Allowed

A.v.Thomas v. State of Kerala

Kerala HC12 Sept 2013Crl.MC/1604/2013

Case brief

AI extract

What is this about?

The High Court of Kerala quashed the FIR against a senior advocate who was named as an accused in a corruption case involving land purchase by the Kerala Cricket Association. Holding that the petitioner was merely a legal advisor with no role in decision-making or illegal opinion-giving, the Court ruled the FIR did not disclose a prima facie case.

What did the court decide?

The FIR and all further proceedings against the petitioner alone are quashed.

A.v.Thomas Vs State of Kerala — Quashing and FIR | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935

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Crl.MC.No. 1604 of 2013

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-----------------------(FIR NO.V.C.4/2013 OF VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT FILED BEFORE the COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR)

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PETITIONER(S)/ACCUSED NO.10:-

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A.V.THOMAS, AGED 59 YEARS SON OF LATE A.G.VARGHESE, 'ALUVILA' MOTHER THERESA ROAD, ERNAKULAM, KOCHI - 682 018. BY ADVS.SRI.G.SHRIKUMAR SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY

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RESPONDENTS/STATE AND DE-FACTO COMPLAINANT:-------------------------------------------1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT KATHRIKKADAVU, ERNAKULAM, PIN - 682 017.

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JOY KAITHARATH,, AGED 60 YEARS SON OF ANTONY, GENERAL SECRETARY STATE HUMAN RIGHTS PROTECTION CENTRE, THRISSUR REG.NO.389/2003, VELLIKKULANGARA, THRISSUR - 680 699.

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R1 & R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. R3 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)

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THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 02-09-2013,

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THE COURT ON 12/09/2013 PASSED THE FOLLOWING:

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Crl.MC.No. 1604 of 2013

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APPENDIX

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PETITIONER(S)'S EXHIBITS:

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ANNEXURE A1. CERTIFIED COPY OF FIRST INFORMATION REPORT NO.V.C.4/2013 LODGED BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT, IN THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.

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ANNEXURE A2. TRUE PHOTOCOPY OF THE RELEVANT PAGE OF THE BYE-LAWS OF KERALA CRICKET ASSOCIATION.

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ANNEXURE A3. TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE ANNUAL REPORT PUBLISHED BY KERALA CRICKET ASSOCIATION FOR THE YEAR 20082009.

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ANNEXURE A4. TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE ANNAUAL REPORT PUBLISHED BY KERALA CRICKET ASSOCIATION FOR THE YEAR 20092010.

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ANNEXURE A5. TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE ANNUAL REPORT PUBLISHED BY KERALA CRICKET ASSOCIATION FOR THE YEAR 20102011.

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ANNEXURE A6. TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE ANNUAL REPORT PUBLISHED BY KERALA CRICKET ASSOCIATION FOR THE YEAR 20112012.

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ANNEXURE A7. TRUE PHOTOCOPY OF THE LETTER DATED 21.03.2009 ISSUED BY THE HON. SECRETARY, KERALA CRICKET ASSOCIATION TO THE PETITIONER.

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ANNEXURE A8. TRUE PHOTOCOPY OF THE INSPECTION AND FEASIBILITY REPORT PREPARED BY THE STADIUM COMMITTEE OF KERALA CRICKET ASSOCIATION.

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ANNEXURE A9. TRUE PHOTOCOPY OF THE COMPLAINT DATED 13.06.2011 NUMBERED AS CMP NO.792/2011.

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ANNEXURE A10: TRUE COPY OF PAGE NO.41 OF THE ANNUAL REPORT OF KCA FOR THE YEAR 2009-10.

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ANNEXURE A11: TRUE COPY OF PAGE NO.64 OF THE ANNUAL REPORT OF KCA FOR THE YEAR 2010-11.

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ANNEXURE A12: TRUE COPY OF PAGE NO.67 OF THE ANNUAL REPORT OF KCA FOR THE YEAR 2011-12.

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ANNEXURE A13: TRUE COPY OF REPORT NO.S3-6711/2009 DTD.18.7.2009 OF THE THASILDAR, KOCHI SUBMITTED TO THE DISTRICT COLLECTOR, ERNAKULAM.

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ANNEXURE A14: TRUE COPY OF THE REPORT NO.L-6-28521/09 DATED 26.11.2009 OF THE DEPUTY COLLECTOR (LR), ERNAKULAM SUBMITTED TO THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA.

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ANNEXURE A15: TRUE COPY OF THE RESOLUTION DTD.30.7.2009 OF THE COUNCIL OF CORPORATION OF COCHIN.

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ANNEXURE A16: TRUE COPY OF G.O(P) NO.235/2009/TD DTD.22.12.2009 ISSUED BY GOVERNMENT OF KERALA.

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ANNEXURE A17: TRUE COPY OF THE LETTER D ATED 23.7.2010 SENT BY THE ASSISITANT DIRECTOR OF AGRICULTURE, PALLURUTHY TO THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM.

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ANNEXURE A18: TRUE COPY OF THE LETTER DTD.23.7.2010 SENT BY THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM TO THE DISTRICT COLLECTOR, ERNAKULAM.

