Kerala High Court
K.S.Shibu vs State Of Kerala on 11 August, 2021
Equivalent citations: AIRONLINE 2021 KER 1142
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
CRL.MC NO. 4435 OF 2020
AGAINST CC NO.6/2019 OF ENQUIRY COMMISSIONER& SPECIAL
JUDGE,THRISSUR
PETITIONER/ACCUSED:
K.S.SHIBU
AGED 56 YEARS
S/O.KAMALESHWAN, DEVI KRIPA, KALAPADA, KALLAYAM
P.O., THIRUVANANTHAPURAM.
BY ADVS.
P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
SHRI.SHINOJ.K.N
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, HIGH COURT P.O., ERNAKULAM-682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU, THRISSUR
UNIT, THIRUVAMBADY P.O., THRISSUR-680022.
BY ADV GOVERNMENT PLEADER
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03.08.2021, THE COURT ON 11.08.2021 DELIVERED THE
FOLLOWING:
Crl.M.C.No.4435/2020
2
R.NARAYANA PISHARADI, J
**********************
Crl.M.C.No.4435 of 2020
-------------------------------------
Dated this the 11th day of August, 2021
-------------------------------------------
ORDER
The petitioner is the sole accused in the case C.C.No.6/2019 pending in the Court of the Enquiry Commissioner and Special Judge, Thrissur.
2. The petitioner was the Joint Regional Transport Officer, Irinjalakuda. On getting reliable information that he was in the habit of accepting illegal gratification from many persons, a surprise check was conducted on him at about 11:30 hours on 12.12.2014, at the Thrissur Railway Station, by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Thrissur. Then an amount of Rs.56,500/- was seized from the possession of the petitioner.
3. The report of the surprise check was forwarded to the Director, VACB by the Deputy Superintendent of Police through Crl.M.C.No.4435/2020 3 the Superintendent of Police, Central Range, VACB, Ernakulam on 15.12.2014, recommending registration of a case against the petitioner. The Superintendent of Police, Central Range, VACB, Ernakulam returned the report with a direction to take necessary action. Thereafter, on 03.02.2015, Annexure-B FIR was registered against the petitioner. After completing the investigation of the case, charge sheet against the petitioner was filed for the offence punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act').
4. The allegation against the petitioner, in Annexure-C charge sheet filed against him, reads as follows:
"Accused, while working as the Joint Regional Transport Officer, Sub RT Office, Irinjalakuda during the period from 21.07.2014 to 12.12.2014 and as such being a public servant by abusing his official position has acquired assets worth Rs.1,46,271/- and incurred expenditures of Rs.3,56,086/- while his income during that period was Rs.3,91,857/-.
Thus on 12.12.2014, he has been found in
possession of disproportionate assets worth
Crl.M.C.No.4435/2020
4
Rs.1,10,500/- which is 28.20% above his income
from all known sources for which he could not satisfactorily account for and which is nothing but the pecuniary resources or properties acquired by him in his name and in the name of his relatives on his behalf, disproportionate to this known sources of income and thereby the said Sri.K.S.Shibu has committed the offence of criminal misconduct."
5. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-C charge sheet filed against the petitioner and the proceedings initiated against him on the basis of it.
6. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
7. The case against the petitioner is that he had pecuniary resources in his possession, to the tune of Rs.1,10,500/-, during the period from 21.07.2014 to 12.12.2014, which was disproportionate to his known sources of income during that period.
8. The calculation regarding the disproportionate money possessed by the petitioner is shown in Annexure-C charge sheet Crl.M.C.No.4435/2020 5 as follows:
"Assets at the end of the check Rs.2,07,925.00 period (B) less Assets at the beginning of the Rs.61,654.00 check period (A)
-------------------
(E) Assets acquired during the check Rs.1,46,271.00 period (B-A) Add Expenditure during the check period (D) Rs.3,56,086.00
-------------------
Assets acquired + expenditure (E+D) Rs.5,02,357.00 Income during the check period (C) Rs.3,91,857.00
-------------------
Disproportionate assets (E+D)-C Rs.1,10,500.00"
9. Learned counsel for the petitioner has raised three contentions in challenging Annexure-C charge sheet. They are:
(1) Out of the amount of Rs.56,500/-, which was seized from the possession of the petitioner on 12.12.2014, Rs.50,000/- had been withdrawn by him from the treasury at Irinjalakuda on 04.12.2014. The investigating officer has improperly rejected the explanation of the petitioner regarding the possession of this amount. (2) The petitioner had borrowed Rs.1,00,000/- from one Crl.M.C.No.4435/2020 6 Santhosh (CW20) in November, 2014. If this amount is taken into account, it cannot be found that the petitioner was in possession of pecuniary resources disproportionate to his income. (3) The check period fixed by the investigating officer, that is, from 21.07.2014 to 12.12.2014 is very small to give a comprehensive picture of the pecuniary resources of the petitioner. The period so fixed is arbitrary and unreasonable.
