Kerala High Court
N. Mammootty vs Unknown on 7 December, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 7TH DAY OF DECEMBER 2012/16TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 1924 of 2006 (A)
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CC.4/2004 of ENQUIRY COMR.& SPL.JUDGE,KZD.
REVISION PETITIONER(S)/ACCUSED 1 & 3:
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1. N. MAMMOOTTY, S/O. KUNHABDULLA HAJI,
NACHATT HOUSE, PERUNNANUR AMSOM, KOMMAYAD DESOM
P.O. KOLLOOR., (CHAIRMAN, TEX FED
A GOVERNMENT OF KERALA, INSTITUTION
THIRUVANANTHAPURAM.) (DIED)
2. P.P.V. MOOSA, VEMOM AMSOM DESOM,
P.O. MANANTHAVADY., (EX-MLA, MUSLIM LEAGUE).
BY ADVS.SRI.M.ASOKAN
SRI.DEVAPRASANTH.P.J.
COMPLAINANT(S)/COMPLAINANT/STATE:
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1. JOMON PUTHANPURAKKAL,
PUTHANPURAKKAL HOUSE, NEENDOOR P.O.
KOTTAYAM DISTRICT.
2. STATE, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
R1 BY ADV. P.K. ASHOKAN
R1 BY ADV. SRI.M.RAJASEKHARAN NAYAR
R2, BY PUBLIC PROSECUTOR SMT. JASMINE V.H.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SCL.
N.K. BALAKRISHNAN, J.
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Crl. R.P. No. 1924 of 2006
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Dated this the 7th day of December, 2012
O R D E R
A private complaint was filed against five accused persons before the Enquiry Commissioner and Special Judge, Kozhikode alleging offences under Sections 7, 8 and 9 of Prevention of Corruption Act, 1988 r/w Sec.120 B of IPC.
2. The gist of the case is that Metropolitan Yoohannan Mar Philixinose (PW6) had applied for B.Ed College in 2001. A1 to A3 in the complaint who were stated to be the District Leaders of Indian Union Muslim League met PW6 in the Bishop House. During the early days of 2002, they demanded Rs.1,50,000/-for the purpose of including the B.Ed college of PW6 in the list for getting approval. PW6 went abroad on 7.4.2003 and returned only on 7.7.2003. After about 2 or 3 days, A2 (shown in the complaint) again went to Bishop House Crl.R.P. 1924 of 2006 2 and from there, he contacted A1 over his mobile phone. Thereafter mobile phone was handed over to PW6. It was further alleged that when PW6 contacted A1 over the said mobile phone, A1 made a demand to PW6 for Rs.2,50,000/-. Thereafter, PW6 stopped talking with A1 over the phone and talked with A2 who was present in the room (Bishop house). It was further alleged that A2 then told PW6 that the said amount of Rs.2,50,000/- was for constructing a building for the District Committee Office of Muslim League. According to PW6, all the colleges were given 'No Objection Certificate' by the Government during December 2002 but that was stated to have been set aside by this court. At the relevant time, the Educational Minister belonged to Indian Union Muslim League. Hence, according to the prosecution, the aforesaid amount of Rs. 2,50,000/- was demanded by the accused to exert influence on the Educational Minister and to obtain approval/affiliation. It was alleged that though NOC was subsequently given to 75 colleges as shown in the list of colleges published in newspapers dated 1.1.2004, the B.Ed college of PW6 was not included.
Crl.R.P. 1924 of 2006 3
3. Learned counsel for the revision petitioner submits that the court below accepted the sole testimony of PW6 to hold that there are sufficient materials to frame charge against the accused persons. As stated earlier though 5 accused persons were arrayed in the complaint, no materials were made available to take cognizance of the offence against the first and second accused in the complaint viz, Sri. Nalakathu Soopi and K. Mohandas. Further proceedings against them were dropped by the trial court and the complaint was proceeded only against three persons viz, N. Mammootty, P.C.Ahammed and P.P.V. Moossa.
