are
acquitted of all the charges
leveled against them.
JUDGMENT
CW.23-Smt. Suman Saini, the Inspector of Police,
Central Bureau of Investigation (‘CBI’ in short), Anti
Corruption Branch, (‘ACB’ in short) Bengaluru, has filed
the charge-sheet against the accused persons alleging the
commission of the offences punishable under sections
120B, 420 read with 120B of the Indian Penal Code (‘IPC‘
in short) and the offence under Section 13(1)(d)
punishable under Section 13(2) of the Prevention of
Corruption Act (‘PC Act‘ in short) (as amended in 2018.)
2. The facts of the prosecution case in nutshell
are as under :
2a. The accused No.1 – Sri. S. Velmurugan who
was working as public servant in the capacity of Deputy
3 Spl.CC.69/2021
General Manager (HR), Rotary Wing and Research Design
Center (RWRDC in short), Hindustan Aeronautical
Limited (HAL in short), Bengaluru., during the period
from 15.06.2015 to 03.12.2018 conspired with accused
No.2- Sri. Binish Thomas a private person and director of
Amagiah Builders and Developers Pvt. Ltd., in order to
cheat the M/s.Evehans Academy, Bengaluru, in the
matter of leasing out of HAL land measuring about 6.5
acres situated in Doddanakundi opposite to ISRO
Complex in favour of M/s.Evehans Academy, Bengaluru
which was looking for a land to set-up a Training
Institution in Aerospace and other Engineering Courses.
In furtherance of the said conspiracy accused No.1 had
met Sri.K.C.Samuel, Chairman of M/s.Evehans Academy,
Bengaluru through accused No.2, in the year 2017.
Sri.K.C.Samuel through letter dated 19.04.2017
addressed to accused No.1 requested for providing 6
acres of land on lease to start State of the Art approved
Training Institution in the Aerospace and other
Engineering courses. In pursuance of the same accused
No.1 wrote a letter dated 21.04.2017 addressed to
M/s.Evehans Academy stating that the land situated at
Doddanakundi Village opposite of ISRO Complex may be
suitable for the proposed purpose and asked
Sri.K.C.Samuel to arrange for Rs.50,00,000/- towards
payment of advance deposit to HAL for lease processing.
Accordingly, Sri.K.C.Samuel had arranged for
Rs.50,00,000/- in cash and paid to accused No.2 as per
the instruction of accused No.1 at the residence of
Sri.P.J.Jacob.
4 Spl.CC.69/2021
2b. It is further case of the prosecution that
accused No.1 issued another letter dated 08.05.2017 to
the Chairman of M/s. Evehans Academy stating that his
request has been considered by the Competent Authority
and 6.5 acres of land situated in Doddanakundi opposite
to ISRO Complex is provisionally allotted for
M/s.Evehans Academy Institutional purpose. Further,
accused No.1 along with accused No.2 showed the piece
of land to Sri.K.C.Samuel as proposed to be leased to
M/s.Evehans Academy. Accused No.1 asked
Sri.K.C.Samuel to arrange further amount of
Rs.25,00,000/- on 10.05.2017 for advance deposit. On
the same day the accused No.1 and 2 visited the office of
Sri.K.C.Samuel at Marathahalli and received
Rs.25,00,000/- as advanced deposit. Thereafter,
Rs.10,00,000/- was handed over to one Sri. Jikku
Joseph the relative of accused No.2 as per the
instruction of accused No.1, in the office of
Sri.K.C.Samuel. Thereafter, accused No.1 issued another
letter dated 19.06.2017 addressed to the Chairman of
M/s.Evehans Academy, Bengaluru requesting
Sri.K.C.Samuel to present the draft deed and supporting
documents to the Registrar as the registration formalities
of the land is proposed between 27.06.2017 to
29.06.2017. For that accused No.1 visited the office of
M/s.Evehans Academy along with accused No.2 and
received Rs.40,00,000/- in cash from Sri.K.C.Samuel for
the further advance deposit of lease.
5 Spl.CC.69/2021
2c. It is further stated that again on 09.07.2017
accused No.1 took Sri.N.Satyanarayana the
Administrative Officer and Sri.Sajjad Rahim, the Director
and Trainer of M/s Evehans Academy for site visit near
Marathahalli Market of HAL, Old Airport Road, where
accused No.2 was also present, as backup land if the
land situated at ISRO Complex is not found suitable.
After the said visit accused No.1 further asked for
advance deposit of Rs.5 Lakhs from Sri.Satyanarayana.
On the same day evening Sri.Jikku Joseph visited the
office of M/s.Evehans Academy at Marathahalli and
received cash of Rs.5 lakhs handed over by
Sri.Satyanarayana as per the instruction of
Sri.K.C.Samuel. Thus, accused No.1 and 2 in furtherance
of their conspiracy to cheat the M/s.Evehans Academy
induced Sri.K.C.Samuel dishonestly and received Rs.1.30
Crores in the name of due deposit to HAL for lease of land
and thereafter failed to provide the land on lease and also
to repay the amount received and thereby caused
wrongful loss to Sri.K.C.Samuel, Chairman of
M/s.Evehans Academy and thereby committed the
offence under Section 120-B and Section 420 r/w Section
120-B of IPC.
2d. It is further case of the prosecution that the
accused No.1 being a public servant working as DGM
(HR), RWRDC, HAL, Bengaluru during the above said
period had abused his official position and
unauthorizedly promised Sri. K.C. Samuel, Chairman of
M/s Evehans Academy, Bengaluru, to lease out HAL land
6 Spl.CC.69/2021
measuring about 6.5 acres without approval of the
Competent Authority and by corrupt and illegal means
obtained for himself and for accused No.2 total amount of
Rs.1.30 crores from Sri.K.C Samuel, Chairman of the
M/s Evehans Academy in the pretext of due deposit to
HAL for lease of land and thereby committed the offence
under Section 13(1) (d) punishable under Section 13(2) of
the PC Act -1988.
2e. With regard to the above subject, after
internal investigation, CW.1 Sri. I. Mohanlal, the Addl.
General Manager (HR), Legal and Estate, HAL,
Vimanapura, Bengaluru, had filed First Information
Statement dated 17.08.2020 as per Ex.P.1 along with
prior approval for investigation issued by the competent
authority under Section 17A of the PC Act (Amended) as
per Ex.P.2 to CW.22-the Superintendent of Police,
CBI/ACB/Bengaluru. On the basis of the said First
Information Statement, CW.22 registered the case in
RC.No.08(A)/2020/CBI/ACB/BLR against the accused
No.1 and unknown public servants and private persons
on 27.08.2020 as per Ex.P.71. Thereafter, the
investigation was ordered to be conducted by CW.23- the
Police Inspector, CBI/ACB/Bengaluru, who conducted
the entire investigation and filed the charge-sheet against
the accused No.1 and 2 for the aforesaid offences as the
investigation revealed the commission of the said
offences. It is also stated that since, accused No.1 is the
public servant, the Investigation Officer had secured the
sanction as required under section 19(1) of the PC Act to
7 Spl.CC.69/2021
prosecute the accused No.1 from the Chairman and
Managing Director of HAL, Bengaluru, who was the
Sanctioning Authority.
3. Taking Cognizance, Issuance of summons,
Appearance of the Accused, Compliance of Section 207 of
the Cr.P.C., and Framing of Charge:
3a. After filing of the charge-sheet cognizance of
the offences was taken by this Court by order dated
22.01.2021 and summons was ordered to be issued
against the accused persons.
3b. In pursuant to the summons issued to
accused No.1 and 2 appeared before this court with their
counsels and enlarged on bail. The copy of the charge
sheet and its enclosures were furnished to the accused
No.1 and 2 as required under Section 207 Cr.P.C. The
accused persons have filed application under Section 227
of Cr.P.C seeking their discharge. The said applications
were dismissed by this court by order dated 30.06.2023.
Thereafter, charges were framed against accused No.1
and 2 for the offences punishable under Section 120-B,
read with Section 420 IPC and offence punishable under
Section 13(2) read with 13(1) (d) of the PC Act-1988, for
which the accused did not plead guilty and claimed to be
tried.
4. Prosecution side evidence:
4a. In order to prove the case of the prosecution,
the I.O has cited 28 witnesses in all in the list of
8 Spl.CC.69/2021witnesses and additional witnesses annexed to the
charge-sheet. However, the prosecution has examined in
all 15 witness as PWs.1 to PW.15 including addl. witness
whose name is not shown in the charge-sheet and given-
up other witnesses. The prosecution has got marked as
many as documents 70 documents through witnesses as
per Ex.P.1 to Ex.P.58 and Ex.P.60 to Ex.P.71 and five
documents were marked with the consent of Ld.
Counsels for the accused as per Ex.P.59 and Ex.P.72 to
75 and thereby the prosecution has closed its evidence.
5. The prosecution evidence in gist is described
as under;
Prosecu Charge Person Evidence regarding Exhibits
tion - Sheet examined marked.
Witness witne-
No. ss No.
PW.1 CW.1 Sri.I. Mohan Lodging of the First Ex.P.1 to
Lal. Information Statement, P.4, P.1(a) to
working of accused No.1, P3(a).
receiving of complaint by
Vigilance Department of
HAL from PW.5, receiving
of complaint from PW.10
by the General Manager,
HAL, conducting of detail
enquiry by Vigilance
Department, HAL and
production of Land
Management Policy of
HAL.
PW.2 CW.4 Sri. G. Furnishing of certain Ex.P.5 to
Venkateswar documents to the IO and P.11 and
a Rao identifying the same and P.5(a), 10(a)
regarding factual aspects. and 11(a)
PW.3 CW.3 Sri.C.K.Manj Furnishing of certain Ex.P.12 to
unath documents to IO and P.15, 12(a)
lodging of complaint by and 14(a)
PW.5 against accused
No.1.
PW.4 CW.5 Sri.Renjith.R Conducting of internal Ex.16, 17,
investigation/ 17(a)
9 Spl.CC.69/2021
Departmental Enquiry
against A.1 and production
of Investigation Report to
I.O.
PW.5 CW.2 Sri. K.C Entire factual aspects and Ex.P.18 to
Samuel steps taken 53, 15(a),
19(a), 20(a)
24(a), 25(a),
28(a), 40(a),
41(a), 41(a-
1) 42(a),
43(a),
52(a), 53(a),
53(a-1)
PW.6 CW.8 Smt. Production of documents Ex.P.54 to
Sheela.D to I.O, working of A.1 and 58
identifying his signature Ex.P.56(a) to
58(a)
PW.7 CW.6 Sri. P.J Arrangement of Rs.50 —
Jacob Lakhs and payment of the
same to PW.5 and in turn
to accused No.2, promise
made by A.2 to repay the
amount.
PW.8 CW.7 Sri. Sajjad Visiting of spot along with -
Rahim PW.10 and presence of
accused No.1 and 2 at the
spot.
PW.9 CW.10 Smt. Handing over the cover Ex.P. 21(a)
Sowmya.R addressed to A.1 by PW.5
and issuance of
acknowledgment.
PW.10 CW.9 Sri. N Visiting of site with PW.5, --
Satyanaraya visiting of alternative site
na along with PW.8, payment
of Rs.5 Lakhs to accused
No.1, handing over of letter
to PW.9, meeting with
Sri.G.V Rao, the General
Manager, HAL and
payment of Rs.1.30 Crores
to accused No.1 and 2 etc.
PW.11 CW.13 Sri. Rahul Furnishing of account Ex.P.60 to
S.M Nair statement, account 62
opening Form relating of
account of accused No.2.
PW.12 CW.15 Sri. P. Evidence regarding Ex.P.22(b)
Ravindran decoding of Whatsapp and 23(b)
chats of PW.5 and
proceedings regarding
10 Spl.CC.69/2021
PW.13 CW.19 Sri. Search in the house of Ex.P.63,
Rajkumar accused No.1 and seizing 63(a) and
Bhole of documents 64, 64(a)
PW.14 Addl. Sri.Rajagopa Grant of prosecution Ex.P.65 to
Witnes lan sanction against accused 68, 65(a)
s Madhavan No.1
PW.15 CW.23 Smt.Suman Registration of FIR, Ex.P.69,
Saini Investigation conducted, 69(a), 70,
and filing of charge-sheet. 51(a), 52(b),
71, 71(a)
6. Recording of 313 statement and defence
evidence:
6a. After closing of the prosecution side evidence
statement of the accused persons as required under
Section 313 of the Cr.P.C is recorded. The accused have
denied the incriminating evidence found in the
prosecution side evidence. In addition to that, the
accused have also filed written statement as provided
Under Section 313(5) of Cr.P.C., and produced certain
documents in support of their contentions.
6b. In the written statement, accused No.1
contended that he is innocent of the alleged offences and
has not committed any offence as alleged. Further, he is
neither acquainted nor had any personal interaction with
PW.5 Sri.K.C.Samuel. He was the Deputy General
Manager (HR) of RWRDC Department and not in-charge
of Facility Management Division at the time of alleged
crime. Further, he has not signed the documents
produced by the prosecution as per Ex.P.18 to P.20. He
being a law abiding citizen and diligent officer, registered
two complaints dated 21.09.2017 before the HAL Police
11 Spl.CC.69/2021Station in NCR No.953/2017 and before the Assistant
Commissioner of Police, HAL. He has also made efforts
by written communication dated 22.09.2017 seeking to
find out the source of drafting and printing of Ex.P.18 to
P.20. It is further stated by him that he had not handed
over Ex.P.18 to P.20 letters and had not received any
amount from PW.5. Further, he is not familiar with
alleged 6.5 acres of land situated at Doddanakundi
opposite of ISRO Complex proposed to be leased to
M/s.Evehans Academy and the prosecution has also not
produced any material to identify the said land. Further,
the whatsapp conversation between himself and PW.5
produced by the prosecution does not reveal any
improprieties or trace of illegal transaction or
professional misconduct by him. The statement of PW.5
is filled with inconsistencies. Further, the search of his
residence did not reveal the presence of any
disproportionate asset or any other incriminating
material in respect of the allegations made against him.
He is falsely implicated in this case and accordingly
prayed for his acquittal.
6c. The accused No.2, in addition to the denial of
prosecution case, in his written statement, admitted as to
his acquaintance with accused No.1 as well as PW.5 in
his capacity as member of National Commission for
Minority Educational Institution (NCMEI) and
introducing them each other. He denied his involvement
in the deal of HAL property contending that for no
reasons PW.5 wantonly, falsely implicated him in this
12 Spl.CC.69/2021
case assuming that he was with accused No.1. In fact, in
the early of 2016, he was diagnosed with Leukemia and
he was mentally and physically distressed. He was in
need of money for continued treatment and he had taken
hand loan of Rs.10 lakhs from PW.5 and later, the same
was returned to him.
6d. In his written statement, accused No.2 has
denied the receipt of money from Sri.P.J.Jacob and visit
of the spot as put up by the prosecution. Further, the
complainant Police, without carrying any preliminary
enquiry on the false complaint of the HAL authorities
foisted false case against him. PW.5 falsified the matter
and set a concocted story of his involvement in this case
alleging conspiracy with accused No.1 and cheated him
to the tune of Rs.1.30 Crores etc., It is further stated
that PW.5 Sri.K.C.Samuel, taking his helpless condition
on account of the serious illness, brought pressure
through Police and at the call of the Police, he got five
signed cheques forcibly from him though he was not in
due of any amount in his favour stating that he will be
set free from the case. Since cheques were taken forcibly,
he filed complaint with the Police about use of criminal
course and forcibly taking the signed cheques from him
and as a matter of caution, immediately he informed the
Bank for stop payment. PW.5 had fabricated the said
cheques and filled up the amount and thereafter filed 5
criminal cases under Section 138 of the NI Act, before the
Additional CMM Court, Mayo Hall Unit, Bengaluru, in
CC.No.55899/2018, CC.No.55901/2018, CC.No.55902/2018,
13 Spl.CC.69/2021
CC.No.57184/2018 and CC.No.58183/2018. The said
cases were dismissed for non-prosecution on 18.12.2022
and PW.5 has not taken any further steps in the said
matters. Further, PW.5 ought to have given the
satisfactory account of source of amount alleged to be
paid to him. In fact, after demonetization order, issued
by the Government of India on 06.11.2016, there was no
scope to withdraw an amount of above Rs.5 lakhs from
the Bank at once and there is no evidence to show that
amount was withdrawn from the account of M/s.Evehans
Academy or by Sri.P.J.Jacob. PW.5 had chosen a corrupt
way to fabricate the whatsapp message in his own style
to suit his false story and manipulated edited fabricated
document in WORD format to suit is convenience. The
IO has filed a false charge sheet against him in collusion
with PW.5 by knitting the facts. He is innocent of the
alleged offences and accordingly, prayed for his acquittal.
6e. Though the accused have filed their written
statements as stated above, they have not opted to place
any evidence on their behalf and hence, there is no
defence evidence.
7. Argument.
7a. Heard the argument of the Ld. Sr. Public
Prosecutor and the learned counsels for the accused. The
learned counsel for the accused No.1 has also filed
synopsis of arguments with copy of two documents and
one citation. Similarly, the learned counsel for accused
14 Spl.CC.69/2021
No.2 has also filed synopsis of written arguments with
citation memo.
