Kerala High Court
Muhammed Feroz.V.P vs State Of Kerala on 25 September, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942
Crl.MC.No.5232 OF 2019(D)
CC No.134/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II
(FOREST OFFENCES), MANJERI
FIR NO.304/CR/OCW-I OF 2010 OF CBCID, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
MUHAMMED FEROZ.V.P,
AGED 57 YEARS,
S/o MUHAMMED, VALIYA PEEDIAKKAL,
EDAVANNA, MALAPPURAM DISTRICT.
BY ADVS.SRI.T.A.SHAJI (SR.)
SRI.ATHUL SHAJI
SMT.NAMITHA JYOTHISH
SRI.S.ABHILASH VISHNU
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
(REPRESENTING THE DEPUTY SUPERINTENDENT OF POLICE,
ORGANIZED CRIME WING-III, SUB UNIT, MALAPPURAM).
BY PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.09.2020.
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No.5232 of 2019 2
ORDER
A crime was registered in FIR No.304/CR/OCW-I of 2010, CBCID, Thiruvananthapuram and final report was submitted. It is now pending consideration in C.C.No.134/2015 on the files of the Judicial First Class Magistrate (Forest Offences), Court, Manjeri. It was registered on the allegation of offence punishable under Sections 468, 471 and 420 IPC. The allegation is with respect to procurement of bitumen and supply of invoice (bill of procurement), which according to the defacto complainant, found not tallying with the supply of bitumen by BPCL. Accused No.2 was employed as an agent to procure bitumen from BPCL without any authority from the department, but permission was granted to the petitioner to procure the same from BPCL. By employing an agent, accused No.2, they themselves forged and fabricated false invoices ( bill of procurement) with the intention to cause unlawful loss to the department and to gain unlawful enrichment. Accused No.1 is the contractor in whose favour a repair work of a road was entrusted. Initially it was agreed by the department to supply bitumen sufficient for carrying out the work. Later on, they authorised the contractor, accused No.1, to Crl.M.C. No.5232 of 2019 3 procure the same from the supplier. It was at that time accused No.2 was employed as an agent to procure the bitumen from the supplier by accused No.1, that too, without any permission from the department and invoices were submitted, which were found to be not tallying with the supply of bitumen by the BPCL. It was contended that the only allegation raised is that the invoice supplied is not tallying with the supply of bitumen by BPCL. It is further submitted that accused No.2 passed away in the meanwhile. Hence sought to exhaust the power under Section 482 Cr.P.C.
2. The offence alleged against accused No.1 under Sections 468, 471 and 420 IPC would stand attracted, if there is any forgery of invoice with the intention to gain wrongful enrichment and to cause wrongful loss to the department. Accused No.1 was authorised to procure bitumen from the supplier on the specific understanding that the bill amount will be paid by the department. It is at this juncture, a third person, accused No.2, was employed by accused No.1 as an agent to procure the bitumen from the supplier, that too, without the permission of the department. According to the defacto complainant, it is an attempt on the part of accused No.1 to submit bill of procurement (invoice) by concealing the actual amount Crl.M.C. No.5232 of 2019 4 required for procuring bitumen from the BPCL and for that purpose, accused No.2 was employed under the guise of an agent and submitted forged invoices (bill of procurement). The existence of valid defence may not be a sufficient ground to exhaust the inherent power under Section 482 Cr.P.C. It is also not permissible to go into the merits and demerits of the case and to have an appreciation of the statement recorded along with the evidence collected during the course of investigation while exercising the jurisdiction under Section 482 Cr.P.C. The power of the trial court or the appellate court cannot be usurped under the camouflage of Section 482 Cr.P.C. Hence Crl.M.C. fails, dismissed, without prejudice to the right of defence available at any proper stage of the proceedings.
Crl.M.C. is dismissed.
Sd/-
P.SOMARAJAN
DMR/- JUDGE
Crl.M.C. No.5232 of 2019 5
APPENDIX OF Crl.MC 5232/2019
PETITIONER'S ANNEXURES:
STATEMENT OF WITNESSES ANNEXED THEREWITH. ANNEXURE C TRUE COPY OF ONE OF THE AGREEMENTS INCLUDING NOTICE INVITING TENDERS FOR THE WORKS CONTAINING THE RELEVANT CONDITIONS OF THE CONTRACT EXECUTED BETWEEN THE PETITIONER AND THE DEPARTMENT.
ANNEXURE D TRUE COPY OF THE LETTER DATED 20.10.2009 OF SRI. A.J.THOMASKUTTY.
ANNEXURE E TRUE COPY OF THE ORDER DATED 7.3.2018 IN CRL.M.P.NO.202/2018 IN C.C.NO.1632/2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, MALAPPURAM.
ANNEXURE F TRUE COPY OF THE ABOVE INTERIM ORDER DATED 28.5.2019 OF THIS HON'BLE COURT IN CRL.M.C.NO.3649/2019.
RESPONDENT'S ANNEXURE: NIL // TRUE COPY // P.A. TO JUDGE