Dismissed

State of Kerala, v. M.G.Vineesh

Kerala HC2 Mar 2023CRL.A/959/2022

Case brief

AI extract

What is this about?

The Special Public Prosecutor appealed against an acquittal order. The High Court held that standing alone, failing to verify the original title deed does not constitute the offence under the Prevention of Corruption Act as the acts amounted to negligence, not dishonest intention. The appeal was dismissed.

What did the court decide?

The appeal filed by the State of Kerala under Section 378 of the Cr.P.C. was dismissed, upholding the acquittal.

State of Kerala, Vs M.G.Vineesh — Corruption | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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THURSDAY, THE 2^ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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CRL.A NO. 959 OF 2022

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AGAINST THE JUDGMENT IN CC NO.56/2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY

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APPELLANT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV GOVERNMENT PLEADER

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RESPONDENTS/ ACCUSED NOS. 1 TO 3:

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1 M.G.VINEESH, S/O.M.GOPALAN, MATHALIYIL HOUSE, KENICHIRA P.O., POOTHADI ADSOM, PINCODE-693 596.

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2 M.GOPALAN, S/O.KEERAN, PARIYARATH HOUSE, PAYYANAD P.O., MANJERI, MALAPPURAM DISTRICT FORMER PANCHAYATH SECRETARY, PINCODE-676 122). 3 SRI.VISWANATHAN MASTER, S/O.NARAYANAN, NARAYANAPURAM, THAZHA MUNDA P.O., POOTHADI AMSOM, FORMER PRESIDENT, POOTHADI GRAMA PANCHAYATH), PINCODE-673 596. BY ADVS. SHARAN SHAHIER SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SHRI.ASIF N SMT.BINDU SREEDHAR SRI.A.RAJESH.-SPL.P.P ,VACB. SMT.S.REKHA.-SR.P.P

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.A.No. 959 of 2022

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..2..

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J U D G M E N T

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Dated this the 2^nd day of March, 2023

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This is an appeal filed under Section 378 of the Cr.P.C. against the order of acquittal passed by the court of Enquiry Commissioner and Special Judge, Thalassery (for short, 'the Court below') in C.C.No.56/2016 dated 21/03/2019.

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The respondents are the accused Nos. 1 to 3. The offences alleged are punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act (for short, 'the PC Act') and under Sections 420 and 120B of the IPC.

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The accused Nos. 2 and 3 were public servants. They were working as Secretary and President of Poothadi Grama Panchayath, respectively. The prosecution case, in short, is that the accused Nos. 2 and 3, in pursuance of their criminal conspiracy with the accused No. 1, abused their position as public servants and purchased 75 cents of property owned by the accused No.1 in the name of Poothadi Grama Panchayath for a consideration of Rs.11,16,000/- on

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09/ 11/2001, suppressing the fact that the property was in equitable mortgage by depositing the title deed with South

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..3..

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Crl.A.No. 959 of 2022

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Indian Bank, Pulpally branch and thereby caused to obtain undue pecuniary advantage for themselves and for the accused No.1 and thereby committed the offence.

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PW 1 to PW17 were examined, and Exts. P1 to P39 were marked on the side of the prosecution at the court below. Exts. D1 and D2 were marked on the side of the defence. After trial, the court below found that the prosecution failed to establish the charge against the accused beyond reasonable doubt, and accordingly, they were acquitted as per the impugned judgment. Challenging the said judgment of acquittal, the State preferred this Appeal.

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I have heard Sri. A.Rajesh, the learned Special Public Prosecutor, Sri. Sharan Shahier, the learned counsel for the 1^st and 2^nd respondents and Sri.Asif.N., the learned counsel for the 3^rd respondent.

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The learned Special Public Prosecutor submitted that the impugned judgment of acquittal passed by the court below is without properly appreciating the evidence on record and the law on the point. On the other hand, the

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..4..

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Crl.A.No. 959 of 2022

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learned counsel for the respondents submitted that the court below correctly appreciated the evidence and found that the prosecution failed to prove the case against the accused beyond reasonable doubt. The counsel further submitted that the order of acquittal cannot be interfered with in appeal as a matter of course unless there are strong and substantial reasons.

