Allowed

Sanjeev Balkur v. State of Kerala

Kerala HC16 Jan 2019Crl.Rev.Pet/1560/2018

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition and discharged the revision petitioner under Section 239 Cr.P.C. The Court held that without documentary evidence like a demand draft to substantiate the allegation of bribe payment through the petitioner's wife, a definite charge cannot be framed.

What did the court decide?

Revision petition allowed. Revision petitioner discharged under Section 239 Cr.P.C. Order disallowing discharge set aside.

Sanjeev Balkur Vs State of Kerala — Corruption | 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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WEDNESDAY, THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940

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Crl.Rev.Pet.No. 1560 of 2018

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AGAINST THE ORDER CC 9/2014 of SPL.COURT (SPE/CBI)-II, ERNAKULAM

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REVISION PETITIONER/PETITIONER/ACCUSED NO.6 :

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SANJEEV BALKUR, AGED 58 YEARS, S/O.THE LATE BACHA BALKUR, DY.MANAGER SALES(RETD) FACT UDYOGAMANDAL R/O HOUSE BINNA, NEAR VASANTHA MANDAP, AMBALPADI UDUPPI, KARNATAKA. BY ADVS. SRI.C.S.MANU SRI.T.B.SIVAPRASAD

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RESPONDENTS/RESPONDENT/COMPLAINANT : STATE OF KERALA, REPRESENTED BY CENTRAL BUREAU OF INVESTIGATION, SPE, KOCHI, PIN-682030, REPRESENTED BY ITS PROSECUTOR.

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

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OTHER PRESENT:

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 1560 of 2018

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ORDER

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The revision petitioner herein is the 6^th accused in C.C.No.9 of 2014 of the Special Court (SPE/CBI)-II, Ernakulam. The first accused is being prosecuted on the allegation of acceptance of illegal gratification from various persons, and the petitioner is said to be one of the persons who made payment of bribe to the first accused. The seventh accused also comes under the said category. The accused Nos.6 and 7 approached the trial court for discharge on the allegation that there is absolutely no material as against them for a successful prosecution, or even to frame a definite charge against them. Seeking discharge this petitioner filed Crl.MP No.79/2018, and the 7^th accused filed Crl.MP No.80/2018. By the common order dated 02.11.2018, the learned trial Judge disallowed the request of the petitioner, but allowed the request of the 7^th accused, and discharged him under Section 239 Cr.P.C. Against the order disallowing discharge, the 6^th accused has come up in revision.

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On 07.01.2019, this Court had directed the CBI to explain satisfactorily what exactly is the definite material against this petitioner for a prosecution. The allegation as against the petitioner is that he had made payment of an amount of Rs.10,000/- to the first

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Crl.Rev.Pet.No. 1560 of 2018

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accused by way of DD drawn through his wife. His wife is seen cited as witness No.20, but the list of documents produced along with the final report does not contain anything regarding such a DD. If the wife of the petitioner had drawn any DD, there would definitely be materials available in the concerned bank to prove the said fact. The prosecuting agency has not seized or collected any such material substantiating the allegation that the wife of the petitioner had drawn any demand draft in favour of the first accused. It appears that the CBI depends solely on the statements allegedly given by the petitioner's wife under Section 161 Cr.P.C.. In a case where documentary evidence is available, or speaking materials by way of documents are available to prove certain allegation, the prosecuting agency is expected, and rather bound to produce such documents in Court to substantiate the allegation. In the absence of any such material, a definite charge cannot be framed against the accused. It appears that the CBI expects the petitioner's wife to give evidence against him without any document to bind her. In the absence of definite material as against the 7^th accused, the trial court rightly found that there is nothing to frame a charge against him. But the petitioner's request was disallowed simply on the ground that the petitioner's wife is cited as a witness, and she has given a statement under Section 161 Cr.P.C. that she had drawn a demand draft. When

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Crl.Rev.Pet.No. 1560 of 2018

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documents are not there to substantiate the said fact, the Court will not be justified in framing a charge against the petitioner on the allegation that he had made payment of some amount to the first accused through his wife. I find that, in the absence of the possible documentary evidence, for the non-production of which, the CBI has no satisfactory explanation, the petitioner is also entitled for discharge. In the absence of definite material even to show a prima facie case, a charge cannot be framed against him.

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In the result, this revision petition is allowed. Accordingly, the revision petitioner is also discharged under Section 239 Cr.P.C. The order of the trial court disallowing discharge will stand set aside.

Sd/-

P.UBAID

JUDGE

rkj

Sanjeev Balkur v. State of Kerala

Case brief

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Sanjeev Balkur v. State of Kerala

Case brief

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