7b. Submission of the learned Senior Public
Prosecutor: The learned Senior Public Prosecutor
Sri.B.R.Shivanand Perla, vehemently argued that accused
No.1 being the Deputy General Manager (HR) RWRDC, at
the relevant point of time was the public servant and
sanction under Section 19(1)(c) of the PC Act, as per
Ex.P.65 was taken to prosecute him. The contents of
Ex.P.65 and evidence of the sanctioning authority i.e.,
PW.14 prove the valid prosecution sanction against
accused No.1. The accused No.1 has not disputed the
authority/ capacity of PW.14, being Chairman and
Managing Director of HAL to issue sanction order against
him. In that regard, the prosecution has produced
Ex.P.68, the Appendix to HAL CDA Rules, 1984, which
reveals that the Chairman and Managing Director (CMD)
is the Disciplinary Authority in respect of Grade VII and
VIII Officers of the HAL and accused No.1 was Grade VII
officer at the relevant point of time. However, the accused
has disputed the sanction order on the ground of non-
application of mind and non-consideration of certain
facts while granting the sanction order. Though the
learned counsel for accused No.1 cross-examined PW.14,
nothing much was elicited from his mouth so as to
negate the validity of the prosecution sanction. The
evidence of PW.14 and the contents of sanction order
clearly reveal as to granting of prosecution sanction after
due consideration of the materials placed before him by
15 Spl.CC.69/2021
the IO. The evidence of PW.14 clearly reveal that after
considering the entire charge sheet materials placed by
the IO, having prima-facie satisfied as to commission of
the offence by accused No.1, PW.14 had granted sanction
order. Though PW.14, during this cross-examination
stated as to non-seeing of documents regarding
arrangement made by PW.5 to pay the amount to the
accused No.1 and any document regarding payment
made by him to accused No.1, that will not take away the
validity of the prosecution sanction. Even, the suggestion
put to the mouth of PW.14 on behalf of accused No.1
reveals the consideration of the records submitted by the
IO by PW.14 while granting prosecution sanction. Hence,
the evidence of PW.14 and Ex.P.65 and Ex.P.68 clearly
establish the valid prosecution sanction issued by PW.14
and thereby, the prosecution has proved valid sanction.
7c. The learned Senior Public Prosecutor
explained the facts of the prosecution case in detail and
also brought to the notice of this court with regard to
undisputed facts which can be gathered from evidence
placed before this court. It is meticulously submitted by
him that the evidence of PW.5, who is the victim, PW.7, 8
and 10 clearly establish how the accused No.1 and 2
made false promise to PW.5 and their conduct to induce
PW.5 dishonestly and fraudulently and thereby delivery
of Rs.1.30 Crores by PW.5 in favour of accused Nos.1 and
2. Relying on the evidence of PW.1 to PW.4 and 6, PW.9
submitted that their evidence support the case of the
prosecution as to factual aspects stated by PW.5.
16 Spl.CC.69/2021
7d. The learned Senior Public Prosecutor having
conceded the fact that there is no documentary evidence
as to payment of Rs.1.30 Crores in favour of the accused
contended that, the said amount was paid in cash at the
instance of the accused themselves to avoid any proof of
payment. There is clear oral evidence to support the case
of the prosecution and there are no reasons to disbelieve
the evidence of the prosecution witnesses which clearly
establish the conspiracy between accused Nos.1 and 2 in
the matter of cheating PW.5 and receiving of Rs.1.30
Crores from PW.5 by them. He has also relied upon
Ex.P.29 Sale Deed and Ex.P.30 to P.39 cheques and
Ex.P.23 and P.53, the whatsapp chats to support the
prosecution version. The accused No.1 had given original
Sale Deed and accused No.2 had issued cheques as
security for the amount received. If the amount was not
received, there was no necessity for accused No.1 to
handover the original Sale Deed and cheques by accused
No.2. The said fact clearly support the prosecution case.
The learned Senior Public Prosecutor has taken notice of
this court on entire oral and documentary evidence
placed by the prosecution contending that the said
evidence clearly establish the charges framed against the
accused persons. It is also vehemently submitted that
the accused No.1 being the public servant, colluding with
accused No.2, by abusing his official position, cheated
PW.5 and thereby dishonestly and fraudulently obtained
pecuniary advantage and committed the offence. The
Departmental Enquiry Report as per Ex.P.17 is also
against accused No.1 and major penalty was imposed on
17 Spl.CC.69/2021
him as per Ex.P.14. It is also submitted by him that there
are minor contradictions in the evidence of the
prosecution witnesses which is natural and that cannot
be a ground for suspecting the prosecution case, unless
the contradiction is in respect of the material particulars.
It is also submitted by him that the complaint need not
contain all ingredients of the offences alleged in verbatim.
The facts stated in the complaint, if constitute the
offence, that itself suffice. The evidence placed before the
court by the prosecution proves the guilt of the accused
beyond reasonable doubt. Accordingly, on these grounds,
urged for conviction of the accused persons.
7e. The learned Senior Public Prosecutor has also
filed a memo with copy of the HAL Conduct, Discipline
and Appeal Rules, 1984 and copies of the FIR in
Cr.No.4/2021 registered by Fatorda Police Station, Goa
against accused No.2 and another FIR in Cr.No.505/2023
registered by HAL Police Station against accused No.1
and 2 and others.
7f. He has also relied upon the following citations
in support of his arguments.
i. (1999) 5 SCC 740 Sri. Bhagwan
Samardha Sreepada Vallabha
Venkata Vishwan Andha Maharaj
Vs. State of AP and Others.
ii. AIR 1967 SC 752 Bhakshish Singh
Dhaliwal Vs. The State of Punjab
iii. AIR 1967 SC 986 Shivanarayan
Kabra Vs. State of Madras.
18 Spl.CC.69/2021
iv. (1998) 1 SCC 550 Nilgiris Bharat
Association Vs. T.K.Mahalingam
and Anr.
v. (1999) 3 SCC 259 Rajesh Bajaj Vs.
State NCT of Delhi & Others.
vi. Supreme Court Crl.A.No.1438/2011
Rajendra @ Rajappa & Ors Vs. State
of Karnataka.
8. The argument of the learned counsel for accused
No.1:
8a. Sri. Praveen S.Reddy, the learned counsel for
accused No.1 vehemently argued contending that though
the prosecution has produced sanction order as per
Ex.P.65, the evidence of PW.14 reveals that he has not
considered relevant documents at the time of issuance of
sanction order. In that regard, he has taken notice of
this court with regard to evidence of PW.14 during his
cross-examination. The learned counsel fairly submitted
that accused No.1 is a public servant and he has not
disputed/ denied the authority of PW.14 to grant the
prosecution sanction. However, the evidence reveals that
PW.14 has not considered the relevant material
documents and thereby, without application of mind,
granted the prosecution sanction, which is not valid.
8b. The learned counsel further vehemently
submitted that the prosecution has alleged receipt of
Rs.1.30 Crores by accused persons, but no documents
are produced to show the alleged payment made. In that
regard, there is improvisation in the evidence of PW.5. In
19 Spl.CC.69/2021this regard, the learned counsel has taken notice of this
court with regard to contents of Ex.P.15 and also
evidence of PW.5. It is further submitted by him that the
only interested witnesses are examined and no materials
are placed to show the payment made. The prosecution
has failed to place any material before this court to show
the source for payment of alleged huge amount of Rs.1.30
Crores to the accused. No documents are produced to
show that PW.5 was authorized to make payment on
behalf of M/s.Evehans Academy.
8c. The learned counsel vehemently contended that
Rule 7 of the Karnataka Societies Rules, 1961 stipulates
as to filing of annual returns before the Registrar of
Societies, in respect of all financial transactions of the
society. Therefore, each financial transaction has to be
maintained by the society and has to be submitted to the
Registrar of the Societies. But, the prosecution has not
produced any such documents so as to prove the
financial transaction/ payment alleged to be made by
PW.5 on behalf of M/s. Evehans Academy in favour of
accused for getting the land of HAL. Absolutely no
documents are produced to show the alleged payment by
PW.5. It is highly improbable to believe the payment of
huge amount of Rs.1.30 Crores in cash without any
document. Further, Section 269 ST of Income Tax Act,
prohibits cash transaction above Rs.2.00 lakhs in respect
of single transaction. Hence, the alleged payment of
Rs.1.30 Crores cannot be accepted. The learned counsel
has also taken notice of this court on the evidence of
20 Spl.CC.69/2021
prosecution witnesses highlighting the various
inconsistencies found in their evidence.
8d. It is further argument of the learned counsel
that the materials placed before the court do not
establish the meeting of PW.5 with accused No.1 at HAL.
No documents are produced to show that PW.5 had
visited HAL so as to meet the accused No.1. There are
discrepancies in the evidence of PW.5 and statement
given by him in that regard. Further, admittedly, the
accused No.1 is not the authorized person to lease the
land of the HAL. The demand drafts produced before this
court as per Ex.P.44 to P.48 cannot be considered that
they were purchased for the purpose of registration as
stated by PW.5 in the light of contents of Ex.P.20 and the
date of the DDs produced. Further, admittedly, Ex.P.18
to P.20 were not signed by the accused No.1 and no
investigation was made with regard to source of the
letter-heads, from which printer/ computer of the HAL,
the said letters were taken out. There is no evidence to
link the accused No.1 with Ex.P.18 to P.20 letter-heads
and the said letters were used by him.
8e. It is also vehemently submitted that the
prosecution has failed to prove the identity of the land
proposed to be leased and the said property belongs to
HAL. It is unbelievable to accept that huge amount of
Rs.1.30 Cores was given in respect of such unidentified
property, without verifying the title documents. The
entire materials placed before the court are analyzed,
they reveal that even no proper investigation was
21 Spl.CC.69/2021
conducted by the IO. The accused No.1 is implicated in
this case, though he has not committed any offence.
Ex.P.29 Sale Deed of the accused No.1 was actually lost
and the same was mis-used by PW.5 to link him in this
case. Even, accused No.1 has filed complaint before the
Basavanagudi P.S., in that regard. Further, the Ex.P.17
itself reveals that accused No.1 had even taken action
with regard to misuse of letter-head of HAL by filing a
Police complaint in that regard.
8f. It is also vehemently argued by the learned
counsel for the accused No.1 that there is inordinate
delay in filing the complaint by PW.5 before the HAL
Vigilance. PW.5 has not filed any complaint before the
Police. The complaint filed as per Ex.P.15 lacks material
details and even the same is contrary to the case of the
prosecution. The only omnibus allegations were made
which are not proved with clear evidence. The accused
has specifically denied the charges leveled against him
and entire burden is on the prosecution to prove the
charges leveled against the accused. But, the evidence
placed before the court are looked into, they indicate
various discrepancies and there is no linking chain of
circumstantial evidence so as to establish the guilt of the
accused. The prosecution has failed to to establish the
ingredients of any offence alleged against accused No.1
beyond reasonable doubt. Accordingly, prayed for
acquittal of the accused No.1. The learned counsel has
relied upon the decision of the Hon’ble Supreme Court
22 Spl.CC.69/2021
reported in AIR 2023 SC 330 in the case between Neeraj
Dutta Vs. State (Government of N.C.T. of Delhi)
9. The submission of learned counsel for accused
No.2 :
9a. Sri.S.V.Vadavadagi, the learned counsel for
accused No.2 vehemently argued that the accused No.2 is
alleged to have committed the offence punishable under
Section 120B and 420 of the IPC and Rs.1.30 Crores was
alleged to be delivered by PW.5 in favour of accused No.2.
The said allegation has to be proved by the prosecution
beyond reasonable doubt. It is further submitted by him
that only PW.5, PW.7, PW.8 and PW.10 are the material
witnesses of the prosecution to prove the alleged payment
made. But, all the said witnesses are interested
witnesses. No independent witnesses were examined in
that regard. The learned counsel has taken notice of this
court on the entire evidence of the said witnesses
contending that their evidence is not sufficient to prove
the payment of the alleged amount of Rs.1.30 Crores, as
put up by the prosecution. The learned counsel has also
brought various inconsistencies and discrepancies in
their evidence. He has also vehemently argued as to non-
production of any document as to payment of the alleged
amount.
9b. It is further argument of the learned counsel
that admittedly, M/s.Evehans Academy is the registered
society and the land was alleged to be sought for the
benefit of the said society. But, no official correspondence
for getting the land on lease is produced. The IO has not
23 Spl.CC.69/2021seized any such official correspondence from
M/s.Evehans Academy Society. Further, no documents
are produced to show the payment of Rs.1.30 Crores
from M/s.Evehans Academy Society and the IO has also
not made any efforts to get the documents in that regard
from the Academy which is bound to maintain the
Accounts and Registers as to financial transactions of the
said Academy. It clearly appears that the IO has entirely
based his investigation only on Ex.P.17, Departmental
Enquiry Report and filed charge sheet without
conducting proper investigation. The IO has not
investigated as to on what basis, such huge amount of
cash was given and whether the same was permissible.
The IO has not investigated as to letter dated 19.04.2017
alleged to be given by PW.5, from which place the said
letter was forwarded, who received the said letter in HAL
and not collected the relevant documents in that regard.
Further, the IO has not investigated as to where Ex.P.18
to P.20 were generated, when and from where they were
forwarded from HAL and when and where the said letters
were received.
9c. The learned counsel, relying on the oral
evidence of the prosecution witnesses, vehemently argued
that their evidence is not sufficient to prove the alleged
payment of Rs.1.30 Crores. The learned counsel has also
brought to the notice of this court as to non-examination
of material witnesses by name Sri.Punnoose M., who
stated to have introduced accused No.2 to PW.5 and also
one Sri.Jikku Joseph, who stated to have received Rs.15
24 Spl.CC.69/2021
lakhs out of Rs.1.30 Crores and whose cheques were also
stated to be given in favour of PW.5 as per Ex.P.35 to
P.39. Further, the DD of Rs.9.36 lakhs was not seized
and no documents are produced as to drawing of DD for
the said amount. Further, no investigation was made as
to which property was first shown and what property was
shown for the second time. The IO has not conducted
any panchanama with regard to the place stated to be
shown as property to be leased. No document is produced
as to identity, title of the said property. No letter
correspondence with regard to property visit was secured
or investigated.
9d. The learned counsel further meticulously
argued stating that Ex.P.23, the whatsapp chats
produced by the prosecution cannot be accepted, as
there is every chance of altering the contents. Section
65(B) Certificate produced along with the whatsapp chats
is also not in consonance with requirement of Section
65(B) of the Indian Evidence Act. He has also brought to
the notice of this court as to non-seizing of the mobile of
PW.5 when the whatsapp chats stated to be taken. As
per Ex.P.75, the mobile of PW.5 was seized on 20.07.2021
and whereas, the whatsapp chats recovery proceeding
was conducted on 11.09.2020 as found in Ex.P.22. It is
further submitted that the IO has not taken steps to get
the screen shots of the whatsapp chats and its hash
value. Simply, stated to have e-mailed the whatsapp
chats and thereafter, e-mailed whatsapp chats print out
was taken. Such being the case, there is every possibility
25 Spl.CC.69/2021
of tampering of whatsapp chats and Ex.P.23 whatsapp
chats printout cannot be accepted as it has lost its
authenticity and accuracy. The IO has not complied with
required legal formalities and the seized mobile of PW.5 is
also not placed before this court. Ex.P.26 CDR contains
only Ex.P.23 and P.24. Ex.P.24 does not disclose any
incriminating circumstances against the accused No.2.
9e. The learned counsel for accused No.2 further
meticulously argued contending that Ex.P.35 to P.39 are
the cheques stated to be issued by Sri.Jikku Joseph for
Rs.1.95 Crores in favour of PW.5, but absolutely, there is
no investigation, as to why the said cheques were taken,
what was the role of Sri.Jikku Joseph in the transaction.
Even, PW.5 has also not disclosed anything in that
regard. Further, PW.5 has suppressed the material facts.
Though the cheques of accused No.2 were produced as
per Ex.P.30 to P.34, PW.5 has not stated anything as to
what has happened to the said cheques. In this regard,
the learned counsel has taken notice of this court with
regard to 5 PCRs filed by PW.10 on behalf of PW.5, which
are later dismissed for non-prosecution on 08.12.2022.
The IO has not conducted any investigation in respect of
the said aspect also. The learned counsel has also taken
notice of this court with regard to the statement of PW.5
recorded under Section 164(5) of the Cr.P.C., to show the
inconsistency in that regard. It is further argued as to
non-production of any documents relating to DD amount
of Rs.43,80,000/- and only story is created to make
believe the case of the prosecution. The evidence
26 Spl.CC.69/2021
produced before the court on behalf of the prosecution
does not reveal the source of money alleged to be paid
and so also the delivery of the said amount in favour of
the accused as alleged. It is also submitted by the
learned counsel that PW.7 is examined only to help PW.5
and there is no required evidence as to source of Rs.50
lakhs paid by him and whether the said amount was
repaid to him. Similarly, evidence of PW.8 and PW.10 also
serves no much purpose of the prosecution and all these
witnesses are interested witnesses, being close associates
of PW.5.
9f. The learned counsel further vehemently argued
that the prosecution case is hypothetical. After thought
vague allegations were made. No ingredients of the
offences are made out by the prosecution. The
investigation is also totally defective. The prosecution
has failed to prove the guilt of the accused beyond
reasonable doubt. Accordingly prayed for acquittal of the
accused. The learned counsel has also relied upon
following decision of the Hon’ble Supreme Court to
buttress his arguments.
i. Judgment dated 12.02.2024 in
Crl.A.No.1162/2011 in the case of
Mallappa and Others Vs. State of
Karnataka.
ii. 2015 (10) SCC 152 P.Sathyanarayana
Murthy Vs. The Dist. Inspector of Police
and another.
iii. Judgment dated 03.03.2023 in
Crl.A.No.211/2023 in the case of
Premchand Vs. State of Maharashtra.
27 Spl.CC.69/2021
10. Points for Determination : On bestowing careful
thoughts to the argument canvassed, rulings relied and
carefully scrutinizing the oral and documentary evidence
produced before this court, the point that would arise for
consideration are :
1. Whether the prosecution proves the
valid sanction to prosecute the
accused No.1 as required under
Section 19 of the PC Act ?