10. Before examination of the merits of the above contentions, it would be advantageous to extract Section 13(1)
(e) of the Act (before amendment by Act 16 of 2018), which reads as follows:
"13(1) A public servant is said to commit the offence of criminal misconduct - (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation:-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in Crl.M.C.No.4435/2020 7 accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
11. On analysis of the provision contained in Section 13(1)(e) of the Act, it is manifestly clear that it is not the mere acquisition of property that constitutes an offence under that provision but it is the failure of the accused to satisfactorily account for the assets that makes the position as offending the law.
12. To substantiate a charge under Section 13(1)(e) of the Act, the prosecution must prove the following essential ingredients, namely, (i) that the accused is a public servant; (ii) the nature and extent of the pecuniary resources or property which were found in his possession; (iii) his known sources of income, that is, known to the prosecution; (iv) that such resources or property found in possession of the accused are disproportionate to his known sources of income. Once the said ingredients are satisfactorily established, unless the accused is able to account for such resources or property, the offence is Crl.M.C.No.4435/2020 8 proved. The initial burden is on the prosecution to establish that the accused had acquired the pecuniary resources or property disproportionate to his known sources of income. It is only after the prosecution has proved the requisite ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts on the accused.
13. The contentions raised by the petitioner shall be now considered in seriatim.
Re : Contention No.1
14. The first contention of the petitioner is that, the amount of Rs.56,500/-, which was seized from his possession on 12.12.2014, includes Rs.50,000/- which was withdrawn by him from the treasury on 04.12.2014.
15. The investigating officer has collected materials which would show that the petitioner had withdrawn an amount of Rs.50,000/- from the treasury at Irinjalakkuda on 04.12.2014.
16. Regarding the amount withdrawn by the petitioner from the treasury, in the statement filed by the investigating Crl.M.C.No.4435/2020 9 officer, it is mentioned as follows:
"9. During the investigation, the investigating officer questioned him further. Then he disclosed that Rs.50,000/- was withdrawn from his savings bank account of the District Treasury, Irinjalakkuda. This version was thoroughly examined in the investigation. The investigating officer examined CW14 Smt.Fabitha, the cashier of the treasury. She gave statement that the accused had withdrawn Rs.50,000/- through cheque. This cheque was seized from the AG's Office, Thiruvananthapuram and was verified. There was a writing of digit 100 vertically at the middle of the cheque. Smt.Fabitha identified the cheque and writing of the digit 100 and admitted that it was written by her. She added that she had issued 100 numbers of currency notes of denomination of Rs.500/-. CW 13 Smt.Valsa, the attender of the accused's office was examined in the investigation by the investigating officer. The cheque was shown to her and she admitted that she had presented the cheque to the District Treasury, Irinjalakkuda as instructed by the accused and collected the amount from Smt.Fabitha and entrusted to the accused on the same day. She gave statement that all the currency notes were of 500 rupee denominations.Crl.M.C.No.4435/2020 10
Hence his contention was false.
10. During the course of interrogation of the accused told that he had exchanged the 500 rupee denominations to 1,000 rupee denomination for an amount of Rs.25,000/- from the counter of accountant Govinda Sharma of his office. Govinda Sharma was examined as CW 22 and he disclosed that he had not given any change of currencies to the accused. Hence his contention was false."
17. The above statement would show that the explanation offered by the petitioner with regard to the change of denomination of the currency notes cannot be accepted at the present stage. The materials produced by the prosecution would show that, the amount which was seized from the possession of the petitioner on 12.12.2014, did not include the money withdrawn by him from the treasury on 04.12.2014.
18. Even if the contention of the petitioner that the amount of Rs.55,600/- found in his possession on 12.12.2014 included the amount of Rs.50,000/-, which he had withdrawn from the treasury on 04.12.2014, is accepted as true, it would not help him in any manner. Even then, it means that Crl.M.C.No.4435/2020 11 Rs.50,000/- was part of his assets as on 12.12.2014 or 04.12.2014. The investigating officer has included this amount as part of the assets of the petitioner as on 12.12.2014.