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RESPONDENTS(S)' EXHIBITS:-

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ANNEX-R3(a): TRUE COPY OF THE MINUTES OF THE MEETINGS OF THE CENTRAL COUNCIL OF KCA HELD ON 19.6.2005 AT HOTEL HORIZON, THIRUVANANTHAPURAM.

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ANNEX-R3(b): TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING HELD ON 15.3.2009 AT HOTEL ABAD PLAZA, ERNAKULAM.

-TRUE COPY-

P.S.TO JUDGE.

V.K.MOHANAN, J .

Crl.M.C.No. 1604 of 2013 'C.R.'

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Dated this the 12^th day of September, 2013

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J U D G M E N T

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The tenth accused in AnnexureA1 FIR No. VC 4/2013 of

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VACB Unit, Ernakulam, who is a lawyer practising in this Court, is the petitioner herein. In this petition filed under Section 482 of the Criminal Procedure Code (for short 'the Cr.P.C.'), he challenges Annexure A1 FIR in VC 4/2013 of Vigilance and Anti Corruption

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Bureau, Ernakulam Unit filed` before the court of Enquiry Commissioner and Special Judge, Thrissur and all further proceedings thereto.

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The allegation in the FIR is that accused Nos.1 to 10, who

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are public servants and office bearers of the Kerala Cricket Association (hereinafter referred to for short as 'the KCA' only), which is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955, have

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conspired with accused Nos.11 to 16, with the motive of illegal monetary gains, in the matter of purchase of 23.95 Acres of land at Edakochi in Ernakulam District for construction of stadium and executed sale agreements by suppressing the actual price and showing higher price and caused loss to the Association and thereby, misused their public offices and accordingly, the accused committed the offences punishable under Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, (hereinafter referred to for short as 'the P.C.Act') and Section 120B of the Indian Penal Code (for short as 'the I.P.C.'). The second respondent, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam Unit registered the above FIR, allegedly after conducting a preliminary inquiry on the receipt of the complaint under Section 156(3) of the Cr.P.C. from the court below, which is preferred by one Joy Kaitharath, General Secretary, State Human Rights Protection Centre, Thrissur, and taken on file as CMP No.792 of 2011 by the Court of Enquiry

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Commissioner and Special Judge, Thrissur. Annexure A9 is the above referred complaint. In short, the subject matters of Annexure A9 complaint and Annexure A1 FIR are connected with the alleged conspiracy entered into by accused Nos.1 to 10, who are officials of the KCA and public servants, with accused Nos.11 to 16 with regard to the purchase of 23.95 Acres of land at Edakochi on 6.4.2009 for the construction of cricket stadium for the KCA. It is the above FIR under challenge in this proceedings, instituted under Section 482 of the Cr.P.C.

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Heard Sri.G.Shrikumar, the learned Senior Counsel for the petitioner, Smt.S.Hyma, the learned Public Prosecutor for respondents 1 and 2 and Sri.C.Unnikrishnan (Kollam), learned counsel appearing for the third respondent/the de facto complainant, who originally filed Annexure A9 complaint.

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The learned Senior Counsel Sri.G.Shrikumar, after taking me through Annexure A9 complaint and Annexure A1 FIR,

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strenuously submitted that the allegation against the petitioner, who is

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the tenth accused in the above FIR, proceeds on the presumption that he is an office bearer of KCA, which allegation is factually incorrect and therefore, the complaint itself is unfounded. In order to substantiate the above contention, the learned counsel took me through Annexure A2 bye-laws of KCA, the photocopies of the relevant pages of the annual reports published by the KCA, original of which are filed before the Registrar of Societies for the years 20082009,2009-2010,2010-2011 and 2011-2012 and produced as Annexures A3 to A6. On the basis of the above documents, the learned counsel specifically submitted that the petitioner is not an official of KCA and not even a member of Kerala Cricket Association. It is the further contention of the learned counsel that in fact, the General Body Meeting of the KCA had decided to purchase the required land in Ernakulam to construct a cricket stadium, otherwise, no test cricket matches in our State could be held in view of the

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stipulation of the Board of Control of Cricket in India and accordingly, a Stadium Committee, consisting of 7 persons was formed and accused Nos.1 to 7 shown in Annexure A1 FIR are the

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members of such Stadium Committee. According to the learned counsel, the petitioner is not a member of the said Stadium Committee. It is the said Stadium Committee, according to the learned counsel, that after having visited various sites, identified the site in Edakochi having an extent of 23.95 acres of land, as suitable and feasible for construction of the stadium and pursuant to that recommendation of the Stadium Committee, the General Body Meeting of the Kerala Cricket Association held on 15.3.2009 unanimously decided to purchase the above land for construction of the stadium. According to the learned counsel, the petitioner never participated in the said General Body Meeting. After the above General Body Meeting of KCA, according to the learned counsel, as per Annexure A7 letter dated 21.3.2009, addressed the petitioner to

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give legal opinion on the genuineness of the title deeds in respect of the said land and to clear the doubts, if any, on the title deeds. Learned counsel pointed out that along with Annexure A7, Annexure A8 photocopy of the Inspection and Feasibility Report prepared by the aforesaid Stadium Committee has also been furnished to the petitioner. It is the further contention of the learned counsel for the petitioner that the petitioner, being an Advocate, accepted Annexure A7 professional engagement and in pursuance of such acceptance and towards the discharge of such professional obligation, he maintained highest legal standards with utmost integrity and honesty. The petitioner has cleared the marketable title to the property through his legal opinion after satisfying himself about the same on scrutiny and survey of all the relevant documents. According to the learned counsel, there is no allegation either in the complaint or in the FIR to the effect that the legal opinion about the title deed in question given by the petitioner was incorrect, illegal, invalid or improper or such an

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opinion was given due to any extraneous consideration.