2. Whether the prosecution further
proves that the accused No.1- Sri.S.
Velmurugan who was working as
public servant in the capacity of
Deputy General Manger (HR),
RWRDC, HAL, Bengaluru., during
the period from 15.06.2015 to
03.12.2018 conspired with accused
No.2-Binish Thomas to cheat the
M/s.Evehans Academy, Bengaluru
in the matter of leasing of of HAL
land measuring about 6.5 acres
situated in Doddnakundi, opposite
to ISRO Complex to M/s Evehans
Academy, Bengaluru and
fraudulently induced Sri.K.C.Samuel
the Chairman of the M/s Evehans
Academy to deliver a sum of Rs.1.30
crores in that regard on different
dates and received the said amount
in the name of due deposit to HAL
28 Spl.CC.69/2021for the lease of HAL land and
thereafter failed to provide the land
as promised and also failed to repay
the amount received and thereby
caused wrongful loss to Sri. K.C.
Samuel the Chairman of M/s
Evehans Academy and obtained
pecuniary advantage for themselves
and thereby committed the offences
punishable under Section 120B and
Section 420 read with Section 120B
of IPC?
3. Whether the prosecution further
proves that the accused No.1 being
a public servant working as DGM
(HR), RWRDC, HAL, Bengaluru
during the above said period had
abused his official position as such
and unauthorizedly promised Sri.
K.C. Samuel, Chairman of M/s
Evehans Academy, Bengaluru, to
lease out the HAL land measuring
about 6.5 acres without approval of
the Competent Authority and by
corrupt and illegal means obtained
for himself and for accused No.2
total amount of Rs.1.30 crores from
Sri.K.C.Samuel, Chairman of the
M/s Evehans Academy in the
29 Spl.CC.69/2021pretext of due deposit to HAL for
lease of land and thereby committed
the offence under Section 13(1) (d)
punishable under Section 13(2) of
the PC Act -1988 ?
4. What order ?
11. The above points are answered as under :-
Point No.1: In the affirmative
Point No.2: In the negative.
Point No.3: In the negative.
Point No.4 : As per the final order
for the following ;
REASONS
12. Point No.1: Admittedly, the accused No.1, was
working as Deputy General Manager (HR) RWRDC, HAL,
Bengaluru during the period from 15.06.2015 to
03.12.2018 and thereby, he was a Public Servant within
the meaning of Section 2(c) of the PC Act and there is no
dispute in that regard. It is pertinent to note that at the
time of argument, the learned Senior Public Prosecutor
has brought to the notice of this court that the
Departmental Enquiry was conducted against the
accused No.1 and he was given with major penalty by
reducing his rank from Deputy General Manager (Grade
VII to Senior Manager Grade V) with lower scale of pay
and thereafter, he was transferred to Kanpur. These
aspects are not in dispute. Admittedly, the accused No.1
was a public servant as on the date of filing of the charge
sheet by IO as well as on the date of taking cognizance
30 Spl.CC.69/2021
against him. It is specifically stated in the charge sheet
that since the accused No.1 is a public servant, the
sanction as contemplated under Section 19 of the PC Act
was taken from the competent authority to prosecute
him.
13. It is needless to say that, it is for the
prosecution to show that it has obtained valid sanction
as required under Section 19 of the PC Act, so as to
prosecute the accused No.1 for the alleged offences.
Similarly, it is also incumbent on the prosecution to
prove that valid sanction has been granted by the
sanctioning authority after having prima-facie satisfied as
to the case of the prosecution with regard to commission
of the offence. This process can be established by the
prosecution by producing the original sanction order,
which contains the facts constituting the offence and
grounds of satisfaction and also by adducing the evidence
of the author of the sanction order.
14. In the case of State of Maharashtra through
CBI Vs. Mahesh G. Jain, reported in (2013) 8 SCC 119,
the Hon’ble Supreme Court has held that “an order of
sanction should not be construed in a pedantic manner
and there should not be a hyper technical approach to test
its validity. When there is an order of sanction by the
competent authority indicating the application of mind, the
same should not be lightly dealt with. The flimsy
technicalities cannot be allowed to become tools in the
hands of the accused”.
31 Spl.CC.69/2021
15. In another decision of the Supreme Court, in
the case of CBI Vs. Ashok Kumar Agarwal 2014 (4) SCC
295, it is held that, “the prosecution has to satisfy the
court that at the time of sending the matter for grant of
sanction by the competent authority, adequate material for
such grant was made available to the said authority. This
may be evident from the sanction order, in case, it is not
extremely comprehensive as well as facts and
circumstances of the case may be spelt out in the sanction
order. However, in every individual case, the court has to
find out whether there has been an application of mind on
the part of the sanctioning authority concerned on the
material placed before it”.
16. In the case of Subramanyaswamy Vs. Dr.
Manmohan Singh, reported in (2012) 3 SCC 64, it is held
that “the grant or refusal of the sanction is not a quasi
judicial function, what is required to be seen by the
competent authority is whether the facts placed before it
by investigation agency prima-facie disclose the
commission of the offence by the public servant. If the
competent authority satisfied that the material placed
before it is sufficient for prosecution of the public servant,
then, it is required to grant the sanction. If the satisfaction
of the competent authority is otherwise, then, it can refuse
the sanction. The competent authority cannot undertake a
detailed inquiry to decide whether or not the allegation
made against the public servant are true”.
17. Further, in the case of C.S.Krishna Murthy Vs.
State of Karnataka, the Hon’ble Apex Court held that;
32 Spl.CC.69/2021
“therefore, the ratio is sanction order should speak for
itself and in case, facts do not so appear, it should be
proved by leading evidence that all the particulars were
placed before the sanctioning authority for due application
of mind. In case, the sanction speaks for itself, then, the
satisfaction of the sanctioning authority is apparent by
reading the order”. It is further observed by the Hon’ble
Supreme Court that, “it is no doubt true that the sanction
is necessary for every prosecution of the public servant,
this safeguard is against the frivolous prosecution against
the public servant from harassment. But, the sanction
should not be taken as a shield to protect corrupt and
dishonest public servant.”
18. In the light of the above principles, this court
has to examine the evidence produced by the
prosecution. In this context, in order to prove the factum
of valid sanction, the prosecution has relied upon the
evidence of PW.14 Sri. Rajagopalan Madhavan, the
sanctioning authority and Ex.P.65 the sanction order
dated 03.12.2020 issued by PW.14 and also Ex.P.68
Appendix-I to the HAL CDA Rules, 1984. In this regard,
it is pertinent to note that the capacity of PW.14 to grant
sanction is not in dispute. The only contention of the
accused is that the sanctioning authority has not
considered the required materials and not applied its
mind for issuance of sanction order as per Ex.P.65 and
thereby the sanction order produced is not valid.
19. PW.14, in the capacity of Chairman and
Managing Director of HAL, had issued the sanction order
33 Spl.CC.69/2021
as per Ex.P.65, being the competent authority. On going
through the evidence on record, it is clear that the
accused No.1 has not disputed the capacity/ authority of
PW.14 to grant the prosecution sanction order to
prosecute him. Further, Ex.P.68 produced on behalf of
the prosecution is analyzed, it clearly reveals that the
Chairman-cum-Managing Director (CMD) is the
Disciplinary Authority in respect of the Officers of Grade
VII and VIII of HAL. Admittedly, the accused No.1, being
the Deputy General Manager (HR) RWRDC of HAL is
Grade VII Officer to whom PW.14 is the Disciplinary
Authority. Therefore, there is no dispute that PW.14 is
the competent authority to grant the prosecution
sanction against the accused. In this regard, even, the
learned Senior Public Prosecutor has produced copy of
the HAL Conduct, Discipline and Appeal Rules, 1984 for
perusal of this court, which is not in dispute.
20. Now, the evidence of PW.14 Sri. Rajagopalan
Madhavan, Retired Chairman and Managing Director of
HAL is analyzed, in his evidence, he has stated that in
the year 2020, he had received requisition letter from the
Superintendent of Police, CBI/ACB, Bengaluru, for grant
of sanction to prosecute the accused No.1 who was
working as Deputy General Manager (HR) HAL RWRDC,
Bengaluru. Along with the requisition letter, the
Superintendent of Police had sent copies of FIR, CBI
Report, Statement of witnesses and other related
documents pertaining to this case against accused No.1.
It is further stated by him that on receiving the said
34 Spl.CC.69/2021
documents, he went through the contents of all
documents and prima-facie satisfied as to commission of
the offence of cheating, abusing the official position by
accused No.1 and accordingly, he accorded the sanction
as per Ex.P.65. Therefore, on going through this evidence
of PW.14, it is clear that he had received relevant
documents from the Superintendent of Police, ACB for
grant of prosecution sanction to prosecute the accused
No.1 and after going through the said documents, prima-
facie he was satisfied as to case made out against
accused No.1 to prosecute him for the offence punishable
under Section 120B read with Section 420 of the IPC and
Section 13(2) read with Section 13(1)(d) of the PC Act.
21. Along with the evidence of PW.14, even the
contents of the sanction order is verified, it clearly
denotes as to application of mind on the documents
furnished by the Superintendent of Police to grant the
prosecution sanction against accused No.1. In the
sanction order, he has clearly narrated the facts and
circumstances of the case in detail which itself reveals
due application of mind by PW.14 while granting
sanction. In the sanction order itself, it is specifically
stated that PW.14 had fully and carefully examined the
materials such as copy of FIR, copies of statement of
witnesses recorded during investigation, copies of
documents etc., relating to the case, which were placed
before him. After thoroughly going through the
documents placed before him and perusal of the relevant
provisions of law and after due consideration, by applying
35 Spl.CC.69/2021
his mind to the same, he was satisfied that prima-facie
case is made out against accused No.1 to grant the
prosecution sanction. Therefore, on going through the
contents of the prosecution sanction order along with the
oral evidence of PW.14, the sanctioning authority, it
clearly emerges that PW.14 being the competent
authority, after due consideration of the matter by
applying his mind, granted prosecution sanction order as
required under Section 19(1)(c) of the PC Act.
22. No doubt, as argued by the learned counsel for
the accused No.1, during cross-examination, PW.14 has
stated that he had not seen any documents to show the
payment made by Sri.K.C.Samuel to accused No.1, any
document or authorization given to Sri.K.C.Samuel by
M/s. Evehans Academny to get the land on lease in the
documents submitted by the IO. It is also stated by him
that he had not seen any documents regarding
arrangements made by Sri.K.C.Samuel to pay any
amount to accused No.1. But, on the basis of this
evidence, one cannot accept that PW.14 has not applied
his mind on the materials placed by the IO for granting
sanction. It is needless to say that the sanctioning
authority has to verify the documents furnished by the IO
and apply its mind on them and if satisfied as to prima-
facie case made out from the materials placed, then, the
prosecution sanction has to be granted. The sanctioning
authority is not expected to hold separate enquiry in that
regard. If the entire evidence of PW.14 along with the
prosecution sanction order, it clearly emanates that
36 Spl.CC.69/2021
PW.14 had applied his mind and considered the materials
placed before him to grant the prosecution sanction to
prosecute the accused No.1. Only after having prima-
facie satisfied as to the offence committed by the accused
No.1, he had granted the prosecution sanction.
Therefore, this court did not find any grounds to hold
that the PW.14 has not applied his mind while granting
the prosecution sanction against accused No.1.
23. Therefore, on conjoint reading of the evidence
of PW.14 and contents of the sanction order, there
remains no doubt that PW.14, being the competent
authority to grant the prosecution sanction had
considered the relevant materials and after having
satisfied as to prima-facie case made out against the
accused No.1 for prosecuting him, he had issued
sanction order. The evidence of PW.14 and the contents
of Ex.P.65 undoubtedly ex-facie demonstrate as to
application of mind by the sanctioning authority on the
relevant documents and granting of sanction. Therefore,
under these attending circumstance, the contention of
the accused that Ex.P.65 sanction order was issued
without considering the documents and without applying
the mind cannot be accepted. The principles held in the
case of C.S.Krishna Murthy is aptly applicable to the
present case on hand to hold that the sanction granted
by the sanctioning authority is valid and is in accordance
with law. Thus, considering all these aspects, this court
is of the firm opinion that the prosecution has proved the
valid sanction to prosecute the accused No.1 with regard
37 Spl.CC.69/2021
to the offences charged against him. Accordingly, Point
No.1 is answered in the affirmative.
24. Point Nos.2 and 3: Since these two points are
inter-linked, to avoid repetition and for brevity, they are
taken together for consideration.
25. It is needless to say that the burden of proving
the guilt of the accused persons for the alleged offences
beyond reasonable doubt is on the prosecution. It is the
cardinal principle of criminal law that every person is
presumed to be innocent until the contrary is proved.
Therefore, it goes without saying that the burden of
proving the guilt of the accused persons for the alleged
offences beyond all reasonable doubt is on the
prosecution.
26. The Apex Court, in the decision report in (2003)
11 SCC 527 (Suchandpal V/s Phanipal and another) held
that “The prosecution can succeed by substantially
proving the version it alleges. It must stand on its own legs
and cannot take advantage of the weakness of the defence
case” . It is also held in the said decision that – “the
primary concern of the court should be to prevent the
miscarriage of justice – if two views are possible, one
which favours the accused should be preferred”. The same
view is also taken in another decision reported in (2009)
10 SCC 401 (Dhanpal V/s State). Recently, the same
view is also again reiterated by the Apex Court in a relied
decision dated 12.02.2024 i.e., in Crl.A.No.1162/2011 in
the case of Mallappa and others Vs. State of Karnataka.
38 Spl.CC.69/2021
In another decision reported in (2010) 10 SCC 439
(Paranjeeth Singh @ Pomma V/s State of
Uttarakhand) the Hon’ble Supreme Court held that –
“the law does not permit the court to
punish the accused on the basis of a
moral conviction or suspicion alone.
The burden of proof in Criminal trial
never shifts and it is always the
burden of the prosecution to prove its
case beyond reasonable doubt on the
basis of the acceptable evidence. In
fact, it is settled principle of criminal
jurisprudence that more serious
offence, the stricter the degree of proof
required, since higher degree of
assurance is required to convict the
accused.
27. Similarly, in another relied decision reported in
2015(10) SCC 152, the Hon’ble Apex Court held as
under;
“In reiteration of the golden principle
which runs through the web of
administration of justice in criminal
case, this court in Sujit Biswas Vs.
State of Assam (2013) 12 SCC 406
had held that suspicion, however
grave, cannot take the place of proof
and the prosecution cannot afford to
rest its case in the realm of “may be”
39 Spl.CC.69/2021
true but has to upgrade it in the
domain of “must be” true in order to
steer clear of any possible surmise or
conjecture. It was held, that the
Court must ensure that miscarriage
of justice is avoided and if in the facts
and circumstances, two views are
plausible, then the benefit of doubt
must be given to the accused.
28. In order to prove the guilt of the accused
persons, the prosecution has to prove all the necessary
ingredients of the offences leveled against the accused
persons beyond all reasonable doubt. Therefore, for
better understanding and appreciation of the evidence on
record, it is just and proper to refer the ingredients
necessary to constitute the offences leveled against the
accused persons.
29. Section 120A of the IPC gives definition of
criminal conspiracy and Section 120B provides
punishment for committing the criminal conspiracy.
Under Section 120-A, the criminal conspiracy is defined
as under;
When two or more persons agree to
do or cause to be done,-
(1) An illegal act; or
(2) an act which is not illegal, by
illegal means, such an agreement is
designated a criminal conspiracy.
40 Spl.CC.69/2021
Provided, no agreement except an
agreement to commit an offence
shall amount to a criminal
conspiracy unless some act besides
the agreement is done by one or
more parties to such agreement in
pursuant thereof.
30. On going through the above provision, it is
clear that the following are the necessary ingredients to
constitute the criminal conspiracy.
(i) There should be an agreement
between the parties who are
alleged to conspire.
(ii) Such agreement should be either
for doing an illegal act or for
doing an act by illegal means.
31. The above provision does not contemplate the
agreement shall be in writing. Therefore, the agreement
may be express or implied or in part express or implied.
The agreement is the gist of the offence. In order to
constitute a single general conspiracy, there must be a
common design and common intention of all to work in
furtherance of common design. The essence of the offence
of criminal conspiracy is the fact of combination by
agreement. The conspiracy arises and the offence is
committed as soon as the agreement is made and the
offence continues to be committed so long as the
combination persists. It is clear that in a criminal
41 Spl.CC.69/2021
conspiracy, meeting of mind of two or more persons for
doing an illegal act is a sine-qua-non. In this regard,
this court is also being guided by the decision of the
Hon’ble Supreme Court reported in 2002 SCC (Cri) 1734
in the case of Mohd. Khalid Vs. State of West Bengal.
32. So far as Section 420 of the IPC is concerned,
Sec.415 of the IPC, provides definition of cheating which
reads as under;
“Whoever, by deceiving any person,
fraudulently or dishonestly induces
the person so deceived to deliver any
property to any person, or to consent
that any person shall retain any
property, or intentionally induces the
person so deceived to do or omit to do
anything which he would not do or
omit if he were not so deceived, and
which act or omission causes or is
likely to cause damage or harm to
that person in body, mind, reputation
or property, is said to “cheat”.
Explanation:A dishonest concealment
of fact is a deception within the
meaning of this section.
