Dismissed

Givarghese K M v. State of Kerala

Kerala HC14 Feb 2022Crl.MC/5678/2021

Case brief

AI extract

What is this about?

The High Court of Kerala at Ernakulam heard a criminal miscellaneous petition seeking to quash a final report in a corruption case involving a village officer accused of conspiracy and misuse of position. The court held that the petitioner's contentions could not be considered for quashing but noted the right to apply for discharge at the trial stage. The petition failed.

What did the court decide?

The criminal miscellaneous case was dismissed, failing to quash the final report.

Givarghese K M Vs State of Kerala — Corruption | Kerala HC (2022)

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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 SUNIL THOMAS

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MONDAY, THE 14^TH DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 CRL.MC NO. 5678 OF 2021

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AGAINST THE ORDER/JUDGMENT IN CC 2/2021 OF ENQUIRY COMR.& SPECIAL JUDGE,KZD.

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PETITIONER/1st ACCUSED:

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GIVARGHESE K M AGED 46 YEARS S/O.K.P.MATHEW, ARDRAM HOUSE, MAKKADA P.O., KOZHIKODE DISTRICT.

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BY ADVS. P.SAMSUDIN M.ANUROOP

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR (VIGILANCE), HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADV GOVERNMENT PLEADER

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OTHER PRESENT:

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SPL.GP SRI.A RAJESH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.5678/2021

O R D E R

The petitioner herein stands arrayed as the first accused in CC No.2/2021 of the Enquiry Commissioner and Special Judge, Kozhikode for offences punishable under sections 13(2) read with section 13 (1)(d) of the Prevention of Corruption Act 1988 and section 120B of Indian Penal Code.

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The crux of the prosecution allegation is that, the petitioner, while working as the village officer of the Peruvayal village, office during the period from 6/5/2013 to 14/9/2015, being a public servant, abusing his official position entered into a criminal conspiracy with the second accused and in furtherance of it, issued a possession certificate to the second accused in respect of a small parcel of land belonging to the 2^nd accused in Re-survey No.29/1A showing the type of land as ”Thottam”, while it was wet land as per 'A Register and BT Register. It is further alleged that ,the petitioner thereby suppressed material facts and misinterpreted the order of the RDO No.4050/2006 dated 18/7/2006, Kozhikode and thereby caused undue pecuniary advantage to the second accused. On the basis of the investigation, final report was laid and the petitioner is facing prosecution. That final report is assailed in this Crl.M.C.

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The learned counsel for the petitioner contended that,there is absolutely no material to show that the disputed entry in Annexure A3 possession certificate is in the handwriting of the petitioner. If at all it is

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Crl.M.C.No.5678/2021

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accepted as in the handwriting of the petitioner, he is supported by Annexure A6, which is a copy of the relevant pages of the revenue register of the Peruvayal village in the above survey number. To supplement the argument, the learned counsel for the petitioner invited my attention to Annexure 4 report issued by the Assistant Director(Documents), Regional Forensic Science Laboratory, Kannur. The report indicates that, no conclusion could be arrived at regarding the disputed entries in Annexure A3, in so far as the materials that were available in the questioned writings for comparison was very few. According to the learned counsel, there is no material to show that it was in the handwriting of the petitioner. Regarding the questioned writings read as “തര� തത�ട� ” , Forensic report did not reach any conclusion except that the all the writings in the document are written with the same ink. The learned counsel for the petitioner contended that in the absence of any material to show that the questioned part of the document was in the hand writing of the petitioner, no prosecution would lie.

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Answering this, learned Special Government Pleader invited my attention to the materials available on record in the form of statements of CWs 15,16 and 32 who were the three witnesses who had given statements touching upon the fact that the disputed entries were in the handwriting of the petitioner. CW16, the lawyer, has stated that the number seen on the top of Annexure A3 and entries an including “തര� തത�ട� ” in the corresponding register entered by him. Of course, this is a matter for further consideration by the trial court.

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Crl.M.C.No.5678/2021

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The learned counsel for the petitioner contended that, the possibility of the petitioner being carried away by the entries in Annexure A6 with entries in Annexure A5 cannot be ruled out. Annexure A5 is the proceedings No.C.4050/06 of the RDO, Kozhikode dated 18/7/2006 by which , the applicant therein was permitted to reclaim 5 cents of land in Re survey No. 29/1, which formed part of a larger extent of 16.20 cents. There is nothing on record to show that the property of the second accused, who is beneficiary, forms part of the 16.20 cents of land in Re survey No.29/1. Prima facie, there is nothing to show that Annexure 5 refers to the property of the second accused. Hence, at present that contention may not help the petitioner.

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Learned counsel for the petitioner further contended that there is nothing on record to show that the petitioner has received any financial advantage. However, there is an allegation in the final charge that, by virtue of the above document which enabled the second accused to obtain a building permit, the petitioner herein obtained financial advantage. This ,prima facie seems to satisfy the ingredients necessary for proceeding in charge under section 13 (1)(d) (ii) of the Prevention of Corruption Act.

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Having considered in the above perspective, I feel that contentions set up by the petitioner cannot be considered for the purpose of quashing the final report. However,this will not stand in the way of the petitioner applying for discharge at the appropriate stage, and if filed, the court below shall consider the discharge application, independently untrammeled by any of the

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Crl.M.C.No.5678/2021

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observations made in this order, which is exclusively meant for disposal of

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this Crl.M.C.

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Crl.M.C.fails and is dismissed.

Sd/-

SUNIL THOMAS

Judge

dpk

Crl.M.C.No.5678/2021

APPENDIX OF CRL.MC 5678/2021

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PETITIONER ANNEXURES

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Annexure A1	TRUE COPY OF THE CRIME NO.VC 04/20 KOZHIKODE.	FIR DATED 19.10.2016 IN 16/NRK OF VACB, NR.,
Annexure A2	TRUE COPY OF THE 12.01.2021 IN CRI VACB, NR, KOZHIKO	FINAL REPORT DATED ME NO.VC 04/2016/NRK OF DE.
Annexure A3	TRUE COPY OF THE DATED 30.07.2015.	POSSESSION CERTIFICATE
Annexure A4	TRUE COPY OF THE ASSISTANT DIRECTO FORENSIC SCIENCE 02.02.2018.	REPORT ISSUED BY THE R (DOCUMENTS) REGIONAL LABORATORY, KANNUR DATED
Annexure A5	TRUE COPY OF THE THE RDO, KOZHIKOD	ORDER NO.C.4050/06 OF E DATED 18.07.2006.
Annexure A6	TRUE COPY OF THE REVENUE REGISTER	RELEVANT PAGES OF OF PERUVAYAL VILLAGE.

Givarghese K M v. State of Kerala

Case brief

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Givarghese K M v. State of Kerala

Case brief

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