Kerala High Court
Vincent John vs State Of Kerala on 1 February, 2023
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
CRL.MC NO. 3284 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 343/2016 OF COURT OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA
PETITIONER/1ST ACCUSED:
VINCENT JOHN
AGED 67 YEARS
ANCHUTHARA HOUSE,
POOCHAKKAL, CHERTHALA,
NOW RESIDENT AT FLAT NO. 18 C,
OLIVE KALISTA, EDACHIRA ROAD,
KAKKANAD, PIN - 686002
BY ADVS.
BLAZE K.JOSE
URMILA ZACHARIA
AKHILA M.
GOPIKA P.
RESPONDENTS/ COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTICORRUPTION BUREAU E/R UNIT II,
KOTTAYAM, PIN - 686002
BY
ADVOCATE GENERAL OFFICE KERALA
SRI.A.RAJESH SPL.P.P. VACB,
SMT.S.REKHA SR.P.P
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
01.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No. 3284/2022
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ORDER
Dated this the 1st day of February, 2023 This Crl.M.C. has been filed to quash all further proceedings in C.C.No.343/2016 on the files of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha (for short, 'the court below').
2. The petitioner is the accused No.1. The offences alleged against the petitioner are punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 466, 468, 471 and 120B of the Indian Penal Code.
3. The petitioner was the Managing Director of Anchuthara Resort India Pvt. Ltd., a company incorporated under the Indian Companies Act on 20/09/1994. The prosecution case, in short, is as follows: The petitioner was the holder of Patta No.221/94-C in patta files L.A.231/93 having an extent of 76.50 Ares of land situated in Survey No.56/2 of block No.9 in T.P. Account No.109A of Chinnakanal Village. It is an inalienable land. Though the Crl.M.C.No. 3284/2022 ..3..
property is an inalienable land, the petitioner transferred the same in favour of a Company M/s. Anchuthara Resort India Pvt. Ltd., in which he was the Managing Director, by executing document No.68/02 of Sub Registrar's Office, Rajakumari on 14/01/2002. Thereafter, he conspired with accused No.2, Village Assistant of the Chinnakanal Village, who is a public servant, to alienate the above land by executing the transfer of registry in favour of M/s.Anchuthara Resort India Pvt. Ltd., and pursuant to the conspiracy, the accused No.2 abusing his official position as Village Assistant, Chinnakanal, forged entries in the T.P. Register and P.V. Register on 28/02/2005 whereby accused No.1 got the undue pecuniary advantage to the tune of Rs.95,000/- by illegal and corrupt means without any public interest.
4. The learned counsel for the petitioner, Sri.Blaze K. Jose submitted that even if the entire allegations in the final report is believed in its entirety, no offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 Crl.M.C.No. 3284/2022 ..4..
and Sections 466, 468, 471 and 120B of the Indian Penal Code have been made against the petitioner. On the other hand, the learned Special Public Prosecutor Sri.A.Rajesh stated that there are sufficient materials to connect the petitioner with the alleged offences, and when a prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C. cannot be invoked.
5. The allegations against the petitioner are twofold.
(i) the petitioner transferred an inalienable land covered by patta in favour of the Company of which he was the Managing Director. (ii) the petitioner, in collusion with the accused No.2, forged entries in the T.P. Register and P.V. Register to show that the land was transferred in favour of the Company.
6. Section 466 of IPC deals with forgery of record of Court or of public register, etc. Section 468 of IPC deals with forgery for purpose of cheating. Section 471 of IPC deals with using as genuine a forged document as original. Offence of forgery is defined in Sections 463 and 464 of IPC. Crl.M.C.No. 3284/2022
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Under Section 463, the making of a false document with any of the intents therein mentioned is forgery and Section 464 set forth when a person is said to make a false document. Section 470 defines a "Forged document" as false document made by forgery. The condition precedent for an offence under Sections 466, 468 and 471 is forgery. The condition precedent for forgery is making a false document or false electronic document or part thereof. An analysis of Section 464 of IPC shows that a person is said to make a false document if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered with the document or (iii) he obtained a document by practicing deception or from a person not in control of his senses. The prosecution allegation is that the petitioner transferred an inalienable land belonging to him under a patta in favour of a Company of which he was the Managing Director. Thus, it is not a case where he executed or made a document claiming to be someone else or authorized by someone else or he altered or tampered with Crl.M.C.No. 3284/2022 ..6..
a document or he obtained a document by practicing deception from a person. Thus, it cannot be said that the document by which the petitioner had transferred his land to the Company on 14/01/2002 is a false document as defined under Section 464 of IPC. As it is not a forged document, there cannot be any forgery. If there is no forgery, neither Sections 466, 468 nor 471 of IPC are attracted.
