Dismissed

Sushil Kumar Jeeva v. Government of India

Kerala HC4 Jul 2019Crl.Rev.Pet/1313/2015

Case brief

AI extract

What is this about?

This judgment dismisses criminal revision petitions filed by accused challenging the trial court's order dismissing their discharge applications in a cheating and corruption case involving illegal emigration recruitment, holding that prima facie materials warrant a trial.

What did the court decide?

The revision petitions are dismissed; the order dated 29.07.2015 dismissing discharge applications is upheld.

Sushil Kumar Jeeva Vs Government of India — Constitutional and Fundamental Rights | Kerala HC (2019)

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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 P.UBAID

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THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941

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Crl.Rev.Pet.No.1313 of 2015

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AGAINST THE ORDER IN CRMP 106/2012 of SPECIAL COURT (SPE/CBI)-II, ERNAKULAM DATED 29-07-2015

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REVISION PETITIONER/1ST ACCUSED :

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SUSHIL KUMAR JEEVA, S/O.UDESH KUMAR, 190B, MAYOOR VIHAR, NEW DELHI.

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BY ADVS.

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SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.T.K.KUNHABDULLA

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RESPONDENT/COMPLAINANT :

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GOVERNMENT OF INDIA, REPRESENTED BY THE ADDITIONAL SUPERINTENDENT OF POLICE, CBI-ACB, KOCHI, REPRESENTED BY THE STANDING COUNSEL, CBI, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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BY ADVS.

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SRI.P.CHANDRASEKHARA PILLAI, C.B.I. SRI.FELIX JOHNNY KURUVILLA SRI.KURIAN CHEMBOLA MATHAI

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OTHER PRESENT:

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SRI.SASTHAMANGALAM.S.AJITHKUMAR -S.C., C.B.I

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.05.2019, ALONG WITH Crl.Rev.Pet.819/2016, THE COURT ON 04.07.2019 PASSED THE FOLLOWING:

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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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 P.UBAID

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THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941

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Crl.Rev.Pet.No.819 of 2016

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AGAINST THE ORDER IN CC 4/2011 of SPECIAL COURT (SPE/CBI-II), ERNAKULAM DATED 29-07-2015

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PETITIONER/2ND & 3RD ACCUSED :

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1 FRANCIS CHEMBOLA, S/O.MATHAI, AGED 59 YEARS, CHEMBOLA HOUSE, PARIYARAMANGALAM, KIDANGOOR, KOTTAYAM DISTRICT-686 752.

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2 MINI FRANCIS CHEMBOLA, AGED 53 YEARS, W/O.FRANCIS CHEMBOLA, CHEMBOLA HOUSE, PARIYARAMANGALAM, KIDANGOOR, KOTTAYAM DISTRICT-686 752.

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BY ADVS. SRI.KURIAN CHEMBOLA MATHAI SRI.FELIX JOHNNY KURUVILLA

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RESPONDENT/COMPLAINANT :

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GOVERNMENT OF INDIA REPRESENTED BY THE ADDITIONAL SUPERINTENDENT OF POLICE, CBI-ACB, KOCHI, REPRESENTED THROUGH IT'S STANDING COUNSEL, CBI AT HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

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SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I. SRI.P.CHANDRASEKHARA PILLAI C.B.I.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.05.2019, ALONG WITH Crl.Rev.Pet.1313/2015, THE COURT ON 04.07.2019 PASSED THE FOLLOWING:

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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ORDER

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[Crl.Rev.Pet 1313/2015, Crl.Rev.Pet.819/2016]

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The revision petitioner in Crl.R.P.No.1313 of 2015 is the first accused in C.C.No.4 of 2011 of the Special Court (SPE/CBI)-II, Ernakulam, and the revision petitioners in Crl.R.P.No.819 of 16 are the accused Nos.2 and 3 therein. The accused Nos.2 and 3 are husband and wife, and the 4^th accused is the mother of the third accused. In 2002, the accused Nos.2 and 3 formed a concern, by name “M/s.Chembola American Study Centre” at Chembola Complex, Thellakom, Kottayam. When they started illegal recruitment of Nurses for employment abroad under the name M/s.Chembola American Study Centre one Henry Joseph filed a complaint before the police alleging such illegal recruitment in violation of the provisions of the Emigration Act, and on the said complaint, the Kottayam East Police registered Crime No.46/2006 in January, 2006 under Section 420 IPC, and under Section 24(1)(b) and (c) of the Emigration Act. The first accused in this case was the Protector Of Emigrants(POE), Cochin at that time. During the investigation of Crime No.46/2006, the first accused also received a complaint from one Benny Joseph alleging

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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illegal recruitment by the accused Nos.2 and 3 under the name M/s.Chembola American Study Centre. The said complaint was forwarded to the police by the first accused. As investigation on another complaint was in progress no separate crime was registered by the Police on the complaint of Benny Joseph. The first accused is a prominent witness in Crime No.46/2006 of the Kottayam East Police Station. He was interrogated by the police in the said crime, and on the basis of the evidence collected, including the materials furnished by the first accused, the Kottayam East Police submitted final report in Crime No.46/2006. In view of the complaint alleging illegal recruitment, the accused Nos.2 and 3 had to stop their illegal activities.