33. On reading of the above provision, it is clear
that, the necessary ingredients of cheating are ;
(1) deception of any person ;
42 Spl.CC.69/2021
(2)(a) fraudulently or dishonestly
inducing that person to deliver any
property to any person or to consent
that any person shall retain any
property ;
(b) intentionally inducing that
person to do or omit to do anything
which he would not do or omit if he
were not so deceived, and which act
or omission causes or is likely to
cause damage or harm to that
person in body, mind, reputation or
property.
34. The terms ‘dishonestly’ and ‘fraudulently’ are
defined under Section 24 and 25 of the IPC as under :
"'Dishonestly' :- Whoever does
anything with an intention of
causing wrongful gain to one person
or wrongful loss to another person,
is said to do that thing
'dishonestly'."
” ‘Fraudulently’ :- A person is said to
do a thing fraudulently, if he does
that thing with intent to defraud but
not otherwise.”
35. Now the provisions of Section 420 of the IPC
are analyzed, it provides as under:
43 Spl.CC.69/2021
“whoever cheats and thereby
dishonestly induces person
deceived to deliver to any property
to any person or to make alter or
destroy the whole or any part of
valuable security or any thing
which signed or sealed, and which
is capable of being converted into
valuable security shall be
punished with imprisonment of
either description for a term which
may extend to 7 years, and also
shall also be liable to fine”.
36. From the above provisions, it is clear that, in
order to constitute the offence punishable under section
420 of the IPC, the following ingredients has to be
proved/complied.
a) there must be a deception i.e.
the accused must have
deceived someone.
b) that by the said deception, the
accused must induce a person
to deliver any property or to
make, alter or destroy whole or
part of the valuable security or
anything which is signed or
sealed and which is capable of
being converted into the
valuable property.
44 Spl.CC.69/2021
c) that the accused did so
dishonestly.
37. To bring the case under the ambit of Section
420 of the IPC, it is not only cheating simplicitor, but also
dishonest inducement to the person sought to be
deceived to deliver any property etc. are required to be
proved.
38. So far as Section 13 of the PC Act is concerned,
it deals with criminal misconduct by the public servant.
The accused No.1 is alleged to have committed the
offence under Section13(1)(d) of the said Act. In order to
attract the said offence, the prosecution has to establish
that the accused No.1 being the public servant, obtained
for himself or for other person any valuable thing or
pecuniary advantage by corrupt or illegal means or by
abusing his official position as public servant or while
holding the office as public servant, the accused No.1
obtained for any other person any valuable thing or
pecuniary advantage without any public interest. In this
regard, this court is being guided by the decision of the
Hon’ble Supreme Court in the case of K.R.Purushottam
Vs. State of Kerala, reported in AIR 2006 (12) SCC, 631
and also the relied decision of the Hon’ble Supreme Court
in Neeraj Datta‘s case, reported in AIR 2023 SC 330.
39. With the above aspects, the evidence on record is
to be dissected so as to determine whether the
prosecution has proved all necessary ingredients of the
offences alleged against the accused persons and thereby
45 Spl.CC.69/2021
the commission of the alleged offences. It is pertinent to
note that on going through the evidence on record and
hearing the arguments of the learned counsels, it is
noticed that there is no dispute with regard to certain
facts which are summarized as under.
Undisputed Facts:
a. The accused No.1 joined HAL as a Manager
(Legal) Grade-IV Officer at Bengaluru and
he was posted to Facility Management
Division from 19.09.2009 to 14.06.2015. In
the meanwhile, he was promoted to the
rank of Deputy General Manager on
01.07.2014 and was posted as Deputy
General Manager (HR) at RWRDC on
15.06.2015 till 03.12.2018. In this regard,
there is Ex.P.59, which contains Service
Particulars of accused No.1 and the said
document is marked by consent.
b. The Departmental Enquiry was held against
the accused No.1 in the matter of abuse of
the official position and misusing of letter
head of RWRDC, HAL, relating to leasing of
the HAL property in favour of M/s. Evehans
Academy and in the said Departmental
Enquiry, the charges were proved against
him and major penalty was imposed by
demoting him from the post of Deputy
Manager Grade VII to Senior Manager Grade
V as found in Ex.P.14. However, the
46 Spl.CC.69/2021
accused, while answering question No.6
under 313 statement, contended that the
Enquiry Order is challenged by him before
the Hon’ble High Court of Karnataka.
c. Filing of the complaint by PW.5
Sri.K.C.Samuel to the Vigilance Department
of HAL on 29.08.2018, as per Ex.P.15
against accused No.1. However, the accused
No.1 contended that the same is false.
d. Accused No.1, being DGM (HR), RWRDC
was not the competent authority/
authorized person to lease the property of
HAL. In this regard, copy of the Land
Management Policy of the HAL is produced
as per Ex.P.4. It is only Facility Management
Division, which is authorized to lease out
the property of HAL after approval of the
Board of Directors.
e. Ex.P.29 Sale Deed belonged to accused No.1
and Ex.P.30 to P.34 cheques are belonging
to the account of the accused No.2 and they
were issued by him. However, the accused
No.2, in his written statement contended
that PW.5 brought pressure on him through
Police and at the call of the Police, PW.5 got
5 signed cheques forcibly from him stating
that he will be set free from the case and he
filed complaint with the Police about use of
47 Spl.CC.69/2021
criminal force and forcibly taking signed
cheques from him. He also instructed his
banker to stop the payment.
f. On 31.08.2020, house search was
conducted in the house of the accused No.1,
inventory was made and some documents
were seized from the house of the accused
No.1. In that regard, the prosecution has
produced Ex.P.63 Search List and Ex.P.64
Inventory and there is also evidence of
PW.13 Sri.Rajakumar Bhole. No money or
incriminating documents were secured from
the house of accused No.1.
g. The mobile No.9480809046 belongs to
accused No.1, mobile No.996441010
belongs to accused No.2 and mobile No.
9945755305 belongs to PW.5 and seizure of
the mobile of PW.5 by the IO. In that regard,
the prosecution has produced documents as
per Ex.P.72 to P.75, which were marked by
consent.
h. M/s. Evehans Academy is the registered
society under the Karnataka Societies
Registration Act and PW.5 is the Chairman
of the said Academy. Similarly, PW.10 Sri.
N.Sathyanarayana, was the Administrative
Officer in M/s. Evehans Academy and PW.8
48 Spl.CC.69/2021
Sri. Sajjad Rahim, was Director of
M/s.Evehans Academy.
i. The accused No.2 had opened his SB
Account in Federal Bank and in that regard,
the prosecution has produced Account
Opening Form with copy of the KYC
Document furnished by accused No.2 as per
Ex.P.60 and also produced Statement of
Account relating to his account along with
certificate under Section 65-B of the Indian
Evidence Act, as per Ex.P.61. There is also
evidence of PW.11 Sri.Rahul S.M.Nair,
Assistant Manager, Federal Bank in that
regard.
j. The accused No.1 has not disputed his
signatures found in Ex.P.55 to P.58
produced by PW.6 Smt. Sheela D.
k. Ex.P.18 to P.20 letters are in the letter-
heads of the HAL RWRDC and the signature
of the accused No.1 stated to be found the
said letters are not the signature of accused
No.1. It is noticed from the file that the
signatures found in Ex.P.18 to P.20 (Q.1 to
Q.3) stated to be of accused No.1 were sent
to Forensic Analysis to Central Forensic
Science Laboratory (FSL) Hyderabad, along
with the admitted signatures of accused
No.1 found in Ex.P.55 to P.58 (A.1 to A.4)
49 Spl.CC.69/2021
and also specimen signature of accused
No.1 obtained by the IO as per S1 to S21
and the expert opined that the signatures
found in Ex.P.18 to P.20 are not the
signatures of accused No.1. Though no
evidence is adduced in this regard by the
prosecution, the FSL report is made
available in the file.
40. With the above aspects, now, we have to
consider the case of the prosecution in detail, in the light
of the rival contentions and the evidence placed before
the court. The prosecution has specifically contended
that the accused Nos.1 and 2 in furtherance of their
conspiracy to cheat M/s. Evehans Academy, induced its
Chairman PW.5 dishonestly and received in all 1.30
Crores from him in the name of due deposit to HAL for
lease of its land without any authority and thereafter they
failed to provide the land on lease as promised and also
failed to pay back the amount received. This contention
of the prosecution is equally specifically denied by the
accused persons. Under these attending circumstance,
the heavy burden is on the prosecution to establish its
case with high degree of proof with cogent, convincing
and acceptable evidence. As submitted by the learned
counsels, the star witness of the prosecution in this
regard is PW.5 and along with him, PW.7, PW.8 and
PW.10 are material witnesses.
41. PW.5 Sri.K.C.Samuel, is the Chairman of
M/s.Evehans Academy, who is stated to be the person
50 Spl.CC.69/2021
deceived by the accused and victim of the crime, stated to
have lost Rs.1.30 Crores by the illegal act of the accused.
Now, his evidence is analyzed, in his evidence he has
stated that – during 2017 they wanted to extend the
activities of M/s.Evehans Academy Society by taking
different forces of aviation and at that time, he met
accused No.2, who was introduced to him by
Sri.Punnoose M. Accused No.2 told him to meet accused
No.1 DGM, RWRDC in HAL Helicopter Division. Himself
and accused No.2 met accused No.1 in HAL Helicopter
Reception Division in a small conference hall. It is further
evidence of PW.5 that accused No.1 told him that HAL
had sufficient vacant land to lease out for aviation
education programme and for that, he has to deposit
Rs.50 lakhs in cash and at that time, accused No.2 was
also there along with accused No.1. He told them that he
can arrange the said amount through his friend
Sri.P.J.Jacob within 15 days.
42. It is further evidence of PW.5 that accused No.1
had suggested him to give a letter in the letter-head of
M/s.Evehans Academy Society to HAL to grant 5-6 acres
of land for a period of 55 to 60 years on lease.
Accordingly, on 19.04.2017, he had given letter to
accused No.1 seeking 5-6 acres of land on lease for a
period of 55 to 60 years. It is his further evidence that on
24.04.2017, accused No.2 had come to his office in
M/s.Evehans Academy Society at Marathalli and handed
over a letter to him stating that the vacant land is
available with HAL and they can proceed with the matter
51 Spl.CC.69/2021
and after verification, land will be granted to him. He
identified the said letter as per Ex.P.18. It is his further
evidence that after handing over the said letter, accused
No.2 had asked him to pay Rs.50 lakhs to him. To
arrange Rs.50 lakhs, he went to the house of
Sri.P.J.Jacob at Dommaluru on the same day evening.
Accused No.2 also came to his house. When he asked
accused No.2 about accused No.1, he told that accused
No.1 is sitting in the Car. He had collected Rs.50 lakhs
from Sri.P.J.Jacob and handed over the same to accused
No.2, who checked the amount and collected the same
and went back.
43. It is further evidence of PW.5 that on
08.05.2017, the accused Nos.1 and 2 came to his office
and handed over a letter of HAL signed by accused No.1
stating that in principle allotment is done and it is for
aviation and other technical programme. In the said
letter, it is also stated that they have to give preference to
HAL Employees’ Children. He identified the said letter as
per Ex.P.19 and signature of the accused No.1 as per
Ex.P.19(a). It is further deposed by him that, on the
same day, on the request of accused Nos.1 and 2, he had
paid additional amount of Rs.25 lakhs as demanded by
them. Few days later, accused No.1 contacted him and
asked him to pay Rs.10 lakhs more and accused No.1
had sent Sri.Jikku Joseph to collect the said money. He
handed over Rs.10 lakhs to Sri.Jikku Joseph as
instructed by accused No.1.
52 Spl.CC.69/2021
44. It is further evidence of PW.5 that the accused
Nos.1 and 2 asked him to visit the site. He went to site
along with Sri.Sathyanarayana (PW.10), where the
accused had shown the site situated at Doddanakundi
Village, behind ISRO Complex. After seeing the site, on
19.06.2017, accused No.1 had given another letter
stating that the registration is being arranged in between
27th to 29th of June, 2017 and also orally asked him to
pay additional amount of Rs.40 lakhs in cash for
registration. Accordingly, he had paid additional amount
of Rs.40 lakhs. PW.5 identified the said letter as per
Ex.P.20 and signature of accused No.1 as per Ex.P.20(a).
45. It is his further evidence that accused Nos.1
and 2 orally asked him to arrange DD for registration
purpose including 1 year lease /rent payment of Rs.9.36
lakhs. Accordingly, he had taken DD for Rs.9.36 lakhs
and sent the copy of the DD with one letter dated
20.06.2017 addressed to accused No.1 through
Administrative Officer Sri. Sathyanarayana. Since,
accused No.1 was not in the office, the receptionist by
name Sowmya (PW.9) had received the copy of the DD
and letter written by him and also issued
acknowledgment in that regard. PW.5 identified the said
letter which contains acknowledgment issued by the
receptionist as per Ex.P.21. It is further evidence of PW.5
that upto the end of June, 2017, he had paid in all
Rs.1.25 Crores in cash to accused Nos.1 and 2. Further,
when he was on US tour, he received call from accused
No.1 asking him to inspect site again. Since he was on
53 Spl.CC.69/2021
tour, he instructed his Administrative Officer Sri.
Sathyanarayana and Sri.Sajjad Rahim, the Director of
the Academy to visit the site. When they went to the
spot, accused Nos.1 and 2 had shown different site. After
showing the different site, they again asked for payment
of Rs.5 lakhs. This fact was intimated to him by
Sri.Sathyanarayana and he instructed
Sri.Sathyanarayana to pay the additional amount of Rs.5
lakhs so as to complete the registration process.
Sri.Jikku Joseph had collected the said amount.
46. It is further evidence of PW.5 that though the
amount was paid, there was purposeful delay in
registering the document. He had sent
Sri.Sathyanarayana to meet Sri.G.V.Rao (PW.2), the
General Manager of HAL Facility Management Division.
Sri. Sathyaranayana had shown all the letters to
Sri.G.V.Rao. Sri. G.V.Rao, had asked Sri.Manibhushan to
verify the matter. After verification, Sri. Manibhushan
had reported that there was no such deal with any
society to lease out property of HAL. Then, Sri.G.V.Rao,
in the presence of Sri. Sathyanarayana, called accused
No.1. The accused No.1 totally denied issuance of any
letter, receipt of any money and also stated that even, he
does not know Sri.Sathyanarayana and he had no
connection with M/s. Evehans Academy Society.
47. It is further evidence of PW.5 that he realized
accused No.1 and 2 have played fraud and defrauded him
and not provided any site of HAL for M/s.Evehans
Academy Society. Then, he had given complaint to HAL
54 Spl.CC.69/2021
Vigilance Department as per Ex.P.15. Then, this matter
was taken up by Vigilance Department of HAL and then,
it was referred to CBI. It is his further evidence that,
when the matter was taken up by Vigilance, HAL,
accused Nos.1 and 2 asked him not to precipitate the
matter and they will pay the entire money received. The
accused No.1 personally handed over Ex.P.29 Sale Deed
to him, stating that the property involved in the said Sale
Deed is worth more than Rs.50 lakhs and asked him to
keep the same as security till payment of Rs.50 lakhs by
him. It is further stated by him that accused No.2 issued
cheques as per Ex.P.30 to 34 for a total sum of Rs.1.30
Crores towards payment of the amount taken and also
given Ex.P.35 to P.39 cheques for total sum of Rs.1.95
Crores, issued by Sri.Jikku Joseph. He had presented
Ex.P.38 and P.39 cheques for encashment, but the same
were returned dishonuored for want of fund in the
account.
48. It is also the evidence of PW.5 that he had
taken 7 DDs in favour of HAL for total sum of
Rs.43,80,000/- for registration purpose as asked by
accused Nos.1 and 2 as per Ex.P.44 to P.50. Then, he got
canceled the said DDs through his daughter by giving
cancellation letter as per Ex.P.51 as he came to know
that accused Nos.1 and 2 defrauded him.
49. The above evidence of PW.5 reveals that he
claims to had paid a sum of Rs.50 lakhs in cash on
24.04.2017 to accused No.2 in the house of Sri.P.J.Jacob
by taking the said amount from him after receiving
55 Spl.CC.69/2021
Ex.P.18 letter, issued by accused No.1. Again, on
08.05.2017, he claims to had paid a sum of Rs.25 lakhs
in cash to accused Nos.1 and 2 in his office after
receiving a letter as per Ex.P.19 issued by accused No.1.
After few days of that, as asked by accused No.1, he had
paid Rs.10 lakhs in cash to Sri.Jikku Joseph, as
instructed by accused No.1. Further, he claims to had
paid additional amount of Rs.40 lakhs in cash on
19.06.2017 after seeing the site by receiving Ex.P.20
letter. It is also noticed that again, a sum of Rs.5 lakhs
was paid to Sri. Jikku Joseph, by PW.10 as per the
instruction of PW.5 in cash, as asked by accused Nos.1
and 2 after showing the different site and in all he had
paid Rs.1.30 Crores to accused Nos.1 and 2. It is also
noticed that accused No.1 claims to had taken DD for
Rs.9.36 lakhs towards 1 year lease / rent payment and
DD for Rs.43,80,000/- for the registration purpose as
asked by accused Nos.1 and 2 as per Ex.P.44 to P.50 and
thereafter, the DD for Rs.43,80,000/- was cancelled as
per Ex.P.51 letter.
50. It is pertinent to note that the accused have
specifically denied the receipt of Rs.1.30 Crores as stated
by PW.5 on different dates. No doubt, as submitted by
the learned Senior Public Prosecutor, PW.5 in his
evidence stated regarding payment of the said amount.