19. The amount in the treasury account of the petitioner at the beginning of the check period, that is, on 21.07.2014, was only Rs.7,593/-. If the contention of the petitioner is accepted, he would have deposited more amount in the treasury account by the date 04.12.2014 so that he could withdraw Rs.50,000/- on that date. The amount of Rs.50,000/-, whether it was lying in deposit or whether it was in the physical possession of the petitioner, actually formed part of his assets. Then, the petitioner has to satisfactorily account regarding that amount. He has to show that this amount originated from lawful sources. There is no material to show the source of this amount. The petitioner has not raised any plea with regard to the source of this amount.
20. In the above circumstances, the first contention raised by the petitioner is not relevant in the calculation of disproportionate pecuniary resources.
Crl.M.C.No.4435/202012 Re : Contention No.2
21. The second contention of the petitioner is that he had borrowed an amount of Rs.1,00,000/- from one Santhosh (CW20) in November, 2014 and if this amount is deducted from the amount of disproportionate income shown in the charge-sheet, there will not be sufficient basis for the prosecution against him.
22. Regarding the plea that the petitioner had borrowed Rs.1,00,000/- from Santhosh (CW20), in the statement filed by the investigating officer, it is mentioned as follows:
"During the course of investigation the statement of the CW20 Santhosh was recorded by the investigating officer on 18.11.2015. In his statement u/s 161 Cr.P.C, he stated that he had given one lakh rupees as loan to the accused in the month of November 2014. On 16.01.2016 his statement u/s 164 CrPC was recorded in which he stated that he had given one lakh rupees to the accused before one month of the arrest of the accused. The arrest of the accused was made on 13.11.2015. There is a discrepancy in both the statements u/ss 161 and 164 Cr.P.C given by the Crl.M.C.No.4435/2020 13 CW20 Santhosh. This witness was an owner of 6 private buses operating in Thrissur District. As owner of these much private buses, he would have become an illegal nexus with the accused and the help of the accused was necessary to operate these much private buses. Hence may be he made such statements. Hence his statement is not reliable. More over this witness was too late to appear before the investigating officer in recording his statement."
23. The statement of witnesses under Section 161 of the Code cannot be taken into consideration by the High Court in an application filed under Section 482 of the Code for quashing the criminal proceedings (See Rajeev Kourav v. Baisahab : AIR 2020 SC 909). Appreciation of evidence is a matter before the trial court and it does not come under the jurisdiction of the High Court under Section 482 of the Code (See Md.Allauddin v. State of Bihar : AIR 2019 SC 1910).
24. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or Crl.M.C.No.4435/2020 14 whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge.
25. The reliability of the statement given by Santhosh (CW20) before the investigating officer and also under Section 164 of the Code is a matter which cannot be decided by this Court in this application filed under Section 482 of the Code. It is a matter of evidence before the trial court.
26. Therefore, the second contention raised by the petitioner does not merit acceptance at this stage. Re : Contention No.3
27. The third contention of the petitioner is that the check period taken by the investigating officer is very small and arbitrary and it does not enable to give a comprehensive picture of the acquisitions of the petitioner.
28. Learned Public Prosecutor has submitted that it is the discretion and the choice of the prosecution or the investigating officer to fix the check period.
Crl.M.C.No.4435/202015
29. In State of Maharashtra v. Pollonji Darabshaw Daruwalla : AIR 1988 SC 88, it has been held as follows:
"In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the Act. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of by the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given Crl.M.C.No.4435/2020 16 credit to on the income side and would go to reduce the extent and the quantum of the disproportion. .....It is for the prosecution to choose what according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterise and isolate that period for special scrutiny."
(emphasis supplied)
30. No doubt, it is the prerogative of the prosecution to select the check period. But, such discretion cannot be exercised arbitrarily. It is not imperative that the period of reckoning should be spread out for the entire stretch of the anterior service of the public servant. But, the check period selected by the prosecution should be capable of giving a true and comprehensive picture of the known sources of income and the pecuniary resources and property in the possession of the public servant. The check period selected by the prosecution shall cover a reasonable period of time. The period shall not be very small and arbitrarily chosen by the investigating officer to project acquisition of wealth by a public servant.
Crl.M.C.No.4435/202017
31. The expression used in Section 13(1)(e) of the Act is "at any time during the period of his office". This expression does not mean that it is the period right from the inception of the service of a public servant. It means at any particular period of the service of a public servant. But, the period fixed or selected shall not be too small.