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After having invited my attention to Annexure R3(b),

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learned counsel submitted that the only case of the prosecution agency as well as the third respondent is that the petitioner is one of the ten named persons, who were authorised to deal with all future correspondence including negotiation for the project. According to the learned counsel, the above general authorisation cannot be taken as a ground to implicate the petitioner since the same does not satisfy as to which person shall deal with the particular task of entrustment and according to the learned counsel, the duty and responsibility of the petitioner, being a Legal Advisor, is crystal clear from Annexure A7 letter. According to the learned counsel, the petitioner was not present in the General Body Meeting of KCA held on 15.3.2009, in which the decision was taken to purchase the property in question and the petitioner attended the Stadium Committee Meeting held on 6.4.2009 as a special invitee, to clear the doubts, if any, of the

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members of the Stadium Committee with regard to the title deeds of the property. The petitioner happened to attend the above meeting, because of Annexure A7 letter of the KCA. According to the learned counsel, there was no sub committee as alleged other than the Stadium Committee and the petitioner is not a member of any such committee. The learned counsel vehemently submitted that except general statement, no specific overt act is alleged against the petitioner in the commission of the offences incorporated in the FIR and having regard to the attendant facts and circumstances, according to the learned counsel, no offence is disclosed against the petitioner and therefore, no investigation is warranted, otherwise, it will result in unnecessary harassment to the petitioner. Therefore, Annexure A1 FIR is liable to be quashed. In support of the above submissions, the learned counsel placed reliance upon the following decisions reported in State of Haryana v. Bhajan Lal [AIR 1992 SC 604], CBI v. K.Narayana Rao [(2012) 9 SCC 512], State of W.B. v. Swapan

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Kuma r [AIR 1982 SC 949], P.Sirajuddin v. State of Madras [AIR 1971 SC 520] and Rajiv Thapar v. Madan Lal Kapoor [(2013)3 SCC 330].

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Sticking on the factual inputs contained in the statement dated 4.7.2013 filed by the second respondent, Smt.Hyma, the learned Public Prosecutor vehemently submitted that though the petitioner was not a participant in the General Body Meeting of the KCA held on 15.3.2009, he had participated in the Stadium Committee Meeting held on 6.4.2009 and it is, after the above meeting of the Stadium Committee, 10 crores of rupees were given by the KCA for the purchase of land. So, according to the learned Public Prosecutor, the role of the petitioner in purchasing the property at an exorbitant price is crystal clear from his active role in the Stadium Committee Meeting held on 6.4.2009. After inviting my attention to paragraph 7 of the said statement, the learned Public Prosecutor submitted that the investigation in the above crime started only from 6.5.2013 by a

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special investigation team and the same is at preliminary stage and more documents are to be collected and more witnesses are to be questioned. The bank account details of KCA, its office bearers and the land owners are to be collected and verified. The income tax returns filed by the land owners are also to be collected and verified. According to the learned Public Prosecutor, the special investigation team is seriously investigating into the matters which are covered by the five points stated in paragraph 7 of the above statement. According to the learned Public Prosecutor, the petitioner's name was included among the accused based upon the preliminary enquiry held and he is one among the 16 members associated with the KCA Stadium project and the petitioner and other accused have every right to produce the relevant documents and materials to establish their innocence and the investigation is absolutely necessary to collect material evidence and if no material evidence is there against the petitioner, the investigating officer is at liberty to file a report before

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the court below to delete the petitioner from the array of accused. Thus, according to the learned Public Prosecutor, at this stage, especially in the light of the facts and circumstances involved in the case, which are referred to in the statement, the investigation into the role of the petitioner in the commission of the offences is absolutely necessary and no interference by this Court is warranted at this stage.

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The third respondent, who preferred Annexure A9 complaint and the de facto complainant in the above FIR has also filed a counter affidavit dated 10.7.2013 in this case. He has also produced Annexure R3(a) and (b) documents in support of his contention. Mr.C.Unnikrishnan, learned counsel appearing for the third respondent, vehemently submitted that the above Crl.M.C. is premature since the investigation is only at the initial stage. According to the learned counsel, the contention of the petitioner that

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no offence would lie against him, as he is not an office bearer or member of the KCA is baseless. According to the learned counsel,

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the petitioner was not merely a Legal Advisor to the KCA, but he is ' something more than a legal advisor ' in the matter of administrative affairs of the KCA and the dealings involving huge money transaction. Inviting my attention to Annexure R3(a), the learned counsel submitted that as per the minutes of the meeting of the Central