However, as submitted by the learned defence counsels,
except oral assertion of PW.5, there is no other
documentary evidence to show the huge payment of
Rs.1.30 Crores as stated by him. In this regard, it is
56 Spl.CC.69/2021
pertinent to note that admittedly, the site was required
for the expansion of the activities of M/s.Evehans
Academy Society, by taking different courses of aviation
and PW.5 sought for the land on behalf of the said
Academy, by representing the Academy. Further,
undisputedly, as admitted by PW.5 himself, M/s.Evehans
Academy Society, is the registered society under the
Karnataka Societies Registration Act and every resolution
of the Minutes in the Board Meeting has to be recorded in
a Register and copy of the same has to be submitted to
the Registrar of the Societies. Similarly, as found in Rule
7 of the Karnataka Societies Registration Rules, 1961,
every society shall prepare for each calendar year, in
such a form as may be specified by the Registrar, a copy
of Balance Sheet and Income and Expenditure duly
audited and the same shall be submitted to the Registrar.
Therefore, any financial transaction in any mode i.e.,
either in cash or through instrument, on behalf of the
registered society has to be entered in the Balance Sheet
and the same is required to be audited. Such being the
case, any amount spent on behalf of M/s. Evehans
Academy, being a registered society is required to be
maintained in the Balance Sheet and that requires to be
audited and copy of the same is also required to be
submitted to the Registrar of the Societies. Therefore, if
at all PW.5 had spent or paid any amount on behalf of his
society irrespective of mode of payment, the same has to
be maintained in the Balance Sheet of the said society
and also to be audited and copy of the same is also to be
submitted to the Registrar of the Societies. But, in this
57 Spl.CC.69/2021
case, no such document is produced before the Court to
establish the payment made.
51. With regard to the above aspects, now, the
evidence of PW.5 during cross-examination is analyzed, it
is clear that he receives Rs.2 lakhs as salary from
M/s.Evehans Academy and he represents the said
Society as its Chairman. During cross-examination, he
admits that to incur any expenditure in the name of M/s.
Evehans Academy Society, he has to take consent from
the Board of Directors. As per the bye-laws, the Board of
Meeting has to be held once in 3 months. Before
approaching the HAL for lease of the property, he placed
the proposal before the Board of Directors of
M/s.Evehans Academy Society. Initially, there was no
any Board Resolution to have the property on lease from
HAL and the resolution was passed only after approval in
principle by accused No.1. This evidence reveals that
there was resolution of the Board to have the land of the
HAL on lease. But the said resolution is not produced
before the Court. It is not understood for what reason
such material document is not collected by the IO and
withheld before the Court, when very factum of seeking
lease of the property itself is denied.
52. PW.5 during his cross-examination further
stated that being a Chairman and Managing Director of
M/s.Evehans Academy Society, he was empowered to
take decision to purchase or to get the land on lease.
That empowerment is not stipulated in bye-laws but
58 Spl.CC.69/2021
through by resolution by the Board of Directors to take
decision regarding day to day running of the Academy
and its development. The said resolution was passed
after construction of the building in the purchased
property. But the said resolution was not secured by the
IO and produced before the Court to show that PW.5 had
such authority to approach HAL to have the land on lease
on behalf of the Academy. It is not understood why the IO
had not collected the said document in the light of the
facts and circumstance of this case.
53. During cross-examination, PW.5 further deposed
that after payment of Rs.50 lakhs, he placed the matter
before the Board of M/s. Evehans Academy Society and
Board has approved payment of Rs.50 lakhs made by
him. This evidence reveals that there is approval of the
Board of the Academy regarding payment of Rs.50 lakhs
made by PW.5. Such being the case, there is every proof
to show the payment of Rs.50 lakhs as stated by PW.5.
But, such document is neither collected by the IO nor
produced before the Court to establish the payment of
Rs.50 lakhs as contended. Further, during cross-
examination, PW.5 further deposed that an amount of
Rs.50 lakhs was paid on 24.04.2017 is not in the
suspension account since the said amount was taken
from Sri.P.J.Jacob in cash and the same is treated as
loan amount of Sri.P.J.Jacob to be paid by him. The
said amount is not accounted so far as it was given by
Sri.P.J.Jacob to accused No.2. This version of PW.5 gives
another view with regard to payment of Rs.50 lakhs to
59 Spl.CC.69/2021
accused No.2. Therefore, it is clear that the available
documents are not placed before the Court to establish
the payment of Rs.50 lakhs as stated by PW.5. It is
needless to say that when the very payment itself is in
serious dispute, the available material document ought to
have been secured by the IO and non-securing and non-
producing of such available material documents calls for
adverse inference.
54. To prove the payment of Rs.50 lakhs, even the
prosecution has examined Sri.P.J.Jacob, who stated to
had given the said amount to PW.5 and in turn, PW.5
paid the said amount to accused No.2. Now, the evidence
of PW.7 is analyzed, PW.7 Sri.P.J.Jacob in his evidence
deposed that he knew PW.5 since 1995. In the first week
of April, 2017, Sri.K.C.Samuel approached him
requesting to arrange Rs.50 lakhs in cash for acquiring
some land from HAL and he told him that he cannot
provide Rs.50 lakhs immediately and required atleast 15
days time to arrange the said amount. On 23.04.2017,
he informed Sri.K.C.Samuel that he had arranged the
money and is available with him at his residence. It is
further evidence of PW.7 that on 24.04.2017,
Sri.K.C.Samuel along with accused No.2 came to his
house and he handed over Rs.50 lakhs in cash in a bag
to Sri.K.C.Samuel and in turn, Sri.K.C.Samuel handed
over the said cash to accused No.2 in his presence. At
the time of giving Rs.50 lakhs, Sri.K.C.Samuel had shown
him a letter in the letter-head of HAL signed by accused
No.1 stating that the application for allotment of site for
60 Spl.CC.69/2021
M/s.Evehans Academy is under process and will be done
in due course of time. The accused No.2 had taken out
the money from the bag and counted the same and then
put it in his bag and left. It is his further evidence that
after 15-20 days, the accused No.2 had come to his
house and requested him not to proceed with the legal
action for recovery of Rs.50 lakhs and he will return the
said amount immediately. It is also deposed by him that
after 1 month, accused No.2 came to the office of
Sri.K.C.Samuel and Sri.K.C.Samuel called him to his
office to tell to accused No.2 to return the money
immediately. Accordingly, he went to the office of
Sri.K.C.Samuel, where accused No.2 was present. At
that time, accused No.2 told that proposed allotment of
land did not materialize and he will return the money
within short period.
55. The above evidence of PW.7 is analyzed, one
cannot find any role of accused No.1 in the matter of
receiving of alleged payment of Rs.50 lakhs. It is
pertinent to note that as per the evidence of PW.7, PW.5
approached him in the first week of April, 2017 seeking
arrangement of Rs.50 lakhs for acquiring some land from
HAL. But, it is interesting to note that in the first week of
April, 2017, PW.5 had not approached the HAL seeking
the land on lease. As per the version of the prosecution,
only on 19.04.2017, PW.5 approached accused No.1
seeking land of HAL on lease by filing the application.
Such being the case, PW.5 asking PW.7 a sum of Rs.50
lakhs in the first week of April, 2017 does not arise.
61 Spl.CC.69/2021
Even, in this regard, evidence of PW.5 during cross-
examination is analyzed, he has voluntarily stated that if
his memory is correct, it was on 08.04.2017 he went to
HAL to meet accused No.1. It is also interesting to note
that as per the evidence of PW.7, after payment of Rs.50
lakhs on 24.04.2017, about 15 to 20 days thereafter
accused No.2 came to his house and requested him not
to proceed with the legal action for recovery of Rs.50
lakhs and he will return the said amount immediately.
This means that in the first or second week of May, 2017
itself, accused No.2 promised to repay the said amount to
PW.7. This is contrary to the prosecution case. It is not
the case of the prosecution that accused No.2 had taken
money from PW.7, but from PW.5. Further, as per the
version of the prosecution, further amount was paid
subsequent to payment of Rs.50 lakhs even in the month
of June, 2017 for getting the land on lease. Such being
the case, it appears that PW.7 is suppressing certain
facts for the reason best known to him.
56. Along with the above aspects, it is pertinent to
note that PW.5 claims payment of Rs.50 lakhs by PW.7 to
pay the said amount to accused No.2. But absolutely,
there is hardly any documentary evidence to show that
PW.7 had such huge amount in cash as on 24.04.2017
and the said amount was paid to PW.5 and in turn to
accused No.2 as stated. In this regard, it is noticed that
PW.5 during his cross-examination stated that Rs.50
lakhs was taken from PW.7 in his personal capacity and
not in the account of M/s.Evehans Academy. When such
62 Spl.CC.69/2021
huge amount was taken as financial assistance/ loan,
the same should have been shown in the IT Returns of
the concerned year. However, PW.5, during his cross-
examination stated that he has not mentioned Rs.50
lakhs received from PW.7 either in his personal IT
Returns or in the IT Returns of M/s.Evehans Academy
Society. Further, in this regard, PW.7 during his cross-
examination stated that he had filed his Income Tax
Returns during the year 2016-17 and 2017-18 and he
had not shown Rs.50 lakhs paid to PW.7 in his IT
Returns. Therefore, it is clear that the payment of Rs.50
lakhs by PW.7 in favour of PW.5 is not shown in the IT
Returns of either PW.5 or PW.7 or M/s.Evehans
Academy.
57. As already stated, there is no acceptable
evidence to show that PW.7 had such financial capacity
to make huge payment of Rs.50 lakhs in cash as on
24.04.2017. Even, PW.7 stated that he had borrowed
Rs.50 lakhs from his various friends and gave it to PW.5.
Such being the case, that amount should have been
shown in the IT returns of PW.7. It is also noticed that
there is no document to show that Rs.50 lakhs was
repaid to PW.7 by PW.5. If at all, the financial assistance
of such huge amount was taken from PW.7, naturally,
PW.5 has to repay the said amount to him. But, nothing
is forthcoming in that regard. It is astonishing to note
that such huge amount was paid without making any
records, which creates suspicion as to the said
transaction itself. The conjoint reading of entire evidence
63 Spl.CC.69/2021
of PW.5 and PW.7 creates doubt as to the payment of
Rs.50 lakhs as stated by PW.5. It is not understood why
the IO has not collected any documents as to source of
Rs.50 lakhs in the hands of PW.7 and payment of said
amount to PW.5 and in turn, to accused No.2 as put up
by the prosecution. Admittedly, PW.7 is the friend of
PW.5 and he appears to be interested person with PW.5.
Therefore, there arises serious doubt as to payment of
Rs.50 lakhs by PW.5 to accused No.2. Absolutely, there
is no documentary evidence regarding payment of such
huge amount.
58. So far as payment of Rs.25 lakhs on 08.05.2017
as deposed by PW.5 is concerned, again, absolutely, there
is no documentary evidence except oral assertion of PW.5
as aforesaid. As already stated, the accused have
specifically denied the receipt of the said amount. So far
as the payment of this amount is concerned, during
cross-examination, PW.5 has stated that he was having
Rs.25 lakhs on 08.05.2017 in his hand. The said amount
was out of fees collection reserved and development fund.
The payment of Rs.25 lakhs in cash was shown in the
suspense account of M/s.Evehans Academy Society and
the said amount is still in the suspense account. This
evidence of PW.5 reveals that Rs.25 lakhs was paid out of
fees collected, reserved and development fund of M/s.
Evehans Academy and the same is shown in the
suspense account. Such being the case, the payment of
the said amount has to be maintained in the account of
the Academy and definitely there should be a document
64 Spl.CC.69/2021
for having paid the said amount. But for the reason best
known to the IO, such available document was not
secured during investigation. Even, such documents are
not placed before the court during trial also. Such being
the case, the payment of Rs.25 lakhs as stated by PW.5
cannot be accepted.
59. It is also noticed that in the evidence, PW.5 has
stated that on 08.05.2017, accused Nos.1 and 2 came to
his office and handed over Ex.P.19 letter and on the same
day, on their request, he paid additional amount of Rs.25
lakhs. But, in this regard, the statement of PW.5
recorded by the IO reveals otherwise. In the statement of
PW.5, it is stated that on 08.05.2017, PW.5 and accused
No.2 met accused No.1 at the reception of RWRDC HAL
and accused No.1 gave him the second letter having
reference No.HAL/DGM(W)/1692 dated 08.05.2017 i.e.,
Ex.P.19 and asked him to arrange further amount of
Rs.25 lakhs on 10.05.2017. The statement further
reveals that PW.5 had arranged Rs.25 lakhs from the fees
collected from the students and and accused Nos.1 and 2
visited his office on 10.05.2017 and received the said
amount. This reveals that Rs.25 lakhs was paid not on
08.05.2017 as stated by PW.5 but it was paid on
10.05.2017 and there is contradiction in that regard.
Therefore, there is no clarity as to payment of Rs.25
lakhs by PW.5 as stated.
60. PW.5 further stated that after few days from
08.05.2017, he had paid Rs.10 lakhs as sought for by
accused No.1 and handed over the said amount of Rs.10
65 Spl.CC.69/2021
lakhs to Sri.Jikku Joseph, as instructed by accused No.1.
Here also, absolutely, there is no document to prove the
payment of this amount. It is interesting to note that
Sri.Jikku Joseph, is not at all examined by the IO with
regard to payment of the said amount and even, he is
neither shown as prosecution witness nor examined
before the court. There is hardly any convincing and
acceptable evidence as to payment of huge amount of
Rs.10 lakhs as stated by PW.5. Under these attending
circumstances, the payment of Rs.10 lakhs as stated by
PW.5 gets suspected.
61. As stated earlier, PW.5 claims payment of Rs.40
lakhs in cash on 19.06.2017 for registration purpose
after receiving Ex.P.20 letter issued by accused No.1.
However, if the contents of Ex.P.20 letter is looked into,
there is no demand for payment of Rs.40 lakhs towards
registration. So far as payment of this amount is
concerned, once again, absolutely, there is no
documentary evidence except oral assertion of PW.5.
There is hardly any evidence as to source of the said
amount. Only on the basis of the oral assertion of PW.5,
it is difficult to accept the payment of the alleged huge
amount of Rs.40 lakhs without any records. PW.5 further
stated as to payment of Rs.5 lakhs by PW.10 to Sri.Jikku
Joseph, as demanded by the accused. So far as this
alleged payment is concerned, again there is no
documentary evidence. PW.5 has not even stated on
which date the said amount was paid. So far as payment
of this amount is concerned, the prosecution has
66 Spl.CC.69/2021
examined PW.10 Sri.N. Sathyanarayana, who was the
Administrative Officer of M/s.Evehans Academy.
62. PW.10 Sri.N.Sathyanarayana in his evidence
stated that, in the month of July, 2017, accused No.1
had informed the Chairman of M/s.Evehans Academy
(PW.5) that there is an alternative site opposite of
Marthalli Market, Old Airport Road, which will suit the
requirement of the Academy. The accused No.1 had
asked the Chairman to visit the said spot. Since the
Chairman was not available in India at that time, the
Chairman had instructed him and Sri.Sajjad Rahim to
visit the spot along with accused Nos.1 and 2. After
showing the said site, accused No.1 demanded for
payment of additional amount of Rs.5 lakhs.
Accordingly, he informed the Chairman in that regard
and the Chairman informed him to make payment of
Rs.5 lakhs as demanded. On 09.07.2017, he had paid
Rs.5 lakhs to Sri.Jikku Joseph, the representative of
accused No.1, in the office of the Academy.
63. So far as payment of Rs.5 lakhs is concerned,
again there is no documentary evidence except the
assertion of PW.5 and PW.10. Though PW.10 has stated
as to payment of Rs.5 lakhs, he has not stated as to
source for the said amount. The amount was stated to be
paid to Sri.Jikku Joseph, the representative of accused
No.1. But as already stated, Sri.Jikku Joseph is neither
examined by the IO nor shown as prosecution witness
nor examined before the court in support of the
prosecution version. At this juncture, the cross-
67 Spl.CC.69/2021
examination of PW.10 is looked into, during cross-
examination, he has stated that there is no document to
show the payment of Rs.1.30 Crores to accused Nos.1
and 2, but there is record to show the part payment
made. He further deposed that he had taken
acknowledgment from Sri.Jikku Joseph, for having paid
Rs.5 lakhs. This evidence of PW.10 reveals that PW.10
had taken acknowledgment from Sri.Jikku Joseph, for
having made payment of Rs.5 lakhs. But, that
acknowledgment is not secured by the IO and not
produced before the Court. It is not understood why the
said available document is not secured and produced
before the Court. The evidence of PW.10 also reveals that
there are records to show the part payment made to
accused Nos.1 and 2, but no such records are produced.
Under these attending circumstances, the payment of
Rs.5 lakhs as stated by PW.5 and PW.10 also gets
suspected.
64. As discussed above, except the oral evidence of
PW.5, PW.7 and PW.10, hardly there is no other evidence
available on behalf of the prosecution to prove the alleged
payment of Rs.1.30 Crores to the accused Nos.1 and 2.
However, as discussed above, only their oral assertion is
not sufficient to accept the case of the prosecution as to
payment of huge amount of Rs.1.30 Crores as contended.
Further, as submitted by the learned defence counsels, it
also appears that PW.7 and PW.10 are the close
associates of PW.5 and they are interested witnesses. The
available documents were neither secured by the IO nor
68 Spl.CC.69/2021
produced before the Court. When the registered society
goes for getting the land on lease on its huge expenses,
naturally, there has to be records for the amount paid. It
is totally unimaginable to make payment of huge amount
of Rs.1.30 Crores in cash without any document. Even,
payment of such huge amount in cash by the society or
on behalf of the society is also prohibited. Under such
circumstances, no prudent person can accept that such
huge amount of Rs.1.30 Crores was paid by PW.5 in
favour of the accused persons as contended.
