ANKEGOWDA Vs. STATE

JUDGEMENT

(1.) Heard Sri B. Basavaraju, learned counsel appearing on behalf of Sri C. G. Sundar, for petitioner and Sri S. Rachaiah, learned HCGP appearing for State and perused records.

(2.) Assistant Executive Engineer, Udupi Municipality lodged a complaint alleging that during 01.04.1999 to 31.03.2000, accused Nos. 1 and 2 working as Municipal Commissioners, accused Nos. 3 and 4 working as Junior Engineers in Water Supply Section, accused No.5 working as First Division Clerk in Water Supply and Sanitation Division and accused No.6 who was a contractor for water supply and sanitation materials supply, in Udupi Town Municipality had created fake receipts, prepared bills on the basis of said fake receipts, submitted the same to the District Treasury and had obtained amount and used the same for their own use though they were required to call for tender for water supply and sanitation material supply to the Udupi Town Municipality and even after obtaining said tender, they had not done so and as such had committed above said offences.

(3.) On the basis of said complaint lodged, the Deputy Superintendent of Police, Special Enquiries, C.O.D, Bengaluru, investigated the case and has filed the charge sheet against accused Nos. 1 to 6 for the offences punishable under Sections 465, 471, 409 read with Sec. 34 of IPC. Learned Magistrate has taken cognizance of said offence and has issued summons. Accused Nos.1, 3 to 6 had filed separate applications under Sections 239 of Crimial P.C. for their discharge contending inter alia that as per Sec. 296 of Karnataka Municipalities Act, 1964, Director of Municipal Administration after recommendation of Controller State Accounts Department and after obtaining explanation from the concerned person and if necessary by making further enquiry can disallow any item which appears to be contrary to law and surcharge the same and said procedure had not been adopted and if at all there was any misappropriation by petitioner, proper enquiry ought to have been conducted by the Director of Municipal Administration, which has not been done. It was also contended that complainant viz., Assistant Executive Engineer, Udupi Municipality, had no authority to file a complaint and viewed from any angle, material gathered by the prosecution do not establish the ingredients necessary to constitute an offence within the purview of Sections 465, 471, 409 read with Sec. 34 of IPC. It was also contended that complainant had also failed to obtain sanction from appropriate government as required under Sec. 197 of Crimial P.C. and as such, petitioners cannot be perforced to undergo the ordeal of trial.