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Council of KCA held on 19.6.2005 at Hotel Horizon, Thiruvananthapuram, the petitioner had attended the same and his name is shown as serial No.20 and it would further show that he was a member of the Enquiry Committee which enquired into the disputes relating to the election to Kottayam District Cricket Association. On the basis of Annexure R3(b) document, which is the minutes of the General Body Meeting held on 15.3.2009 at Hotel Abad Plaza in Ernakulam, the petitioner along with other office bearers of KCA were authorised to deal with all future correspondence including negotiation. Further, the petitioner has also attended the Stadium Committee Meeting held on 6.4.2009 and it is in that meeting,

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decision was taken to hand over rupees ten crores to the property owners and the petitioner was one of the signatories to the above minutes. According to the learned counsel, the participation of the petitioner in the Stadium Committee Meeting held on 6.4.2009 had been deliberately suppressed and therefore, the petitioner deserves no leniency. According to the learned counsel, the facts stated above are sufficient to hold that the petitioner had actively participated in the decision making process of KCA including the shady stadium land deal and there is clear corruption and thus, the petitioner has active role in committing corruption connected with the above land dealing and the petitioner is liable to be proceeded against for criminal conspiracy under Section 120 B of I.P.C. According to the learned counsel, the contention of the petitioner in the above Crl.M.C., which is to the effect that the KCA has not received any financial assistance from the Central or State Government or any local or public authority, contradicts the statement of the petitioner since it was the petitioner,

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who prepared the sale deed of the stadium land, remitting portion of the stamp duty for the purchase of land on public interest. According to the learned counsel for the third respondent, Annexure A9 complaint shows the specific allegation against the petitioner and the same is confirmed through the preliminary enquiry undertaken by the Vigilance Department and a detailed investigation is absolutely warranted to find out the role of the petitioner and particularly to collect evidence connected with the aid given by the petitioner to the other conspirators and his abetment to other accused. Thus, according to the counsel for the third respondent, the petitioner was not a mere Legal Advisor to KCA and he was having active role in leading entire malpractice and financial irregularities in the affairs of KCA. Hence, according to the learned counsel, as the investigation is at the preliminary stage, this Court will not be justified in interfering at this stage in favour of the petitioner, when the facts and circumstances involved in the case demand a thorough investigation about the role of

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the petitioner in the commission of the above offences.

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I have carefully considered the arguments advanced by the

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learned Senior Counsel for the petitioner, the learned counsel for the third respondent as well as the learned Public Prosecutor for the State. I have also perused the materials produced by the petitioner as well as the third respondent in the above case. I have gone through the decisions cited by the learned counsel for the petitioner.

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Having regard to the facts and circumstances involved in the case, especially in the light of the rival arguments advanced by the learned counsel for the petitioner and the respondents, particularly in view of the materials on record, the question to be considered is whether Annexure A1 FIR would stand against the petitioner and whether any investigation based upon Annexure AI FIR is legally and factually warranted.

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In the present case, it can be seen that the petitioner is a practising lawyer of this Court and he is a designated senior. Of

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course, to find out the complicity of the accused, whatever may be his status, the law and procedure has to be triggered and set in motion to unearth the true facts and to book the real culprit and deal with him legally and properly and to do justice. When a person is figured as an accused and the machinery for the investigation set in motion, the social consequences thereto are likely to affect his status, personality and reputation in the society and the same are invariably applicable to every citizen. Therefore, unless there are sufficient factual inputs so as to constitute the essential ingredients of the offences alleged, supported by requisite material, no person shall be implicated as an accused.

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Keeping the above in mind, in order to answer the above question, the brief factual inputs of this case are absolutely necessary. The allegation in the FIR is that accused Nos.1 to 10 including the petitioner, who is the tenth accused, who are public servants and office bearers of the Kerala Cricket Association, with the motive of

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illegal monetary gains, have conspired with accused Nos.11 to 16 in the purchase of land at Edakochi for construction of stadium and executed sale agreements by suppressing the actual price and showing higher price and caused loss to the association and thereby misused their public offices. Thus, the aforesaid offences have been committed. Now the question is how far, the above allegation is attracted against the petitioner. Normally, no court has any power to look into the documents or materials relied on by the defence, other than produced by the prosecution, to find out whether any allegation would lie against the accused. But, in the given facts and circumstances of the case on hand, particularly in view of the decision of the Apex Court in Rajiv Thapar's case [(2013) 3 SCC 313], as I am satisfied with the applicability of the dictum laid down therein and the relevancy of the documents relied on by the petitioner, I am inclined to act upon the materials and documents produced by the petitioner. Thus, a reading of Annexure AI FIR and Annexure A9 complaint, it is

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crystal clear that the whole allegations against the accused particularly, accused Nos.1 to 10 are under the premise that they are public servants and office bearers of the Kerala Cricket Association. According to the petitioner, the above allegation is factually incorrect and legally unsustainable. Though I have repeatedly gone through Annexure A9 complaint and Annexure AI FIR, I have never seen any specific averment to the effect that the petitioner is an office bearer of any of the official posts of KCA. Annexure A2 byelaws of KCA deals about the constitution of Kerala Cricket Association. The office bearers of KCA are the President, four Vice Presidents, one Honorary Secretary, one Honorary Joint Secretary, one Honorary Treasurer and two Honorary Assistant Secretaries. Neither the third respondent nor the second respondent has got a case that the petitioner is holding any of such designated posts. Suffice to say, there is no post as Chairman, Legal Cell, as per Annexure A2 bye-law of KCA. No contra material is produced or argument is advanced. Admittedly, both by the