65. With the above oral evidence, now the
documentary evidence in this regard is analyzed,
admittedly, PW.5 lodges complaint to the Chief Manager
(Vigilance) HAL, Bengaluru as per Ex.P.15 on 29.08.2018
regarding collection of money for providing HAL land on
lease to M/s.Evehans Academy. The contents of the said
complaint are analyzed, in the said complaint, it is stated
that Sri. Velmurugan, DGM (HR) RWRDC, promised that
6.50 acres of HAL land will be given to M/s. Evehans
Academy on lease. In that pretext, he has collected Rs.50
lakhs from them through accused No.2. Further, the
accused No.1 has handed over the letter personally to
them in RWRDC reception area assuring the lease of land
in favour of M/s.Evehans Academy. Since 21.04.2017,
accused No.1 neither gave the land on lease nor returned
the borrowed money of Rs.50 lakhs. When they asked
money back, accused No.1 has given original documents
of his property as pledge for the amount borrowed.
69 Spl.CC.69/2021
66. If the averments of the complaint i.e., Ex.P.15
are analyzed, there is no allegation of conspiracy between
accused Nos.1 and 2 as contended by the prosecution.
Further, in the said complaint, it is stated that accused
No.1 has taken only Rs.50 lakhs and not Rs.1.30 Crores
as stated by the prosecution. Further, the money paid
was also stated to be borrowed money and it is not stated
that the said amount was taken towards advance deposit
to lease the land of HAL in favour of M/s. Evehans
Academy. Therefore, the contents of Ex.P.15 are totally
inconsistent with the prosecution version. In this regard,
it is noticed that in examination-in-chief, PW.5 has stated
that since accused No.1 had told him that he had
received only Rs.50 lakhs, he had shown Rs.50 lakhs
only in Ex.P.15 complaint. This version of PW.5 cannot
be accepted. If at all he had paid such huge amount of
Rs.1.30 Crores as stated by him, one cannot accept that
as on the say of accused No.1, he had limited the said
amount to Rs.50 lakhs only. If at all accused No.1 stated
so, the same should have been stated in Ex.P.15. It
appears that in the evidence, PW.5 intended to improve
his version as he mentioned Rs.50 lakhs in Ex.P.15.
Therefore, on the basis of Ex.P.15, the case of the
prosecution that the accused have deceived Rs.1.30
Crores as stated by PW.5 cannot be accepted. Apart from
that, as discussed earlier, there is hardly any
documentary evidence to support the version of the
prosecution. Therefore, there arises serious doubt as to
the case of the prosecution and also creates doubt as to
credit worthiness of evidence of PW.5.
70 Spl.CC.69/2021
67. It is noticed that as per the version of the
prosecution, PW.5 through letter dated 19.04.2017
addressed to accused No.1 requested to provide 6 acres
of land of HAL on lease and on the basis of the said letter,
subsequent actions were taken. However, it is noticed
that the original letter dated 19.04.2017 itself was not
collected by the IO. It is noticed from the contents of
Ex.P.28 that the IO had received certified copy of the
letter dated 19.04.2017 addressed to accused No.1
signed by the Chairman (PW.5) of M/s.Evehans Academy.
It is also noticed that the said document is mentioned as
document No.22 in the document list (Annexure-III) of
the charge sheet. The said document is also available in
the file. But, on going through the said document, it is
noticed that the said document is not the certified copy
but it is only notarized copy. In the said document, there
is no seal of the HAL for having received the same. It is
not understood why the IO has not made any attempt to
secure the the said original letter from HAL. It is
pertinent to note that the accused No.1 has specifically
denied the receipt of said letter by him. It is also noticed
that in the said letter, the address of the accused No.1 is
shown as “Mr.Velmurugan, Deputy General Manager (W)
Hindustan Aeronautical Ltd., Bangalore”. But it is
pertinent to note that the accused No.1 Sri.Velmurugan
was not working as Deputy General Manager (W) of HAL,
but he was working as “Deputy General Manager (HR)
RWRDC, HAL, Bangalore” as found in his Service details
produced under Ex.P.59. It is not made known where
exactly the said letter was received in HAL. As already
71 Spl.CC.69/2021
stated, there is no acknowledgment of HAL for having
received the letter dated 19.04.2017 in the notarized copy
of the said letter available in the file. It appears that the
IO has not investigated anything as to whether such
letter was received in any wing of the HAL and had not
recovered the said letter, which is the beginning point of
the alleged lease transaction involved in this case. It is
also noticed that in the notarized copy of the letter dated
19.04.2017 available in the file, there is no
reference/outward number mentioned by M/s.Evehans
Academy and no document is produced for having
received the said letter in any Department of HAL. The
Inward Register for having received the said letter in HAL
is also not secured by the IO. Therefore, there is no
acceptable evidence to show that the letter dated
19.04.2017 was given to HAL and the same was received
by the accused No.1 for processing the same as stated by
PW.5.
68. It is also pertinent to note that PW.5, in his
evidence stated that, himself and accused No.2 met
accused No.1 in HAL Helicopter Reception Division in a
small conference hall. But no records are produced
before the court to that effect. Admittedly, accused No.2
and PW.5 are the private persons and there should be an
entry in the reception as to their entry to the premises of
HAL in the Visitors’ Register. But, no such record was
secured by the IO to show that PW.5 had met accused
No.1 and delivered the letter dated 19.04.2017.
Absolutely, there is no document to show that PW.5 met
72 Spl.CC.69/2021
the accused No.1 in his office at HAL and how the letter
dated 19.04.2017 was delivered to the accused No.1.
Under these attending circumstances, there arises
serious doubt on the very filing of the request letter
seeking lease of land as put up by the prosecution.
69. Along with the above aspects, now the contents
of Ex.P.18 to P.20 letters, stated to be issued by accused
No.1 to M/s. Evehans Academy, on the basis of which,
the amount is stated to be paid by PW.5 are looked into,
in Ex.P.18 and P.19 letters, there is a reference as to
request dated 09.04.2017 of M/s. Evehans Academy and
not the request letter dated 19.04.2017. The letter dated
09.04.2017 referred in Ex.P.18 and P.19 is also not
secured by the IO. PW.5 has also not stated anything as
to the letter dated 09.04.2017.
70. It is pertinent to note that in Ex.P.18 to P.20,
there is no name of accused No.1. Admittedly, the
signature stated to be of the accused No.1 in the said
letters is not the signature of the accused No.1 as per the
report of the FSL. Further, the said letters were also
stated to be issued by the DGM(W) and not by the
DGM(HR). Even, during the reply arguments, the learned
Senior Public Prosecutor submitted that there is separate
division in HAL as DGM(W) and it may refers to
“DGM(West) or DGM(Welfare) or DGM(Work)”. Further,
admittedly, the IO has not conducted any investigation as
to origin of the said letters in HAL, in which printer or
computer the said letters were generated and who had
indented for the said letter-heads of HAL. Even, no
73 Spl.CC.69/2021
document is produced to show that the said letters were
dispatched by accused No.1 or by any department/wing
of the HAL. No outward register was secured by the IO in
connection with Ex.P.18 to P.20 for the reason best
known to the IO. Even, in Ex.P.19 and P.20, there is
reference number of HAL/DGM(W) and not
HAL/DGM(HR) RWRDC and the IO could have
investigated as to from where the said letters were
dispatched. But, no effort was found to be made in that
regard. Such being the case, it is not understood, how
the prosecution can contend that the said letters were
issued by accused No.1. Therefore, in the light of the
existing evidence and investigation conducted, one
cannot accept that the said letters were issued by
accused No.1, as contended by the prosecution and that
cannot be linked to him.
71. Therefore, under these attending circumstances,
Ex.P.18 to P.20 will not come to the aid of the prosecution
and on the other hand, there arises doubt as to the case
of the prosecution and also the manner in which the
investigation was conducted. Therefore, it is difficult to
accept that on the basis of Ex.P.18 to P.20 letters, PW.5
had made payment of huge amount of Rs.1.30 Crores in
cash without keeping any records and without taking any
acknowledgment. At this stage, it is pertinent to note
that there is no clarity as to the land to be leased. The
Survey Number/ Property Number, extent, identity, etc.,
of the land to be leased are also uncertain as found from
the evidence on record. Such being the case, once again,
74 Spl.CC.69/2021
it is highly difficult to accept the payment of such huge
amount towards advance deposit in cash as put up by
the prosecution. Therefore, the case of the prosecution is
totally clouded with suspicion with regard to the payment
of Rs.1.30 Crores as contended.
72. During evidence of PW.5, he has also stated
that the accused have orally asked him to arrange DD for
registration purpose including 1 year lease/ rental
payment of Rs.9.36 lakhs and accordingly, he had taken
DD for Rs.9.36 lakhs and sent the copy of the DD with
letter dated 20.06.2017 i.e., Ex.P.21. But in that regard,
Ex.P.21 is analyzed, the said letter is addressed to the
DGM(W), Design Complex, HAL, Bengaluru and not to
accused No.1-the DGM(HR) RWRDC, HAL, Bengaluru.
Therefore, it cannot be said that Ex.P.21 letter was
addressed to the accused No.1. Further, in Ex.P.21 letter,
it is stated that the draft Lease Deed was enclosed again
for ready reference, which was earlier submitted. Even
Demand Drafts were also found to be taken for Rs.9.36
lakhs on 09.05.2017. But, the said fact is not found in
Ex.P.15 complaint. No document is either secured by the
IO or produced before the Court regarding furnishing of
draft Lease Deed and taking of Demand Draft for Rs.9.36
lakhs. It is not understood on what basis M/s. Evehans
Academy took DD for Rs.9.36 lakhs being 1 year lease/
rental advance deposit as stated in Ex.P.21 on
09.05.2017 when the land to be leased, its rent, period of
lease etc., were not fixed or identified. Further, in
Ex.P.21, M/s. Evehans Academy has also sought for
75 Spl.CC.69/2021
advice as to amount required for registration of the land.
But, PW.5 in his evidence stated that he had taken 7 DDs
in favour of HAL for total sum of Rs.43.80 lakhs for
registration purpose as asked by accused Nos.1 and 2.
In that regard, the DDs were produced as per Ex.P.44 to
P.50 and the said DDs were also canceled on 03.10.2017
as per Ex.P.51. But, it is not understood, on what basis
the said DDs were taken by PW.5. Be that as it may, it is
not the case of the prosecution that the said amount has
been credited to HAL. It is not understood, without any
authenticated document by a proper person of HAL, how
PW.5 could take DDs. Therefore, the taking of the DDs
by PW.5 in the name of HAL will not improve the
prosecution case or even it cannot be considered as
bona-fide approach on behalf of PW.5 as submitted by
the learned Senior Public Prosecutor. Hence, the said
aspect is no way helpful to the prosecution. Therefore,
this court is of the considered view that the prosecution
has totally failed to prove the factum of payment of
Rs.1.30 Crores to accused Nos.1 and 2 by PW.5 as
contended.
73. With the above aspects, now the circumstances
taken by the prosecution to support its contention are
verified, they are as under;
(a) The Departmental Enquiry against
accused No.1 on the subject
matter and its findings as per
Ex.P.17 and Punishment Order
passed as per Ex.P.14.
76 Spl.CC.69/2021
(b) The custody of original Sale Deed
of accused No.1 i.e., Ex.P.29 with
PW.5.
(c) The cheques issued by accused
No.2 in favour of PW.5 as per
Ex.P.30 to P.34 for Rs.1.30 Crores.
(d) The whatsapp chats between PW.5
and accused Nos.1 and 2 i.e.,
Ex.P.53, P.23 and P.24.
74. Now, the first circumstance I.e,, Departmental
enquiry and its findings against accused No.1 are looked
into, the prosecution has produced the Departmental
Enquiry Report as per Ex.P.17 and the Punishment Order
as per Ex.P.14. The prosecution has also examined the
author of the Departmental Enquiry Report Sri.Ranjith
R., as PW.4 and author of Punishment order as PW.14.
There is no dispute as to conducting of Department
Enquiry and passing of the punishment order as per
Ex.P.17 and P.14. However, the accused No.1 has
contended that the Enquiry is under challenge before the
Hon’ble High Court, but not produced any documents in
that regard. No doubt, as submitted by the learned
Senior Public Prosecutor, the Enquiry Report reveals
that, in the Departmental Enquiry, the charge against the
accused No.1 was proved and major punishment was
given to him as per Ex.P.14. But, on the basis of the said
order, it cannot be said that the accused has committed
the offence leveled against him. The degree of proof
required in the Departmental Enquiry and the degree of
77 Spl.CC.69/2021
proof that is required in the criminal prosecution are
different. It is needless to say that in the Departmental
Enquiry, the standard of proof is only preponderance of
probability and whereas, in the criminal prosecution, it is
beyond reasonable doubt. Therefore, the in criminal
prosecution, the prosecution has to prove the case
against the accused persons beyond all reasonable
doubt. But as discussed supra in detail, the prosecution
has failed to prove the very payment of Rs.1.30 Crores as
alleged against accused Nos.1 and 2 and to link the
accused No.1 with Ex.P.18 to P.20 letters stated to be
issued by him.
75. In this regard, the contents of Ex.P.17 are
analyzed, even to some extent, it gives a different view. It
appears that the Departmental Enquiry is concluded on
the basis of the admission given by accused No.1. In the
Departmental Enquiry, PW.4 observed that Rs.67 lakhs
have been collected by accused No.1 on the alleged land
deal which is not the prosecution case at all. Further, in
Ex.P.17, there is a Verification Report dated 27.10.2017
submitted by PW.4 himself relating to the subject matter
involved in this case. In the said Verification Report, he
has recommended for closure of the complaint. In para
4.7 of the said Verification Report, it is stated as under;
“Verification and visits at Hindustan
aviation Academy :
On 16.10.2017 and 17.10.2017 the
undersigned along with CM(V)-BC met
Shri Samuel, Chairman of HAA at his
78 Spl.CC.69/2021office and sought clarification on the
subject issue. On interaction he stated
that one Mr. Mishra, who approached
him pertaining to Mishra’s Son’s
admission at HAA suggested the idea of
HAL land lease. And later Mr. Mishra
introduced one Mr. Joseph, who acted
as the mediator between HAL and HAA.
Further he provided the following
phone numbers pertaining to Mr.
Mishra and Mr. Joseph. He also stated
that Mr. Joseph was collecting the letter
from HAA and provided the forged
letters from HAL. Further Mr. Samuel
confirmed that no HAL employee was
involved in the subject issue other than
the Mr. Mishra and Mr. Joseph who
were not from HAL:
Mr. Mishra – 08070492138
Mr. Joseph – 8095911098
During verification tried to contact the
above two numbers but were found
switched off”.
76. This Verification Report goes against the case
of the prosecution. In the above referred para “HAA” is
referred to M/s. Evehans Academy in short as found in
the said report. It is pertinent to note that the IO has
collected all these documents during investigation, but
has not opted to investigate the matter in that regard. As
79 Spl.CC.69/2021per the said report, PW.5 himself stated that no HAL
Employee involved in the subject matter. However, the
entire things were changed thereafter. Further, as
discussed earlier, since the prosecution has failed to
prove the payment of Rs.1.30 Crores as contended, the
Departmental Enquiry Report is not much helpful to the
prosecution to prove the case against the accused
persons.
77. So far as Ex.P.29 Sale Deed of accused No.1 in
the custody of PW.5 is looked into, admittedly, the said
original Sale Deed was in the custody of PW.5 and he has
produced the said Sale Deed before the IO under Ex.P.28.
Even PW.5 in his evidence stated that accused No.1
personally handed over the said Sale Deed to him stating
that the property involved in the said Sale Deed is worth
more than Rs.50 lakhs and asked him to keep the same
as security till payment of Rs.50 lakhs by him. In Ex.P.15
complaint, PW.5 has stated that when he asked the
money back, the accused No.1 has given the original
documents of his property as pledge for the amount
borrowed. But as discussed earlier, since the payment of
amount itself is not proved, it cannot be assumed that
accused No.1 has given the said Sale Deed to PW.5 as
stated by him. Further, the said Sale Deed stated to be
given as pledge for the amount borrowed, but it is not the
case of the prosecution that the accused No.1 had
borrowed the money from PW.5 and pledged the Sale
Deed as security. Even there is no clear evidence as to
80 Spl.CC.69/2021
when accused No.1 had given Ex.P.29 Sale Deed in
favour of PW.5.
78. It is also noticed that as found in Ex.P.29, the
property involved in the said Sale Deed was purchased in
the year 2006 i.e., on 27.10.2006 for a total sum of
Rs.36,000/-. The said Sale Deed is stated to be pledged
towards payment of Rs.50 lakhs. There is no material to
show that the value of the said property was enhanced to
Rs.50 lakhs. As already stated, there is no evidence as to
when accused No.1 had handed over the said Sale Deed
in favour of PW.5. It is noticed that the accused No.1,
while recording his statement under Section 313 of the
Cr.P.C., (Question No.70) stated that he has not given any
Sale Deed to PW.5 and he had filed a Police complaint for
loss of his original Sale Deed. Even during cross-
examination of PW.5, the accused No.1 has taken
contention that he had not given Ex.P.29 Sale Deed to
PW.5 and the said Sale Deed is created for this case. In
this regard, at the time of filing the written synopsis, the
learned counsel for accused No.1 has produced the copy
of Form-A filed under Section 6(1) of the Right to
Information Act and copy of the police complaint dated
08.02.2018 for having given police complaint regarding
loss of original registered Sale Deed dated 27.10.2016
i.e., Ex.P.29. As per Ex.P.15, the complaint was lodged by
PW.15 on 29.08.2018 i.e., subsequent to the Police
petition stated to be given by accused No.1. But, as
submitted by the learned Senior Public Prosecutor, the
accused No.1 has not produced authenticated copy of the
81 Spl.CC.69/2021
complaint. But, the IO could have investigated the matter
when PW.5, the de-facto complainant has stated that
accused No.1 had given original Sale Deed as security.