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As a shortcut for obtaining license for recruitment under the Emigration Act, the 4^th accused made an application before the Government for necessary license, and she made such application under the name “M/s. Competent C.Care”, and the premises for which she sought license was shown as the first floor of Chembola Complex, Thellakom, Kottayam. She also got a lease deed executed with respect to the said premises by the second accused, and the said lease deed was also produced along with the application for license. Regarding the premises and also the antecedents and competence, the 4^th accused also submitted an affidavit along with the application.

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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On the said application, the Protector General of Emigrants (PGE), New Delhi directed the first accused to inspect the premises, conduct necessary enquiry regarding the competence of the 4^th accused, and submit report. Accordingly, the first accused obtained police clearance certificate, and he also inspected the premises. After such inspection, he sent a report to the Protector General of Emigrants(PGE). In the said report, he did not reveal that the premises for which the 4^th accused has sought license is the very same premises wherein the accused Nos.2 and 3 had illegally conducted recruitment, and he also did not disclose the relationship between the 4^th accused and the accused Nos.2 and 3 against whom a previous complaint of illegal recruitment was received . Relying on the report of the first accused a recruitment license was granted to the 4^th accused, but she continued only as a binami, and the actual business was done by the accused Nos.2 and 3 at the very same premises where they had conducted illegal recruitment previously. The CBI got reliable information regarding this, and on such source information, the present case was registered by the CBI. During investigation, the dishonest role played by the first accused was also revealed. The CBI detected that the first accused had sent a wrong report to the PGE without disclosing the true facts, and by suppressing the connection between the accused Nos.2&3, and the 4^th accused, and also the fact

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Crl.Rev.Pet.Nos.1313/15 & 819/16 6

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that the premises for which the 4^th accused attempted to obtain license is the very same premises where the accused Nos.2 and 3 had conducted illegal recruitment. Thus, the CBI got materials to find that the accused Nos.2 to 4 were illegally helped by the first accused by abusing his official position, and that with the object of causing illegal benefit and undue advantage to them, he submitted a report to the PGO without disclosing true facts or by suppressing the connections between the accused, and the criminal case pending against the accused Nos.2 and 3. Accordingly, the CBI submitted final report in Court against the four accused alleging the offence under Section 420 IPC, and also the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the first accused, under Section 24(1)(b) and (c) of the Emigration Act against the 4^th accused, and under Section 120(b) IPC against all, on the allegation that it was as part of a conspiracy hatched by the accused Nos.2 to 4 with the first accused, the 4^th accused obtained recruitment license illegally. On the final report, the Special Court took cognizance, and issued process to the accused.

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During the trial process, the first accused filed Crl.M.P.No.106/2012, and the accused Nos.2 to 4 filed Crl.M.P.No.396/12 for discharge under Section 239 Cr.P.C. After hearing both sides in detail, the learned trial Judge dismissed both the

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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applications by order dated 29.07.2015. Aggrieved by the said order, the accused have come up in revision.

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The short question for consideration is whether there is a prima facie case against the accused or one or more of them to form a judicious opinion on an examination and evaluation of the prosecution materials that they must have committed the offences alleged. As against the first accused what is prominently alleged is the offence under Section 13(1)(d) of the PC Act, and the others are roped in under Section 120(b) IPC on the allegation of criminal conspiracy in prosecution of which the first accused abused his official position, defrauded the Government, and suppressed some material aspects and informations, which if disclosed, would disentitle the 4^th accused for registration. The offence under Section 24(1)(b) and (c) of

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the Emigration Act is also specifically alleged against the accused Nos.2 to 4 on the allegation that the 4^th accused obtained license illegally, or without disclosing the true facts, and the accused Nos.2 and 3 had recruited nurses and others for job abroad by using the license obtained in the name of the 4^th accused.