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petitioner as well as the third respondent and the second respondent investigating officer, the petitioner is a Legal Advisor of the KCA. Therefore, the core of the complaint or allegation that the petitioner, being the office bearer of the KCA, committed the alleged offences, is baseless and thus, the main plank of the prosecution case has broken. 12. Now, the further question to be considered is whether the allegation contained in the complaint and in the FIR would attract against the petitioner, he being the Legal Advisor of KCA. In order to answer the above question, it is absolutely necessary to go through Anenxure A9 complaint and Annexure AI FIR. Though I have repeatedly gone through Anenxure A9 complaint and Annexure AI FIR, there is no overt act alleged against the petitioner and the way in which he is involved in the commission of the offences as alleged. In paragraph 2 of Annexure A9, the specific assertion against the petitioner is only to the effect that the petitioner, being the tenth accused, is the chairman of legal cell working under the control of

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Kerala Cricket Association and the Legal Advisor of the KCA. Annexure A2 bye-law shows that there is no such legal cell. It is further stated in paragraph 2 that the accused Nos. 1 to 10 are the members of the Stadium Committee formed by the KCA during the year 2007 to construct International Cricket Stadium at Edakochi for which a project was prepared. In paragraph 4, it is stated that accused Nos.1 to 10, being the officials of KCA, misused their authority in taking a decision by the KCA in entering into a BOT agreement in favour of the 11^th accused. Similarly in paragraph 5, it is further stated that accused Nos.1 to 10 misused the official position of the KCA with oblique motive to acquire illegal gain and thus entrusted the work with the 11^th accused. Some bald allegations are made in paras 10,11 and 12 of Annexure A9 complaint against accused Nos.1 to 10. In paragraph 15, it is stated that accused Nos.1 to 13 would come under the definition of public servants and the provisions of the Prevention of Corruption Act. As I indicated earlier,

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the petitioner claimed that he is the Legal Advisor of KCA. The third respondent as well as the second respondent investigating officer also admitted the said fact. But, neither in Annexure A9 complaint nor in Annexure A1 FIR, there is any specific allegation as to how the petitioner committed the alleged offence. Either in Annexure A1 FIR or in Annexure A9 complaint, neither the third respondent nor the second respondent has got a case that the petitioner has given any illegal or incorrect legal opinion with oblique motive or deliberately, to acquire illegal pecuniary advantage for himself or for any other accused. When the prosecution or the third respondent miserably failed to show that the petitioner is an office bearer of KCA or a public servant, it is incumbent upon them to plea and show that the petitioner misused his position as a Legal Advisor. In the present case, there is absolutely no such allegation. So, the second limb of the complaint and the FIR also goes.

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In this juncture, it is relevant to note that the learned

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Public Prosecutor as well as the learned counsel for the third

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respondent vehemently submitted that the petitioner has attended the Stadium Committee Meeting held on 6.4.2009 and so, the petitioner

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has got active role. As pointed out by the learned counsel for the petitioner, it is incumbent upon the petitioner, being the Legal Advisor, and particularly in terms of Annexure A7 letter of the KCA to attend the meeting of the Stadium Committee as special invitee so as to clear the doubt, if any, of the committee members. The relevant extract of Annexure A7 letter is quoted hereunder for convenience.

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“ Sir

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I am happy to inform you that the Stadium Committee appointed for identifying the suitable land for constructing international cricket stadium in Kochi, has recommended a piece of land at Edacochi. The General Body on 15.3.2009 unanimously approved the proposal of the Stadium committee, after visiting the site.

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I have pleasure in informing you the decision of the general body to authorize you to verify the genuineness of the title deeds and other documents pertaining to the land and give your valuable opinion for placing the same to the Stadium Committee.

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It will be of great help if you will please make it convenient to be present at the meetings of the Stadium Committee as a special invitee, to clear the doubts if any of the committee members on the title documents.”

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(emphasis supplied)

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Neither the learned Public Prosecutor nor the counsel appearing for

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the third respondent during their argument made any reference to Annexure A7 letter rather they totally ignored the same. In this juncture, it is relevant to note that it is spelt out from Annexure A7 that the General Body Meeting held on 15.3.2009 approved the proposal of the Stadium Committee, who identified the property, after vising the site. Neither the second respondent nor the third respondent has got a case that the petitioner is a member of the Stadium Committee. Annexure A7 also positively shows the role of the petitioner, as a special invitee of the meeting of the Stadium Committee only, to clear the doubts, if any, of the committee members on the title of documents. So, the petitioner just participated in the Stadium Committee Meeting held on 6.4.2009 as a Legal Advisor and

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special invitee. In the absence of any specific allegation, especially in view of Annexure A7, it is highly illegal and improper to hold that the petitioner has role in the commission of any of the offence alleged, particularly when the prosecution has no case that he had given any illegal opinion, overlooking any material or legal position with oblique motive. Simply for the reason that petitioner being a Legal Advisor of KCA and in the absence of any contra allegation, the consciousness of this Court does not permit the prosecution to proceed with the investigation against the petitioner, after putting him in the array of the accused.