But, the IO has not opted to investigate the matter in that
regard. Even, the IO during his cross-examination stated
that she had not made any investigation with regard to
handing over of Ex.P.29 Sale Deed by accused No.1 to
CW.2. But stated that it is there in the whatsapp chats
between CW.2 and accused No.2. But the said whatsapp
chats is not found to be authenticated and nothing could
be shown in the whatsapp chats in that regard. Added to
that, when very payment of either Rs.1.30 Crores or
Rs.50 lakhs is not proved by the prosecution, the giving
of Sale Deed as security for the said amount is doubtful.
Under these attending circumstances, this court is of the
considered view that just because PW.5 had possessed
the Sale Deed of accused No.1, the said circumstance
cannot be considered as one of the supporting
circumstances to the prosecution version.
79. So far as cheques issued by accused No.2 in
favour of PW.5 as per Ex.P.30 to P.34 for Rs.1.30 Crores
is concerned, the accused No.2 has not disputed that
Ex.P.30 to P.34 cheques belonged to him, but disputed
issuance of said cheque in favour of PW.5 towards
payment of any amount to PW.5. In that regard, while
recording the statement under Section 313 of the Cr.P.C.,
(Question No.71) accused No.2 denied issuance of
Ex.P.30 to P.34 cheques in favour of PW.5 for making
payment of Rs.1.30 Crores. In the written statement filed
82 Spl.CC.69/2021
by accused No.2, he has specifically contended that
because of his serious illness, PW.5 brought pressure on
him through the Police and at the call of the Police, he
got 5 signed cheques forcibly from him saying that they
will set free from the case. In fact, he was never under
any due to PW.5 and hence filed complaint with the
Police about use of criminal force and forcibly taken
signed cheques from him. Further, as a matter of
caution, immediately he informed the Bank for ‘stop
payment’.
80. With regard to this fact, it is pertinent to note
that in Ex.P.15 complaint, PW.5 has not stated anything
as to issuance of cheques as per Ex.P.30 to P.34 by
accused No.2 towards payment of the amount taken
towards leasing of the HAL land. Now, the Ex.P.30 to P.34
are looked into, Ex.P.30 cheque dated 19.04.2018,
Ex.P.31 cheque dated 09.05.2018, Ex.P.32 cheque dated
19.05.2018 for Rs.25 lakhs each, Ex.P.33 cheque dated
29.05.2018 for Rs.30 lakhs and Ex.P.34 cheque dated
29.04.2018 for Rs.25 lakhs. These cheques were found
to be issued in the month of April and May 2018 i.e.,
much prior to the filing of the complaint by PW.2 before
HAL (Vigilance). If at all such cheques were issued
towards payment of the amount taken towards lease of
land, PW.2 ought to have stated the same in Ex.P.15
complaint. But he has not stated anything in that regard
and totally suppressed this fact for the reason best
known to him.
83 Spl.CC.69/2021
81. Added to above, it is noticed that admittedly,
Ex.P.30 to P.34 cheques were presented for encashment
and out of the said cheques 4 were dishonoured for the
reason ‘payment stopped by the drawer’ and one is for
‘funds insufficient’. In pursuance of the dishonour of the
said cheques, PW.5, through his SPA Holder
Sri.N.Sathyanarayana (PW.10) filed private complaints in
respect of each cheque before the 58th Addl. Chief
Metropolitan Magistrate, Bengaluru for the offence
punishable under Section 138 of the Negotiable
Instruments Act. In this regard, the accused No.2 has
produced the certified copy of the order sheet relating to
CC.No.55899/2018, CC.No.57183/2018, CC.No.55901/2018
CC.No.57184/2018 and CC.No.55902/2018 along with
certified copy of the private complaint. On going through
the said documents, it is clear that prior to the filing of
the complaint before the HAL, as per Ex.P.15, PW.5 has
filed the complaint through his SPA Holder against
accused No.2 with regard to the said cheques. But this
fact is totally suppressed by PW.5 while filing complaint
before HAL as per Ex.P.15. It is further noticed from the
certified copy of the order sheet relating to the above
cases that all the 5 private complaints, which are
numbered as CC.No.55899/2018, CC.No.57183/2018,
CC.No.55901/2018 CC.No.57184/2018 and
CC.No.55902/2018 were dismissed for non-prosecution on
08.12.2022. It appears that PW.5 has not taken any
steps against the dismissal of the case for non-
prosecution and allowed the same to rest. At this
juncture, if the said complaint averments are looked into,
84 Spl.CC.69/2021
the complaints reveal that entire amount of Rs.1.30
crores was stated to be paid to accused No.2. In the said
complaint, nothing was stated as to conspiracy between
accused Nos.1 and 2, payment made to accused No.1 as
contended in the present case and entire amount stated
to be collected by accused No.2 himself. Therefore, the
contents of the private complaint creates doubt as to the
case of the prosecution with regard to the alleged
payment.
82. Along with the above aspects, at this stage, this
court has perused the Account Statement of the accused
No.2 produced by the prosecution as per Ex.P.61. There
is no dispute as to the contents of the said document. On
going through the said Account Statement, it is noticed
that a sum of Rs.10 lakhs was transferred from the
account of accused No.2 to Sri.K.C.Samuel by RTGS.
This fact is also not disclosed by PW.5. On the other
hand, the accused No.2 in his written statement
specifically contended that he was in need of money for
continued treatment of his illness and he had taken hand
loan of Rs.10 lakhs from Sri.K.C.Samuel (PW.5), later the
same was returned to him. Ex.P.61 Account Statement
reveals payment of Rs.10 lakhs in favour of PW.5 by
accused No.2 on 30.04.2018. This shows some financial
transaction between accused No.2 and PW.5. No where
PW.5 has stated as to returning of any amount by
accused persons towards alleged payment of Rs.1.30
Crores. As already discussed, since there is no
acceptable evidence as to payment of Rs.1.30 Crores in
85 Spl.CC.69/2021
favour of accused Nos.1 and 2 by PW.5, the giving of
cheques as per Ex.P.30 to P.34 towards discharge of the
said amount give rise to suspicion. On the other hand, it
appears that there was some other financial transaction
between accused No.2 and PW.5.
83. Now, it is also interesting to note that the
prosecution has produced 5 cheques of one Sri.Jikku
Joseph, as per Ex.P.35 to P.39 for a total sum of Rs.1.95
Crores. All the said cheques were found to be issued in
the month of October, 2017 between 19.10.2017 to
24.10.2017. In this regard, PW.5 in his evidence stated
that Ex.P.35 to P.39 cheques were issued by Sri.Jikku
Joseph, for a total sum of Rs.1.95 Crores to him for
payment of Rs.1.30 Crores taken by accused Nos.1 and
2. This fact is also not stated in Ex.P.15 complaint. It is
not understood, why PW.5 had taken cheques from
Sri.Jikku Joseph, to the tune of Rs.1.95 Crores when the
claimed amount was Rs.1.30 Crores. It is also not
understood why Sri.Jikku Joseph, issued the said
cheques in favour of PW.5, when the amount was stated
to be paid to accused Nos.1 and 2. This fact is also
suppressed by PW.5. Further, the contents of the said
cheques are analyzed, out of the said 5 cheques, 3
cheques for a total sum of Rs.1.25 Crores is found to be
blank with regard to the “payee’s name” and only two
remaining cheques were filled up with payee’s name as
“K.C.Samuel” (PW.5). Therefore, it appears that PW.5
takes unfilled cheques by filling only the amount. This
conduct of PW.5, suppression of material facts by him
86 Spl.CC.69/2021
and the nature of the financial transaction alleged in this
case, are considered together, definitely they affect credit-
worthiness of evidence of PW.5. It is further noticed that
Ex.P.38 and P.39 cheques each for Rs.35 lakhs in the
name of PW.5 was presented for encashment and the
same were returned dishonoured. PW.5 has not stated
anything as to action taken on the dishonour of the said
cheques. As already stated, in this case, the IO has not
opted to examine said Sri.Jikku Joseph, though he is
found to be a material witness. Under these attending
circumstances, this court did not find much substance in
the argument of the learned Senior Public Prosecutor
that the issuance of cheques by accused No.2 corroborate
the case of the prosecution.
84. Now, the whatsapp chats as put up by the
prosecution is analyzed, the prosecution has relied on the
whatsapp chats between PW.5 and accused Nos.1 and 2
through their mobile phones to support its version. The
whatsapp chats print-out between accused No.2 and
PW.5 is produced as per Ex.P.23 with certificate of PW.5
under Section 65-B of the Indian Evidence Act, 1872 as
per Ex.P.23(a). The connected proceedings drawn on
11.09.2020 for taking print-out of Ex.P.23 is produced
as per Ex.P.22. Further, the whatsapp chats between
PW.5 and accused No.1 is produced as per Ex.P.53 with
certificate of PW.5 under Section 65-B of Indian Evidence
Act, 1872 as per Ex.P.53(a). The proceedings drawn on
09.12.2020 for taking print-out of Ex.P.53 is produced as
per Ex.P.52. As already stated, it is not in dispute that
87 Spl.CC.69/2021
mobile number 9945755305 belonged to PW.5, mobile
number 9480809046 belonged to accused No.1 and
mobile number 9845012171 belonged to accused No.2.
Further, there is no dispute as to the seizure of the
mobile phone No. 9945755305 of PW.5 as per Ex.P.75 on
20.07.2021. Even, the prosecution has examined PW.5,
PW.12 Sri.P.Ravindran and the IO, with regard to Ex.P.22
proceedings. The prosecution has examined PW.5 and
the IO with regard to Ex.P.52 proceedings.
85. Now, the contents of Ex.P.22 proceedings and
P.23 whatsapp chats print-out are considered, it is clear
that on 11.09.2020, PW.5 had produced his mobile to
collect whatsapp chats between himself and accused
No.2. Accordingly, the whatsapp chats between PW.5 and
accused No.2 were exported to e-mail ID of PW.5 and
thereafter the same was logged by PW.5 in the system
installed by CBI/ACB and the print-out of the whatsapp
chats from 09.05.2017 to 16.03.2020 between accused
No.2 and PW.5 was taken out in the txt format. Further,
print-out of screenshot of g-mail and one screenshot
application of PW.5 was obtained showing profile details
of accused No.2, which is marked as Ex.P.24. Thereafter,
the chats exported and Ex.P.24 were copied to CDR,
which is marked as Ex.P.26. But in this regard, it is
pertinent to note that the IO has not taken screenshot
print-out of the whatsapp chats before exporting the
same to the e-mail ID of PW.5. Even, the IO has not
taken hash value of the whatsapp chats before exporting
it to the e-mail ID of PW.5. Only print-out of the exported
88 Spl.CC.69/2021
whatsapp chats in txt form was taken out. This being the
case, there is every possibility of alteration of whatsapp
chats when it is exported to the e-mail and print-out was
taken in the txt format. Such being the case, no
authenticity could be given to Ex.P.23 whatsapp chats
and that cannot be relied upon. The matter would have
been different, if the screenshot of the whatsapp chats
and its hash value were taken by the IO before exporting
the same to e-mail of PW.5 and produced before the
court. But this process was not done by the IO which
affects very authenticity and reliability on whatsapp
chats print-out taken. There is no material to compare
the print-out of the whatsapp chats taken in chats.txt
format. Even, the certificate given under Section 65-B of
the Indian Evidence Act along with Ex.P.23 is not in-
consonance with requirement of the said provision.
Therefore, Ex.P.23 cannot be used to support the version
of the prosecution.
86. So far as whatsapp chats between PW.5 and
accused No.1 is analyzed, Ex.P.52 proceedings dated
09.12.2020 is similar to Ex.P.22 proceedings and the
same procedure was being followed by the IO and
exported the whatsapp chats to e-mail ID of PW.5 and
thereafter, e-mail was logged and print-out of the
whatsapp chats was taken in txt format. Here also, the
IO has not taken screenshot copy of the whatsapp chats
and its hash value before exporting it to e-mail of PW.5.
Only print-out of exported whatsapp chats between PW.5
and accused No.1 for a period from 23.01.2018 to
89 Spl.CC.69/2021
10.07.2018 was taken in the txt format. Therefore, there
is every possibility of tampering of the whatsapp chats as
per Ex.P.53 and no authenticity and reliability could be
given to it. As already stated, if the IO has taken
screenshot copy of the whatsapp messages with its hash
value before exporting it to e-mail and taking its print-out
in the txt format, the matter would have been different.
Here also, IO has not followed the said procedure and
therefore Ex.P.53 whatsapp chats cannot be relied. Even,
the certificate attached to whatsapp chats as per
Ex.P.53(a) is also not in-consonance with Section 65-B of
the Indian Evidence Act. Under these attending
circumstances, the whatsapp chats relied on by the
prosecution has no consequence and serves no purpose.
87. At this stage, it is pertinent to note that in this
case, the IO has not produced the mobile seized as per
Ex.P.75. Further, it is also interesting to note that the
proceedings for taking print-out of the whatsapp chats
between PW.5 and accused No.2 was conducted on
11.09.2020 as per Ex.P.22 and proceedings for taking out
the print-out of the whatsapp chats between PW.5 and
accused No.1 was conducted on 09.12.2020 and on the
said date, the mobile phone of PW.5 was produced. But,
the IO had not opted to seize the said mobile phone.
However, as found in Ex.P.75, on 20.07.2021, the IO
seized the mobile of PW.5. It is not understood, why the
IO had not seized the mobile either on 11.09.2020 or at
least on 09.12.2020, on which the whatsapp chats print-
out was taken. In this regard, it is interesting to note that
90 Spl.CC.69/2021
after seizure of the mobile as per Ex.P.75, the IO had sent
the mobile to the Director of FSL under letter dated
03.08.2021 for retrieving the deleted/ formatted
whatsapp chats from the mobile of PW.5. In the said
letter, it is stated that the mobile phone of PW.5 was said
to be broken accidentally and got it repaired by PW.5
before seizing the same. During repair, the mobile phone
was said to be formatted and therefore, the whatsapp
chats are not available in the said mobile phone. If the
mobile phone was seized at the earlier instance itself,
then, there was no scope for this kind of situation.
Under these attending circumstances, it creates doubt as
to the conduct of the IO. Further, the IO has not
produced the seized mobile as well as the report of the
FSL in that regard. Therefore, viewed from any angle, the
whatsapp chats relied by the prosecution cannot be
looked into. On the other hand, the way in which the
whatsapp chats print-out was taken and subsequent
seizure of the mobile phone, when the whatsapp chats
are not available in the mobile phone, again give rise to
suspicion as to the investigation conducted in this case
and probabalise the contention of the accused that the IO
had facilitated PW.5.
88. Thus, for the reasons discussed above in detail,
the circumstances relied by the prosecution to support
the charges leveled against the accused persons cannot
be accepted. Now, the case of the prosecution with regard
to visit of the sites is concerned, PW.5, PW.8 and PW.10
in their evidence have stated in that regard. Though
91 Spl.CC.69/2021
PW.5 stated as to visit of the site along with PW.10 and
accused No.1 and 2 had shown the site situated at
Doddanakundi Village, Behind ISRO Complex, he has not
stated as to when did they visit the site. However, PW.10
in his evidence stated that in the month of May, 2017
they visited the spot along with accused Nos.1 and 2 and
they had shown the site situated opposite of ISRO
Complex, Doddanakundi Village, Marathalli Bengaluru.
PW.5 stated that the site was behind the ISRO Complex
and whereas, PW.10 stated that it is opposite of ISRO
Complex. There is no convincing and acceptable evidence
as to visit of the site. It is not understood when the site
itself is not identified with its number, boundaries and
ownership, how PW.5 and PW.10 could say as to visit of
the site of the HAL. Further, it is also noticed that during
cross-examination, PW.5 has stated that he had not seen
title documents of HAL relating to the property promised
to be leased to M/s. Evehans Academy Society. He is
having written correspondence as to visit of the site. But
such correspondence were neither secured by the IO nor
produced before this court.
89. So far as the visit of the alternative site is
concerned, there is evidence of PW.8 and PW.10. It is
clear that PW.5 had not seen the alternative site. Though
PW.8 has stated as to visit of the site, he further stated
that the site was shown from the outside as it was locked
and hence they could not go inside the site and they had
seen the site from outside by standing near the road.
PW.10 in his evidence stated that himself and PW.8
92 Spl.CC.69/2021
visited the alternative site opposite of Marathalli Market,
Old Air Port Road in the month of July, 2017. Here also
there is no convincing and acceptable evidence as to their
visit to the site as the identity of the site itself was not
disclosed. Added to this, it appears that the IO has not
conducted any investigation in that regard so as to
ascertain which property was promised to be leased and
whether it was belonging to HAL. The IO has not
conducted any mahazar with regard to the property
alleged to have been shown by accused Nos.1 and 2, so
as to induce PW.5 to part with the money. Therefore,
there is no convincing and acceptable evidence to hold
that the accused Nos.1 and 2 had shown the site
proposed to be leased in favour of M/s. Evehans
Academy, as contended by the prosecution.
90. Thus, on carefully going through the entire
evidence made available on record by the prosecution,
this court did not find any convincing and acceptable
evidence as to inducement of PW.5 by the accused
persons so as to part with the money as stated by him.