4. The trial court recorded the evidence of some of the witnesses under Section 244 of Cr.P.C. After hearing, the charge was framed against three accused persons for offence under Sec.9 of Prevention of Corruption Act, 1988 r/w 34 IPC. The accused persons challenged the order framing charge against the accused before this court in Crl.R.P No.1135/2005 and Crl.R.P 1215/2005. This court as per order dated 26.10.2005, set aside Crl.R.P. 1924 of 2006 4 that order and remanded the matter to the trial court with certain directions. PW6 was recalled and examined again. Both sides were heard again. It was found by the court below that as regards the demand for bribe, there was only the sole testimony of PW6. The trial judge found that the evidence given by PW6 is sufficient to hold that the allegations made against the three accused persons were prima facie sufficient to frame charge against the accused. In other words, the evidence of PW6, if unrebutted would warrant a conviction and hence the learned trial judge framed charge against the three accused persons.
5. Learned counsel for the revision petitioner has vehemently argued that the evidence given by PW6-Metropolitan Yoohannan Mar Philixinose, the spiritual head, would show that there are certain aspects which would be sufficient to hold that PW6 is not so credit worthy that so much credibility, cannot be given to the statement of PW6. But the assertion made by PW6 is that only if the amount demanded by the accused was given to them, he (PW6) will get the approval of B.Ed.College as Crl.R.P. 1924 of 2006 5 requested. It was also stated by PW6 a specific allegation was made to the effect that the direction given to the accused persons from their superiors (Central Committee) was to the effect that from all the applicants, money should be collected for the construction of the League house at Malappuram.
6. A1 and A2 are no more. The learned counsel for the third petitioner submits that the prosecution against the third petitioner would be a futile exercise since there is no specific allegation to prove the complicity of the third accused. But I cannot accede to that submission. The evidence given by PW6 and other circumstances relied upon by the prosecution would show that all accused persons shared their common intention to demand and collect the money from the applicants who had submitted application for recognition/approval and that PW6 was one of the applicants. The conversation between the accused persons and PW6 would clearly indicate that the accused persons, against whom charge was framed by the court below, had actively participated and shared their common intention. The Crl.R.P. 1924 of 2006 6 inconsistency if any in the statement given by PW6 before court cannot be now probed into in detail to say that there is no prima facie material to frame charge against the accused. In other words, the evidence given by PW6 is that when A1 demanded Rs.2,50,000/-, all the three accused including petitioner herein were present. Ext.P5 is the letter sent by PW6 to the then Chief Minister. According to the 1st petitioner, the averments in Ext.P5 are against the allegation made in the complaint. That alleged inconsistency cannot efface the evidence of PW6. The testimony of PW6 if unrebutted, can warrant a conviction. Hence the plea that there is no material to proceed against this petitioner (A3) cannot be sustained at all.
7. Sec. 9 of the Prevention of Corruption Act, 1988 reads as follows:
"Taking gratification, for exercise of personal influence with public servant.--- Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal Crl.R.P. 1924 of 2006 7 influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine".
8. The evidence would prima facie show that the petitioner and the deceased accused in pursuance of a criminal conspiracy, in order to obtain bribe from PW6, induced PW6 to believe that they can influence the Educational Minister or other public servants to get approval for the B.Ed College of PW6. Therefore, that will attract the evidence under Section 9 of the Prevention of Corruption Act, 1988. All other factors are to be considered at the time of trial.
I find no illegality, irregularity or impropriety in the order Crl.R.P. 1924 of 2006 8 passed by the trial court in framing charge against the petitioner alleging commission of offence under Section 9 of Prevention of Corruption Act, 1988 r/w Sec. 120 B of IPC. This petition is devoid of any merit and is hence dismissed.
Sd/-
N.K. BALAKRISHNAN, JUDGE.
Scl.
True Copy PA to Judge