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In this juncture, it is relevant to note that even in the counter affidavit filed by the third respondent, particularly in paragraph 3, the stand of the third respondent is clear from the following statement:-

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“ It is to be noted that the petitioner was not merely a legal advisor to the KCA, but he was something more than a legal advisor in most of the administrative affairs of the KCA and dealings involving huge money transaction ”.

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So, the complainant himself is not definite about the role of the petitioner in committing any of such offence. Such a bald statement can be made by anybody. In this juncture, it is relevant to note that as I indicated earlier, the main prosecution case has broken since the petitioner is neither an office bearer of KCA as alleged by the prosecution and the prosecution has no case or allegation that petitioner has issued any invalid, illegal or improper legal advice. If the prosecution wants to implicate the petitioner, he being the Legal Advisor, there must be specific allegation. Recently, the Honourable Apex Court, in the decision in CBI v. Narayana Rao [(2012) 9 SCC 512], in para 20 has held as follows:-

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“ 20. We have already extracted the relevant allegations and the role of the respondent herein (A-6). The only allegation against the respondent is that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the

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properties. As rightly pointed out by Mr Venkataramani, learned Senior Counsel for the respondent, the respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated Vijaya Bank, Narayanaguda, Hyderabad to the tune of Rs 1.27 crores. It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120-B, 419, 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. It is not in dispute that the respondent is a practising advocate and according to Mr Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered legal scrutiny reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW 5 (listed witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW 5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. The learned Senior Counsel for the respondent has also pointed out that out of 78 witnesses no one has made any relevant comment or statement about the alleged involvement of the respondent herein in the matter in question.”

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After considering the legal opinion given by the Advocate in the

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above case, who is an accused, in paragraph 26 and further in paras 27 and 28, it is held as follows:-

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“26. The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge-sheet and the materials placed for his scrutiny and arrived at a conclusion that the same do not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offences punishable under Section 420 read with Section 109 IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether there is any prima facie material available against the person who has been charged with an offence under Section 420 read with Section 109 IPC.

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27. In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which

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such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings viz. either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.

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28. In Jacob Mathew v. State of Punjab t his Court laid down the standard to be applied for judging. To determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.”

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(emphasis supplied)

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Further in paras 30 and 31, it is concluded as follows:-

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“30. Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.

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31. However, it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators.

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At the most he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them. ..............................................”

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(emphasis supplied)

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According to me, the above decision is squarely applicable in the present case. In this juncture, it is relevant to note that as I indicated earlier, neither the prosecution nor the third respondent has got a case that the petitioner has deliberately or with fraudulent intention issued any wrong legal opinion. According to the Supreme Court, in the above decision, even if the legal opinion is wrong, in order to fix the criminal liability, it has to be shown as to how the lawyer was an active participant in committing the fraud along with the other accused. An Advocate cannot be roped into a criminal proceedings simply for the reason that he is a Legal Advisor to any of the parties, who allegedly got involved in a crime, unless the averment or evidence shows active and fraudulent participation of such legal

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practitioner in giving wrong legal advice. In the present case, it is evident as per Annexure A7 letter of KCA about the role of the petitioner to give legal opinion about the title of the property and to give clarification or clear the doubt of the members of the Stadium Committee with respect to the title of the property in question. In the absence of any specific allegation against the petitioner, it is quite unjust and illegal to initiate criminal proceedings against the petitioner, who is a designated Senior Lawyer of this Court.

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To support Annexure A1 FIR against the petitioner, one of the documents relied upon by the third respondent is Annexure R3 (a), which is the copy of the minutes of the meeting of KCA of the Central Council held on 19^th June, 2005 in which the petitioner has attended as special invitee as disclosed therein. In that meeting, an enquiry committee was constituted to inquire into the disputes relating to the election to the Kottayam District Cricket Association. Even if the same is taken as granted, according to me, it will not help the third

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respondent to substantiate the allegation in the FIR and Annexure A9 complaint against the petitioner. But, one thing is clear that the petitioner is not an office bearer of KCA, but he attended as an invitee on his capacity as Legal Advisor. As a counter to the argument advanced by the learned counsel for the petitioner that the petitioner is not an official bearer of KCA and he is in no way connected with the alleged offence, the learned counsel for the third respondent vehemently submitted, placing much reliance upon Annexure R3(b), that the petitioner is the Chairman of legal cell of K.C.A. and he was one among the persons mentioned in Annexure R3(b) engaged for negotiation and hence, the role of the petitioner is very much clear. I am unable to sustain the above contention of the learned counsel for the third respondent. As rightly pointed out by the learned counsel for the petitioner, though the petitioner's name is shown as one among ten named persons in Annexure R3(b), to deal with all further correspondence including negotiation for the project, the same does