7. It is further alleged by the prosecution that thereafter on 28/02/2005, the petitioner in collusion with the accused No.2 forged entries in T.P. Register and P.V. Register to show that the land was transferred in favour of the Company. Even according to the prosecution version, alleged forgery was committed by the accused No.2. The definite case of the petitioner is that he sold entire shares of the Company and resigned from the directorship of the Company on 31/01/2002. Annexure-2, the copy of the Form No.32 of the Companies Act, 1956 would show that the petitioner resigned from the directorship of the Company on that day. Annexure-3 is the fresh certificate of incorporation Crl.M.C.No. 3284/2022 ..7..
consequent to the change of name in the Company. Annexure-4, the Annual Return filed at the Ministry of Corporate Affairs would show who all are holding shares in the Company as on 30/09/2004 - 30/09/2005. It would show that the petitioner was not holding any share in the Company. Thus, Annexures A2 to A4 would clearly show that on 28/02/2005 the petitioner did not have any connection with the Company. The learned special public prosecutor submitted that there are evidence on record to show that subsequently, in the year 2007, the petitioner again became the Director of the Company. The law does not bar a person to transfer share in the Company and acquiring share later on and becoming the Director of the Company. The question is, whether as on the date of the alleged incident, the petitioner had any role or interest in the affairs of the Company. For the reasons stated above, the case of the prosecution that the accused No.2, in collusion with the petitioner, forged entries in the T.P. Register and P.V. Register cannot be prima facie sustained.
Crl.M.C.No. 3284/2022
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8. What remains is conspiracy under Section 120B of IPC. I went through the final report. There are no sufficient material to attract the offence under Section 120B of IPC as well. That apart, since the petitioner did not have any interest over the Company on 28/02/2005, the conspiracy alleged by the prosecution cannot be believed.
9. In the light of the above findings, I am of the view that the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 466, 468, 471 and 120B of the Indian Penal Code are not prima facie attracted against the petitioner. Hence, no purpose will be served in proceeding further against the petitioner. Accordingly, all further proceedings against the petitioner in C.C.No.343/2016 on the files of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha hereby stands quashed.
10. Lastly, the learned special public prosecutor submitted that later on it was found that the patta itself is a bogus one, and in these circumstances, VACB intends to Crl.M.C.No. 3284/2022 ..9..
initiate further investigation. At any rate, in the present final report, the prosecution has no case that the patta itself is a bogus one. The remedy open to the VACB is to initiate a separate prosecution if it is permissible under law.
The Crl.M.C. is allowed.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE APA Crl.M.C.No. 3284/2022 ..10..
APPENDIX OF CRL.MC 3284/2022 PETITIONER'S ANNEXURES Annexure - 1 A COPY OF THE RELEVANT PAGES OF THE CHARGE SHEET SUBMITTED BY VIGILANCE AND ANTICORRUPTION BUREAU E/R UNIT II, KOTTAYAM DATED 30.07.2008 IN CRIME NO V.C. 2/08/ERK NOW PENDING ON THE FILES OF HON'BLE COURT OF ENQUIRY COMMISSION AND SPECIAL JUDGE MUVATTUPUZHA, AS C. C. NO. 343 OF 2016.
Annexure - 2 A COPY OF THE FORM NO. 32 OF THE COMPANIES ACT,1956 SHOWING THE RESIGNATION OF THE PETITIONER FROM DIRECTORSHIP OF THE COMPANY ISSUED BY THE REGISTRAR OF COMPANIES.
Annexure - 3 A COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT ON CHANGE OF NAME AS AYUR COUNTY RESORTS LTD ISSUED BY THE REGISTRAR OF COMPANIES Annexure - 4 A COPY OF THE ANNUAL RETURN FILED IN THE AYUR COUNTY RESORTS IN THE YEAR 2004 AND 2005 ISSUED BY THE REGISTRAR OF COMPANIES