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The crucial allegation as against the first accused is that as the person who had earlier received a complaint, and as the person who had knowledge of the illegal recruitment activities of the accused Nos.2 and 3, he should have taken much care when he

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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conducted enquiry and site inspection on the application for license given by the 4^th accused, and as the person who had knowledge of everything he should have reported the true facts to the PGE regarding the connections between the accused Nos.2&3 and the 4^th accused, and also regarding the fact that the premises with respect to which the 4^th accused sought license is the very same premises wherein the accused Nos.2 and 3 had conducted illegal recruitment previously under the name M/s.Chembola American Study Centre. The statements given by a lady staff of M/s.Competent C.Care, and also the personal staff of the first accused would indicate that when the first accused inspected the premises, he had seen the board “M/s.Chembola American Study Centre” there, and he had also some secret conversation with the third accused. Ofcourse, just because the accused Nos.2 and 3 had formerly conducted some illegal recruitment at the premises, the 4^th accused cannot be denied license to conduct recruitment at the said premises, if clear materials are there to show that at present the accused Nos.2 and 3 have no connection with the premises, or that they have vacated the premises fully, and that no sort of activity is being done by them at the premises. The definite case of the CBI is that when the first accused inspected the premises, he had seen the board “M/s.Chembola American Study Centre” there, and he had every reason to believe that the recruitment activity was in

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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fact conducted there by the accused Nos.2 and 3 under the license obtained in the name of the 4^th accused by suppressing the material facts as regards the premises. There are prima facie materials to show that the first accused had seen the third accused at the premises, when he made the site inspection, and that he had also reason to believe, that the premises in the possession of the accused Nos.2 and 3 was in fact shown as the premises in the license application by the 4^th accused. For deciding the factual aspects as to whether there was actually any conspiracy between the accused to obtain license illegally in the name of the 4^th accused, or whether the first accused had sufficient reason to believe when he made site inspection that the building was under the domain and control of the accused Nos.2 and 3 for their illegal activities, the case must go to trial. Whether the first accused had in fact knowledge of these things, which, if disclosed, would disentitle the 4^th accused for license, is a matter to be proved in evidence. Whether the first accused had such knowledge, or whether the very material facts concerning the premises and the connections between the accused Nos.2&3 and the 4^th accused were suppressed by him by abusing his official position, with a view to cause wrongful gain and undue advantage to the other accused, is a factual aspect to be proved by evidence during trial. If there is evidence or material, to show convincingly that the first

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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accused had not seen or noticed anything to suspect the involvement of the accused Nos.2 and 3 in the proposed recruitment business, or to show that the premises for which the 4^th accused sought license was not in the actual possession of the others, or that the accused Nos.2 and 3 had by the time stopped everything and vacated the premises, the first accused would be safe. The materials produced by the CBI along with the final report would prima facie show that when the first accused inspected the premises, he could have noticed the board of “M/s.Chembola American Study Centre” formerly used by the accused Nos.2 and 3 for illegal recruitment, or that he had reason to believe that though license was in fact applied for by the 4^th accused, the business activity was in fact carried on or managed by the accused Nos.2 and 3. Prima facie it may appear that the true facts concerning

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the premises and also the status and competence of the the 4^th accused were suppressed by the first accused, or that he deliberately omitted to report these facts to the PGE with the object of causing some illegal or unlawful benefit to the others. At this stage, the Court cannot come to a judicious opinion that the first accused had no vicious role, or that there was no deliberate or culpable omission on his part. Whether the first accused had in fact abused his official position to help the others is a matter to be proved by evidence. It would be unsafe to come to a definite opinion or to make a judicious assessment

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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in favour of the accused at this stage. The matter requires evidence, and only on the basis of evidence, it can be conclusively decided whether the first accused had any culpability in the deal. The learned Senior Counsel for the first accused submitted that the first accused was not expected to report the inter se connection of the accused or their antecedents, and that he was called upon to report regarding the premises alone. I do not think so at this stage. As a responsible officer, he will have to make an enquiry regarding the status and competence of an applicant for recruitment license, and he must have a legal duty to make an enquiry regarding all the aspects necessary for taking decision on such request for license. No doubt, as the person who had received complaints, and who knows about the illegal activities and antecedents of the accused Nos.2 and 3, the first accused probably had knowledge of the inter se connection between the accused. He could have also noticed, at the time of site inspection, that the premises with respect to which the 4^th accused made application for license is actually the premises in the possession and occupation of the accused Nos.2 and 3, and that though application was made by the 4^th accused, the activities were actually conducted under the name “M/s. Competent C.Care” by the accused Nos.2 and 3. The real facts and the factual details as regards the knowledge of the first accused, and his culpable role, are all matters to

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Crl.Rev.Pet.Nos.1313/15 & 819/16

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be examined during trial. Regarding the culpability of the others also, things will depend upon the inter se connection between the accused

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and the illegal design, if any, made by them to obtain license. Let the factual aspects be thoroughly examined by the trial court during trial. I find that the discharge applications were rightly dismissed by the trial court.

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In the result, both the revision petitions are dismissed.

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Sd/-

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P.UBAID, JUDGE

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rkj

Sushil Kumar Jeeva v. Government of India

Case brief

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Sushil Kumar Jeeva v. Government of India

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