32. In the present case, the check period is from 21.07.2014 to 12.12.2014, that is, just over a period of four months. Of course, it was on 12.12.2014 that the amount of Rs.56,500/- was seized from the possession of the petitioner. It was on the date 21.07.2014 that the petitioner joined as Joint Regional Transport Officer at Irinjalakkuda.
33. This Court can take judicial notice of the fact that the public servants working in Government departments in this State get their salary and allowances on the first day of every month or atleast during the first week of every month. By taking the date 21.07.2014 as the starting point of the check period, the income received by the petitioner as salary and allowances just a few Crl.M.C.No.4435/2020 18 days previous to that date is excluded by the prosecution.
34. It is stated that the petitioner had entered into Government service in the year 1986. Even according to the prosecution, the amount of unexplained or disproportionate income found in the possession of the petitioner was only Rs.1,10,500/-. That amount cannot be considered to be very huge at that point of time. If the salary and allowances received by the petitioner just a few days previous to the date of commencement of the check period are also included in his income from known sources, the aforesaid amount would further come down to a great extent. When one takes into consideration the fact that the petitioner was a Government servant who had entered into service in the year 1986, such marginal amounts can be considered as his savings (See Ashok Tshering Bhutia v. State of Sikkim : (2011) 4 SCC 402).
35. It is to be noted that, the presumption under Section 20 of the Act (before amendment), does not cover an offence under Section 13(1)(e) of the Act.
Crl.M.C.No.4435/202019
36. The surprise check on the petitioner was conducted by the VACB on the basis of the information that he had been taking or receiving illegal gratification from many persons. The FIR was registered for the offences punishable under Sections 13(1)(d) and 13(1)(e) read with 13(2) of the Act. It appears that the VACB could not collect sufficient evidence to file a charge-sheet against the petitioner under Section 13(1)(d) of the Act. It appears that, therefore, they have filed final report against him alleging that he had disproportionate pecuniary resources, by fixing a very small check period.
37. Considering the facts and circumstances of the case, I am of the view that, the check period taken by the investigating officer to find out the disproportionate pecuniary resources of the petitioner is very small, which is incapable of giving a true and comprehensive picture of the known sources of his income and the pecuniary resources in his possession.
38. In State of Karnataka v. L.Muniswamy : AIR 1977 SC 1489, a three-Judge Bench of the Supreme Court, dealing Crl.M.C.No.4435/2020 20 with the power of the High Court under Section 482 of the Code, has held as follows:
"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has not to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its Crl.M.C.No.4435/2020 21 subjects it would be impossible to appreciate the width and contours of that salient jurisdiction".
39. The entire case against the petitioner rests on a shaky foundation. If the prosecution against the petitioner is allowed to continue, it would amount to persecution. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers under Section 482 of the Code, this Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice. Judicial process should not be an instrument of oppression or needless harassment.
40. In the instant case, the check period taken by the investigating officer is very small to give a clear and comprehensive picture regarding the acquisitions of the petitioner. The amount of disproportionate pecuniary resources shown as Rs.1,10,500/- in the charge-sheet would come down to a large extent, if the income from salary and allowances, which Crl.M.C.No.4435/2020 22 the petitioner had received just a few days prior to the starting point of the check period, is taken into account. In these circumstances, continuation of the prosecution against the petitioner would result in injustice only. Therefore, applying the tests laid down by the Apex Court in Muniswamy (supra), I find that this is a fit case where the power of this Court under Section 482 of the Code should be exercised to quash the proceedings against the petitioner.
41. Consequently, the petition is allowed. Annexure-C charge-sheet against the petitioner, and all proceedings taken against him pursuant to that final report, are hereby quashed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.4435/2020 23 APPENDIX OF CRL.MC 4435/2020 PETITIONER'S ANNEXURES ANNEXURE A COPY OF THE SURPRISE CHECK REPORT PREPARED BY THE DY.SP., VACB, THRISSUR, DATED 15.12.2014.
ANNEXURE B TRUE COPY OF FIR NO.08/2015/TSR. ANNEXURE C TRUE COPY OF THE FINAL REPORT IN FIR NO.VC 08/15/TSR OF THE VACB, THRISSUR.
ANNEXURE D TRUE COPY OF THE CALCULATION STATEMENT FOR THE CHECK PERIOD FROM 21.07.2014 TO 12.12.2014.
ANNEXURE E TRUE COPY OF SEC.161 CRPC STATEMENT OF CW20.
RESPONDENTS' ANNEXURES:
NIL TRUE COPY PS TO JUDGE