In Ex.P.15 complaint is also silent in that regard except
stating that accused No.1 has handed over the letter
personally assuring lease of land in favour of
M/s.Evehans Academy. But as already discussed, there
is no acceptable evidence to hold that accused No.1 had
given letter to PW.5 assuring the lease of land in favour of
M/s. Evehans Academy as contended. It is pertinent to
note that PW.5 had not lodged any information to the
Police to take legal action against the accused persons. If
93 Spl.CC.69/2021
at all, the accused persons have cheated PW.5 by giving
false promise and made him to deliver such huge amount
of Rs.1.30 Crores, being a prudent person, immediately,
he could have lodged the police petition. But he has not
opted to take such steps for the reason best known to
him. The evidence of PW.5 reveals that in the month of
June,2017 PW.10 visited the General Manager of HAL
Sri.G.V.Rao (PW.2) when the alleged lease transaction
was no materialized. But, PW.5 lodges the complaint
before the HAL as per Ex.P.15 only in the month of
August, 2018. So, there is inordinate delay in lodging the
complaint as per Ex.P.15 before the Vigilance of HAL by
PW.5. However, the evidence of PW.5 reveals that since
the accused persons started begging him not to go with
the case, promising to pay back the money taken and
even handed over the cheques and documents, there was
a delay. But this fact is not found in Ex.P.15 complaint.
Non-filing of any police petition and filing of the
complaint before the Vigilance, HAL with unexplained
inordinate delay also cast doubt with regard to the case
of the prosecution. As already stated, material facts have
been found to be suppressed in Ex.P.15.
91. No doubt, as argued by the learned Senior
Public Prosecutor, relying on the decision of the Apex
Court, (1999) 3 SCC 259, it is not necessary that the
complaint should contain all the ingredients of the
offence alleged, if the facts stated in the complaint lay the
factual foundation for the offence alleged. In this regard,
this court is being guided by the relied decision. But on
94 Spl.CC.69/2021
going through the said decision, this court found that the
said decision is not helpful to the prosecution, as in this
case in Ex.P.15, PW.5 has not disclosed material facts
sufficient to lay the factual foundation for the offence
alleged and on the other hand, there is suppression of
material fact. Further, information statement/ complaint
to the Police was not given by PW.5, though he is stated
to be victim of the crime.
92. At this stage, on going through the contents of
Ex.P.6 letter dated 21.09.2017, it is noticed that PW.2
Sri.G.V.Rao, requested accused No.1 to lodge the police
complaint to find out the culprits involved in issuance of
Ex.P.18 to P.20 letters, in the matter of leasing of HAL
land at Doddanakundi. In pursuance of the said letter,
as found in Ex.P.8 letter dated 22.09.2017, accused No.1
intimated PW.2 regarding action initiated by him on the
basis of Ex.P.6 letter. The contents of Ex.P.9 reveal that
accused No.1 had submitted copy of the letter dated
11.10.2017, issued by DGM (IT)-RC IT Department,
RWRDC and copy of the Police Petition dated 21.09.2017
to PW.2 for information. In pursuance to the same, PW.2
through e-mail dated 13.10.2017 as per Ex.P.10,
requested accused No.1 to lodge the complaint as to
“fraud and forgery” instead of “mis-use of company letter-
head” and pursue the matter with Police authorities to
find out the culprits involved in the case. Pursuant to the
said e-mail, accused No.1 had sent e-mail dated
14.10.2017 as per Ex.P.11 to PW.2 intimating steps taken
to modify the complaint as suggested in Ex.P.10.
95 Spl.CC.69/2021
Therefore, on going through these documents, it is clear
that as per the request of PW.2, the accused No.1 himself
lodged Police Petition/ First Information Statement to the
Assistant Commissioner of Police, HAL Police Station,
Bengaluru on 11.10.2017 requesting to take necessary
action in the matter (Copy of the said Police Petition is
available along with Ex.P.9). But, it is not understood
whether any case has been registered or any action had
been taken on the basis of the said information
statement by the Police.
93. In this regard, the evidence of the IO during her
cross-examination is analyzed, it is clear that she had
gone through the letter dated 21.09.2017 written by
accused No.1 to the Assistant Commissioner, HAL Police
Station, but she had not conducted any investigation in
that regard. This shows that initially, the action was
initiated with regard to Ex.P.18 to P.20 letters by accused
No.1 before the concerned Police, but the IO has not
opted to consider the said matter during her
investigation, though it was within her knowledge. This
also affects the version of the prosecution. All these
actions were taken much prior to the filing of the
complaint by PW.5 before HAL Vigilance. It is pertinent
to note that subsequent to Departmental Enquiry and its
findings, PW.1 had set the criminal law into motion by
filing First Information Statement as per Ex.P.1 on
17.08.2020. But, in Ex.P.1 also, nothing is stated as to
filing of the earlier complaint in the matter before the
HAL Police Station in connection with the matter involved
96 Spl.CC.69/2021
in this case. It appears that entire case of the prosecution
is based on the Departmental Enquiry held by the HAL
against accused No.1 and no allegations are found in
Ex.P.1 as against accused No.2 and there is no allegation
as to conspiracy between accused No.1 and 2, as
contended by the prosecution.
94. Thus, considering the entire oral and
documentary evidence, this court is of the considered
view that the prosecution has failed to prove with
convincing, cogent and acceptable evidence as to
fraudulent and dishonest inducement of PW.5 in the
matter of leasing of the HAL land by accused persons and
thereby delivery of Rs.1.30 Crores by PW.5 in favour of
the accused in that regard. Even, it is clear that the IO
being the part of the renowned Investigating Agency, has
not conducted the investigation as required. It appears
that only on the basis of Enquiry Report produced as per
Ex.P.17, the IO has based her investigation and filed final
charge sheet without any proper investigation. The IO
has neither opted to collect the required available
documents nor examined and recorded the statement of
material witnesses. It appears that only for the name
sake, charge sheet has been filed without proper
investigation to unearth the truth. Therefore, viewed from
any angle, it cannot be said that the prosecution has
proved the ingredients of the offence of cheating against
accused Nos.1 and 2 beyond reasonable doubt as
required. Further, there is no convincing and acceptable
evidence as to conspiracy hatched by the accused for the
97 Spl.CC.69/2021
purpose of cheating PW.5 in the matter of leasing of the
HAL land as contended. Hence, the evidence on record
will not permit to hold that the prosecution has proved
the necessary ingredients of the offence of conspiracy
beyond reasonable doubt. No acceptable circumstances
are being made out to accept the alleged conspiracy
between accused Nos.1 and 2.
95. In this case, though the prosecution has
examined PW.1 Sri. I.Mohanlal, regarding filing of First
Information Statement, PW.2 Sri.G.Venkateshwara Rao
regarding certain factual aspects and furnishing of the
documents, PW.3 Sri.K.C.Manjunath, regarding
furnishing of the documents, CW.5 Sri.Ranjith R,
regarding conducting of internal investigation/
Departmental Enquiry against accused No.1 and other
formal witnesses, they are found to be of no assistance to
the prosecution as the prosecution has failed to prove the
necessary ingredients of the offence leveled against the
accused persons. Therefore, their evidence needs no
much consideration in detail.
96. As already stated, in this case, the accused No.1
is prosecuted for the offence under Section 13(1)(d)
punishable under Section 13(2) of the PC Act. But as
discussed above in detail, there is no convincing and
acceptable evidence to hold that the accused No.1 has
mis-used his official position in the matter of leasing of
HAL land in favour of M/s.Evehans Academy and to
connect the accused No.1 with the alleged lease
transaction. There is no convincing and acceptable
98 Spl.CC.69/2021
evidence to hold that the accused No.1, by mis-using his
official position, obtained for himself and for accused
No.2 any pecuniary advantage as alleged by the
prosecution. The evidence on record is not sufficient to
prove the ingredients of the said offence beyond
reasonable doubt. Hence, it cannot be held that the
prosecution has proved the said offence against accused
No.1 beyond reasonable doubt.
97. At this stage, this court is also being guided by
the decisions relied by the learned Senior Public
Prosecutor, reported in (1999) 5 SCC 740, AIR 1967 SC
752, (1998) 1, SCC 550 and the decision in
Crl.A.No.1438/2011. But, on going through the facts of
the said case along with the facts of the present case, this
court is of the considered view that the facts of the
present case in any angle, permit the applicability of the
said decisions to the facts of the case on hand, though in
the said cases also the offence of cheating is involved
except in Crl.A.No.1438/2011. This court is also being
guided by the decision of the Hon’ble Apex Court relied
by the learned counsel for accused No.2 in Crl.A.No.211/
2023, wherein, the Hon’ble Supreme Court has
emphasized the importance of recording statement of the
accused under Section 313 of the Cr.P.C., However, the
said decision is not much helpful in this case.
98. Thus, for the reasons discussed above, this
court is of the considered view that the prosecution has
failed to prove the necessary ingredients of the offences
99 Spl.CC.69/2021
leveled against the accused persons beyond reasonable
doubt. The case of the prosecution is found to be netted
with the circumstances creating serious doubt, which
enures the benefit to the accused. Further, the
investigation so as to unearth the truth is also found to
be defective. Under these attending circumstances, this
court is constrained to hold that the prosecution has
failed to prove the Point Nos.2 and 3 in its favour as
against accused persons and accordingly, Point Nos.2
and 3 are answered in the negative.
99. Point No.4: For the reasons discussed in
connection with point Nos.1 to 3 and findings given
thereon, this court proceeds to pass the following;
ORDER
Acting under Section 235(1) of the
Cr.P.C., the accused Nos.1 and 2 are
acquitted for the offences punishable under
Sections 120B, 420 read with Section 120B
of the Indian Penal Code and accused No.1 is
also acquitted for the offence under Section
13(1)(d) punishable under Section 13(2) of
the Prevention of Corruption Act, 1988.
The bail bonds of the accused Nos.1
and 2 and that of their sureties stand
cancelled.
The cash security of Rs.1 lakh,
deposited by accused No.2 as per order dated
02.03.2022 is ordered to be refunded to
100 Spl.CC.69/2021
accused No.2 with accrued interest, as the
said amount is deposited in Fixed Deposit.
(Dictated to the Stenographer Gr.I directly on the
computer, corrected and then pronounced by me in the Open
Court on this the 17th day of April, 2025)
(Shridhar Gopalakrishna Bhat)
XXI Addl. City Civil and Sessions Judge,
& Prl. Special Judge for CBI Cases,
Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
PROSECUTION:
PW.1 Sri.I. Mohanlal.
PW.2 Sri. G. Venkateswara Rao
PW.3 Sri.C.K.Manjunath
PW.4 Sri. Renjith R
PW.5 Sri. K.C. Samuel
PW.6 Smt. Sheela D
PW.7 Sri. P.J. Jacob
PW.8 Sri. Sajjad Rahim
PW.9 Smt. Sowmya R
PW.10 Sri. N. Satyanarayana
PW.11 Sri. Rahul S.M. Nair
PW.12 Sri. P. Ravindran
PW.13 Sri. Rajkumar Bhole
PW.14 Sri. Rajagopalan Madhavan
PW.15 Smt. Suman Saini
101 Spl.CC.69/2021
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
NIL
LIST OF DOCUMENTS MARKED FOR THE
PROSECUTION:
Exhibit Description Number Ex.P.1 First Information Statement
Ex.P.1(a) Signature of the witness/PW.1
Ex.P.2 Prior consent from the Competent Authority to file
the first information statement against A.1 with CBI.
Ex.P.2(a) Signature of Sri.R.Madhavan
Ex.P.3 The Production memoEx.P.3(a) Signature of the witness/ PW.1
Ex.P.4 Land Management Policy produced before the I.O
Ex.P.5 The production memoEx.P.5(a) Signature of the witness/PW.2
Ex.P.6 Copy of the letter written by PW.2 to Sri Velmurugan
Ex.P.7 The letter dtd:22.09.20 sent by DGM
(L & E) through PW.2
Ex.P.8 The letter dated:22.09.2017 written by Sri
Velmurugan to PW.2
Ex.P.9 The letter dated:12.10.2017 written by Sri
Velmurugan to PW.2
Ex.P.10 The copy of the E-mail dated:13.10.2017Ex.P.10(a) Signature of the witness / PW.2
Ex.P.11 The copy of the E-mail dated:14.10.2017Ex.P.11(a) Signature of the witness / PW.2
Ex.P.12 The Production Memo
Ex.P.12(a) Signature of the witness / PW.3
Ex.P.13 Covering letter
Ex.P.13(a) Signature of the witness/ PW.3
Ex.P.14 The punishment order passed by the Chairman and
Managing Director (Disciplinary Authority)
102 Spl.CC.69/2021Ex.P.14(a) Signature of the witness/PW.3.
Ex.P.15 The complaint lodged by CW.2-Dr.K.C Samuel
Ex.P.15(a) Signature of PW.5
Ex.P.16 The production memo
Ex.P.16(a) Signature of the witness
Ex.P.17 The investigation report
Ex.P.17(a) The signature of the witness/PW.4
Ex.P.18 The letter dated 21.04.2017 given by Sri.Binish
Thomas to PW.5
Ex.P.19 The letter dated 08.05.2017
Ex.P.19(a) Signature of Sri. Velmurugan
Ex.P.20 The letter dated 19.06.2017
Ex.P.20(a) Signature of Sri. Velmurugan
Ex.P.21 The original letter dated 20.06.2017 with
acknowledgment issued by the receptionist.
Ex.P.21(a) Endorsement with signature of the PW.9
Ex.P.22 Drawing proceedings about taking of mobile phone of
Sri. K.C. Samuel in the presence of the witnesses.
Ex.P.22(a) The signature of the witness identified by the
witness/PW.5
Ex.P.22(b) Signature of the witness on the proceedings
Ex.P.23 Whatsapp chats printout with Sec.65-B certificate
(containing 55 sheets)
Ex.P.23(a) The signature of the witness(PW.5) in Sec.65-B
certificate
Ex.P.23(b) Signature of the witness on whatsapp
Ex.P.24 The said e-mail profile printout with Sec.65-B
certificate
Ex.P.24(a) The signature of the witness (PW.5) in the certificate
Ex.P.25 The sealed cover containing the CDR
Ex.P.25(a) Signature of the witness/PW.5
Ex.P.26 The CDR which is found in the sealed cover
Ex.P.27 The Specimen Seal used for sealing the sealed cover.
103 Spl.CC.69/2021
Ex.P.28 The production memo
Ex.P.28(a) Signature of the witness
Ex.P.29 The original sale deed dated 27.10.2006 produced by
PW.5 before the CBI Inspector
Ex.P.30 Ten Cheques produced by PW.5 before the I.O
to
Ex.P.39
Ex.P.40 Production memo
Ex.P.40(a) Signature of the witness/PW.5
Ex.P.41 Pen Drive produced by PW.5
Ex.P.41(a) Sec.65-B Certificate
Ex.P.41 The signature of the witness/PW.5 on Sec.65-B
(a-1) certificate
Ex.P.42 The sealed cover- Pen drive in CD mailer cover
Ex.P.42(a) Signature of the witness/PW.5
Ex.P.43 The Specimen seal
The signature of the witness/PW.5
Ex.P.43(a)
Ex.P.44 7 DDs are marked
to
Ex.P. 50
Ex.P.51 Cancellation letter
Ex.P.52 Proceedings prepared by the I.O
Ex.P.52(a) Signature of the witness /PW.5
Ex.P.53 The Whatsapp chats with e-mail profile printout
Ex.P.53(a) The Sec.65-B Certificate
Ex.P.53 The signature of the witness in Ex.P.53(a)
(a-1)
Ex.P.54 Documents viz., letter dated 21.10.2020, circular
to dated 07.09.2017, letter dated 16.09.2017, Admin
Ex.P. 58 notice No.12 dated 15.12.2017 and letter dated
09.03.2018 handed over to the CBI Inspector.
Ex.P.54(a) Signature of accused No.1
to
Ex.P.58(a)
Ex.P.59 The covering letter dated 10.09.2020 submitted by
CW.12 along with copy of the service particulars of
the accused No.1 (Marked by consent on behalf of
104 Spl.CC.69/2021
prosecution)
Ex.P.60 The Account Opening Form with KYC document
(together marked)
Ex.P.61 The Account Statement with Certificate U/s 65-B of
Indian Evidence Act
Ex.P.62 The Production Memo prepared by Investigation
Officer (signature also there)
Ex.P.63 The Search List dated 31.08.2020.
Ex.P.63(a) Signature of the witness /PW.13
Ex.P.64 The Inventory
Ex.P.64(a) Signature of the witness / PW.13
Ex.P.65 The Sanction Order
Ex.P.65(a) Signature of the witness at the end of the order
Ex.P.66 The covering letter written by General Manager (HR)
and and forwarding letter written by the Chief Vigilance
Ex.P.67 Officer to the Superintendent of Police/CBI/ACB/
BLR.
Ex.P.68 The Appendix-I to HAL CDA Rules-1984
Ex.P.69 Production Memo dated 24.11.2020.
Ex.P.70 Production Memo dated 10.02.2020.
Ex.P.71 The FIR with complaint (together marked)
Ex.P.71(a) Signature of the witness
Ex.P.72 The Customer Agreement Form (CAF) of HAL (6
sheets) (By Consent)
Ex.P.73 CAF of accused No.2 (3 sheets) (By Consent)
Ex.P.74 Customer Relationship Form of K.C Samuel (1 sheet)
(By Consent)
Ex.P.75 The proceedings drawn on 20.07.2021 containing 2
sheets with specimen seal. (By Consent)
LIST OF DOCUMENTS MARKED FOR THE DEFENCE :
– NIL –
105 Spl.CC.69/2021
(Shridhar Gopalakrishna Bhat)
XXI Addl. City Civil and Sessions Judge,
& Prl. Special Judge for CBI Cases,
Bengaluru.
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