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not satisfy as to which person shall deal with the particular task of entrustment. The main case alleged against the petitioner is that he along with A1 to A9 conspired with A11 to A16. In order to substantiate the above allegation, the learned counsel for the third respondent wants to press into service Annexure R3(b). As I indicated earlier, it is the General Body Meeting, which was held on 15.3.2009, decided to purchase the property in question and in the said meeting the petitioner was not a member or a participant. However, the petitioner's name is seen included as one among ten persons as seen as per Annexure R3(b). In this juncture, it is relevant to note that as per Annexure II bye-law, there is no such post of Chairman, Legal Cell. As pointed out by the counsel for the petitioner, the specific role or duty of the petitioner, though his name is mentioned in Annexure R3 (b), is not stated. But, Annexure A7 letter dated 21.3.2009, which is a contemporary document and issued by the KCA, subsequent to the General Body Meeting held on 15.3.2009, clarifies the doubt, if any,

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about the decision of the General Body Meeting of KCA held on 15.3.2009 and the responsibility and task of the petitioner since Annexure A7 is specific about the engagement and purpose for such engagement. Suffice to say, the petitioner has not attended even the General Body Meeting held on 15.3.2009, in which the decision was taken to purchase the property. The Stadium Committee, of which the petitioner was not a party, inspected the site and recommended for the purchase of the same. Therefore, in short, it is crystal clear that all positive and important steps towards the purchase of the property in question, including the spot inspection, identifying the property, preparation of feasibility report, the decision making process in the General Body Meeting held on 15.3.2009 are materialised in the absence of the petitioner, otherwise, the petitioner is not a party to any such proceedings and the only part of the petitioner is to give legal opinion about the title deed of the properties in question and to attend the Stadium Committee Meeting so as to clear the doubt, if any, about

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the title deed that too on his capacity as Legal Advisor. Hence, according to me, no criminal liability can be fastened upon the petitioner in connection with the alleged land transaction. It is pertinent to note that the common contention raised by the counsel for the third respondent and the learned Public Prosecutor is based upon the presence of the petitioner in the Stadium Committee Meeting held on 6.4.2009. As I indicated earlier, he attended the said meeting in his capacity as a Legal Advisor and a special invitee, since it was his duty in terms of Annexure A7. There is no allegation against the petitioner that he had inspected the property in question or he had any prior acquaintance with the said property and after satisfying that the property is not having that much value, he had given legal opinion to fix the value of the property at an exorbitant rate. Therefore, in the said circumstances, for the mere fact that the petitioner attended the Stadium Committee Meeting held on 6.4.2009 that too as a Legal Advisor and a special invitee as borne out from Annexure A7

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document, he cannot be dragged into the criminal proceedings in the absence of any contra allegations and no criminal liability can be fixed upon the petitioner connected with the alleged land transaction.

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This Court cannot ignore the realities and the recent developments in the legal profession. As an after effect of adopting the new policy based upon globalization and liberalisation, we can see a new trend in the trade, commerce, industries even in the agricultural field and as part of the same, there are several new enactments and arrival of corporate personalities like company, partnership firm etc. With this, not only civil disputes, but also criminal disputes and litigations have also increased. Among the criminal cases, as per the recent trend, white collar offences are shooting up. Under the above new scenario, the legal profession also has got consequential growth from its traditional limited sphere, of course subject to exception. Thus, besides appearing for the parties in the court for the conduct of cases, the professional canvas got new ramification. Inevitably, the

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Advocates have got new contextual duties and responsibilities based upon their professional engagements. Therefore, merely for the reason that an Advocate has been legally engaged in a matter based upon his professional capacity, he shall not be dragged into criminal proceedings overlooking his professional privilege and protection. In this juncture, it is not out of context to refer to Section 197 of the Cr.P.C. by which protection is given to public servant against unnecessary criminal litigation and liability with respect to an offence alleged if the same occurred during the discharge of his official duty. Such a protection is not available for an Advocate, if the alleged offence occurred, while discharging his duty or responsibility on the basis of his professional engagement. An Advocate, who is keeping the dignity of the profession, is an inevitable and integral part of the judiciary. In such circumstances, in order to invoke criminal proceedings against an Advocate, connected with an allegation of committing any offence, which allegedly occurred, while discharging

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his professional duties, there must be specific allegations and averments supported by necessary factual inputs, that such person exceeded his professional engagement and committed any overt act deliberately towards the commission of the alleged offence, otherwise any Advocate, keeping the dignity of the legal profession, can be dragged into criminal proceedings, overlooking the professional privilege and protection of an Advocate. It goes without saying that this privilege and protection is not available to an Advocate, who is involved in a crime, independent of his professional status, who had gone beyond his professional engagement and committed the offences.

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I have already referred to the averments contained in Annexue A9 complaint on the basis of which Annexure A1 FIR was registered. The two main limbs of the prosecution allegation that the petitioner is an office bearer of KCA and his role as Legal Advisor in the commission of the offence are unfounded. I have already referred

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to para-wise allegations contained in Annexure A9 complaint.

