Kerala High Court
C. Thomas John vs State Of Kerala on 27 February, 2013
Author: K.Vinod Chandran
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA1935
WA.No. 813 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN W.P.(C) NO. 36366/2009 DATED 27-02-2013.
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APPELLANT/PETITIONER NO.2:
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C. THOMAS JOHN,
S/O.REV. C.V.JOHN, CHIRAPURATHU HOUSE,
KOLLAD, KOTTAYAM.
BY ADVS.SRI.ANIL XAVIER,
SRI.M.SHAHEED AHMAD,
SRI.M.RISHIKESH SHENOY.
RESPONDENTS/RESPONDENTS & PETITIONER NO.1.:
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY,
DEPT. OF HOME AFFAIRS, KERALA-695 001.
2. DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE & ANTI CORRUPTION BUREAU,
WAYANAD-673 121.
3. G.J. ANCHERIL @ MOHAN GEORGE JOHN,
S/O.GEORGE JOHN, ANCHERIL HOUSE,
UNION CLUB ROAD, KOTTAYAM-686 039.
R1 & R2 BY GOVT. PLEADER MR.P.I. DAVIS.
R3 BY ADV. SRI.BECHU KURIAN THOMAS.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 04-06-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
Manjula Chellur, C.J. &
K.Vinod Chandran, J.
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W.A.No.813 of 2013
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Dated this, the 4th day of June, 2013
JUDGMENT
K.Vinod Chandran,J.:
The appellant impugn the common judgment of the learned Single Judge, passed in four writ petitions, filed for quashing a First Information Report registered as Crime No.4/2009 by the Vigilance and Anti Corruption Bureau, Wayanad. The offences alleged were punishable under Section 13(1)(d)(iii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 120B and 420 of Indian Penal Code.
2. The appellant was the 2nd petitioner in W.P.(C). No.36366 of 2009 and was the former General Manager of a multi-national Company which had obtained leasehold rights of 119.21 acres of Cocoa plantation. The transaction that led to the registration of the above crime was that of the purchase of title of the said estate by accused Nos.2 to 4 and then the surrender made of the leasehold rights by the multi-national Company. W.A.No.813 of 2013 - 2 -
3. Briefly stated, the case of the Vigilance and Anti Corruption Bureau was that the 1st accused, a Head Clerk in the Sub Registrar's Office, Kalpetta, who was holding charge of Sub Registrar, Kalpetta, entered into a criminal conspiracy with the other accused (A2 to A5), who were respectively the title holders and the representative of the lessee-Company, and registered a document of surrender executed by the 5th accused (appellant herein) on behalf of the lessee-Company, surrendering the leasehold rights to the accused Nos.2 to 4; thus causing undue loss to the State exchequer and as a result, giving undue pecuniary advantage to themselves by styling the transaction between the lessee and the owner as a surrender; which, in effect, was a sale.
4. The core submission of the learned counsel for the appellant, the representative of the lessee-Company, is that the lessee had merely surrendered their leasehold rights to the owners and no consideration having passed, there could be no stamp duty on the document in excess of that provided under the Schedule to the Kerala Stamp Act, 1959; more specifically that applicable to documents of surrender.
W.A.No.813 of 2013 - 3 -
5. Though prima facie the argument is attractive, we notice from the judgment of the learned Single Judge that, in fact, there was a sale agreement between the lessee-Company and the owners for assignment of the leasehold rights to the persons who had obtained jenm rights and that the same was not followed up with a sale deed; but was subsequently registered as a surrender deed, without showing any consideration. On a perusal of the documents produced, we find that the properties were originally under the ownership of one Thoriambath Tarwad and Kadoor Panichadath Nair Tarwad and were leased out for 99 years to one Panorama Tea and Produce Company and then to one Chembra Peak Estate. The jenm rights of the property, going by the recitals in Exhibit P1, devolved solely on the Thoriambath Tarwad and the lease of Chembra Peak Estate continued. We are not referring to the other recitals, but only notice that the Chembra Peak Estate sold its leasehold rights to M/s.Cadbury India Limited as per deed No.2548/1991 of Sub Registrar's Office, Kalpetta.
6. The members of Thoriambath Tarwad then transferred title of the said property to the vendors in Exhibit P1, who in turn transferred it to accused Nos.2 to 4. We notice here that the present W.A.No.813 of 2013 - 4 - lessee-Company had acquired leasehold rights by a sale deed from the predecessor in interest. We also notice that 47.5610 hectares, coming to 117 acres 48 cents, of plantation has been sold for a sale consideration of Rs.55,000/-, going by the recitals in Exhibit P1. Exhibit P1 is dated 11.10.1999 and on 14.11.2002, Exhibit P2 deed of surrender is executed in favour of accused 2 to 4 by the 5th accused (appellant herein) as the Authorised Representative of the lessee-Company. In effect, the accused would have the world believe, that 100 odd acres of plantation was sold for a mere Rs.55,000/-. The learned counsel for the appellant would say that the Company/lessee had received consideration for the improvements made. We do not have the terms of the original lease to assume so.
7. We do not say anything on facts, especially since neither the terms and conditions of leasehold rights to the lessee-Company is not before us. We say this because of the specific contention taken by the learned counsel for the appellant that consideration of Rs.2.70 crores received by the lessee-Company, was, in lieu of improvements. Though the learned counsel volunteered to produce the entire documents, we are of the W.A.No.813 of 2013 - 5 - opinion that exercising the jurisdiction under Article 226 of the Constitution it would not be proper for this Court to go into the evidence and say this way or other; which would either lead to pre-empting the jurisdictional Court or scuttling the investigation altogether. Suffice it to say that we agree with the learned Single Judge that the First Information Report sufficiently discloses justifiable grounds to proceed with the investigation. We notice that the learned Single Judge has reserved the rights of the appellant to impeach the final report, which we reiterate, only in the event of our having made certain observations while considering the issue of justifiability of registration of a First Information Report, on the facts disclosed, which observations, we hasten to add, would not in any manner prejudice either of the parties or the investigation to be conducted. We dismiss the Writ Appeal, with no order as to costs.
Sd/-
Manjula Chellur, Chief Justice Sd/-
K.Vinod Chandran, Judge.
Vku/ ( true copy )