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Absolutely, there is no specific averment or allegation about the overt act of the petitioner in the commission of any of the offence. A Three Judges Bench of the Honourable Apex Court in the decision in State of West Bengal v. Swapan Kumar (AIR 1982 SC 949) have held as

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follows:-

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“16. In R. P. Kapur v. State of Punjab, (1960) 3 SCR 388 at pp. 392-393 : (AIR 1960 SC 866 at pp. 868, 69), the question which arose for consideration was whether a first information report can be quashed under S. 561-A of the Criminal P. C. The Court held on the facts before it that no case for quashing the proceedings was made out but Gajendragadkar J., speaking for the Court observed that though ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code, there are some categories of cases where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases where the allegations in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises and it is a matter merely of looking at the F.I.R. or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused.

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21.The position which emerges from these decisions and the other decisions which are discussed by Brother A. N. Sen is that the condition precedent to the commencement of investigation under S. 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed, It is wrong to suppose that the police have an unfettered discretion to commence investigation under S. 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R. prima facie discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.

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22. There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom.The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.I may, in this behalf, usefully draw attention to the warning uttered by Mathew J. in his majority judgment in Prabhu Dayal Deorah v. The District Magistrate, Kamrup, (1974) 2 SCR 12 at pp. 22-23 : (AIR 1974 SC 183 at. p. 199), to the following effect :

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" We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws, The history of personal liberty is largely the history of insistence on

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observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law."

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(emphasis supplied)

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In the light of the arguments advanced by the counsel for

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the petitioner and the respondents and in the light of the materials produced by both sides which I considered on the strength of the decision in Rajiv Thapar's case [(2013)3 SCC 330] and in the light of the above discussion, it can be seen that neither the third respondent nor the second respondent has got any case to the effect that being the Legal Advisor of KCA, the petitioner has done anything beyond his duty and capacity as a Legal Advisor and done anything against the interest of KCA or whether he actively participated in any of the dealings of the KCA other than giving legal opinion about the title deed of the property in question and there is no allegation that he had given any wrong legal opinion or legal advice contrary to the

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settled legal position or overlooked any material deliberately in giving

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legal opinion so as to obtain any pecuniary advantage for himself or

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for any of the accused. In the decision in Rajiv Thapar's case (supra), it is held as follows:-

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“20. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra v. Delhi Admn. : (SCC p. 771, para 15)

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“15. But when the Judge is fairly certain that there is

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no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.”

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21. Madan Lal Kapoor (the respondent complainant), before the High Court, had relied upon the judgment in State of Orissa v. Debendra Nath Padhi to contend that the judgment relied upon by the Additional Sessions Judge, Delhi having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal v. State of Jharkhand. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra v. Som Nath Thapa to contend that only the material placed on record by the prosecution could be gone into at the time

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of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. v. Mohanlal Soni wherein this Court had concluded that the requirement was a satisfaction that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. v. Golconda Linga Swamy to contend that at this stage meticulous examination of the evidence was not called for.”

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Having regard to the facts and circumstances involved in

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the case and especially in the light of the materials referred to above and in the light of the above discussion, particularly in view of the decisions cited supra, I am arriving at the following conclusions:-

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(i) The entire allegations in Annexure A9 complaint and Annexure A1 FIR proceed under the premise that the petitioner is an office bearer of the Kerala Cricket Association and hence, he is a public servant. But, the said fact is absolutely incorrect and contrary to the real facts and therefore, the said factor goes against the root cause of the prosecution case.

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(ii) No specific overt act is pleaded and no facts are mentioned against the petitioner to attract any of the

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ingredients of the offences alleged against the petitioner.

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(iii) Neither the third respondent nor the second respondent has got any case or allegation against the petitioner that misusing his capacity as Legal Advisor, the petitioner issued any wrong or illegal advice with oblique motive so as to constitute essential ingredients of any of the offences alleged against the petitioner.

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(iv) In the absence of any specific pleading in the complaint or factual imputation in the F.I.R. against the petitioner and particularly, in view of the materials produced by the petitioner, it is crystal clear that except giving legal opinion about the title deed of the property in question, the petitioner is in no way connected with the dealings of the property in question and absolutely, there is no contra allegation.

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(v) Annexure AI FIR does not prima facie disclose any offence against the petitioner, which is a condition precedent for the investigation, and therefore, the continuation of the investigation based upon Annexure-AI FIR is unjust and unreasonable.

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(vi) Therefore, the investigation now undertaken by

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the second respondent against the petitioner based upon Annexure AI FIR, which is manifestly unfounded will amount to abuse of process of law and proceedings.

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(vii) Hence, it is a fit case, in which interference of this Court, in exercise of the inherent powers of this Court under Section 482 of the Cr.P.C. is warranted to prevent miscarriage of justice.

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In the result, this Crl.M.C. is allowed and Annexure A1 FIR in VC No.4/2013 of Vigilance and Anti Corruption Bureau of Ernakulam Unit, to the extent it is against the petitioner, pending before the Court of Enquiry Commissioner and Special Judge, Thrissur and all further proceedings thereto against the petitioner alone, are quashed.

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V.K.MOHANAN, Judge

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MBS/

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A.v.Thomas v. State of Kerala

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A.v.Thomas v. State of Kerala

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