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The main allegation is that the accused Nos. 2 and 3 purchased the property of the accused No.1 and registered Ext.P9 document in the name of Poothadi Grama Panchayath to construct a bus stand cum shopping complex by suppressing the fact that the said property was mortgaged with South Indian Bank, Pulpally branch as a security for the loan availed by the accused No.1 on 12/11/1999. It is further alleged that the accused Nos. 2 and 3 registered the property overlooking Ext.P6 legal opinion which says that the property could only be registered after seeing the original title deed. To prove the prosecution case and fix the culpability on the accused, the prosecution mainly relied on the oral testimony of PW's 2, 4,

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Crl.A.No. 959 of 2022

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5, 12 and 17 and Exts. P6, P8, P8, P9, P18 to P21 and P30. PW2, the Manager, South Indian Bank, Pulpally branch, gave evidence that the accused No.1 availed a loan of Rs.10 lakh by depositing the title deed of the property having an extent of 3.75 acres creating an equitable mortgage, and subsequently, availed an additional loan of Rs.10 lakh by depositing the original title deed of the property involved in the case on 12/11 /1999. He further deposed that subsequently the accused No.1 defaulted the repayment, and the bank initiated recovery proceedings to realise the loan amount due. PW12, the then Chief Manager, South Indian Bank, Kozhikode, gave evidence that the accused No.1 availed a loan from his bank on 12/11/1999 by depositing the original title deed. PW17, the clerk, South Indian Bank, Pulpally branch, during the relevant time also corroborated the evidence of PW12. PW4, the Additional Government Pleader, Sulthan Bathery, who gave Ext.P6 legal opinion gave evidence that he furnished Ext.P6 legal opinion without seeing the original title deed, in view of the request made by the accused No.3 that there was some urgency in registering the property. These evidence would prove that

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Crl.A.No. 959 of 2022

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the original title deed of the property of the accused No.1 was in the custody of the South Indian Bank, main branch, as it was deposited there on 12/11/1999 for availing loan by creating an equitable mortgage on the property in question. Therefore, the contention raised by the defence that the original title deed of the property was in the custody of the Panchayath cannot be sustained. But the question is whether failure on the part of the accused Nos. 2 and 3 to obtain and verify the original title deed from the accused No.1 before registration of Ext.P9 document itself is sufficient to attract the offence of misconduct as defined under section 13(1)(d) of the Prevention of Corruption Act.

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It is settled that the essence of offence u/s 13(1) (d) is the dishonest intention on the part of the pubic servant. It is equally settled that there cannot be a presumption of dishonest or fraudulent intention. The prosecution must prove that the action of the accused/ public servant was actuated by dishonest intention to make pecuniary advantage either for himself or for others. True, dishonest intention could be gathered from attending

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Crl.A.No. 959 of 2022

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circumstances, including the conduct of the parties. A contention was raised by the prosecution that evidence on record would show that Ext.P9 document was registered in a hasty manner on the next day of the dismissal of a writ petition filed by PW7 against the decision of the Panchayath to purchase the property in question. It was contended that undue hastiness on the part of the accused Nos. 2 and 3 in registering the property itself suggests that there was mens rea or malafide intention on their part. But the evidence of PW4 would prove otherwise. According to PW4, the accused No.3 requested him to furnish a legal opinion immediately as they wanted to register the property without any delay as there was the likelihood of filing cases by somebody to stall the project. It has come out in evidence that there was a political tug of war between the ruling faction led by the accused No.3 and the opposition team, including PW3, in connection with the bus stand cum shopping complex project of the Panchayath and though the bus stand cum shopping complex building was inaugurated, it was not opened for the public by the subsequent Board. It shows the intensity of the political rivalry in that Panchayath.

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Crl.A.No. 959 of 2022

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..8..

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Therefore, it has to be concluded that the hastiness on the part of the accused Nos. 2 and 3 in registering Ext.P9 document was only with a bonafide intention to see that the bus stand cum shopping complex project is implemented without further delay. That apart, it has come out in evidence that earlier in the month of March 1999, a document was executed for the sale of the same property. The transaction was almost completed. The payment of consideration was made through cheque. But the registration could not be effected due to technical issues pertaining to income tax clearance. The second deal in the year 2001, which resulted in the registration of Ext.P9 sale deed, was in respect of the same property that too for the same consideration. Nothing except the date of registration had to be changed in the second document. True, the accused Nos. 2 and 3 ought to have perused the original title deed before registering Ext.P9. But that itself is not sufficient to infer that there was an element of corruption unless and until there are materials to indicate mens rea or mental element on their part. Thus, as rightly found by the court below, at best the action of the accused Nos.2 and 3 could be treated

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Crl.A.No. 959 of 2022

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as negligence on their part. It is settled that mere procedure irregularity or negligence or violation of rules alone is not an offence punishable under the PC Act.

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Admittedly, the property has already been transferred in the name of the Panchayath and the bus stand cum shopping complex was constructed, and it has already started functioning. It has also come out in evidence that immediately on receiving the notice from DRT, the accused No. 1 had cleared the liability, and the property is now free from encumbrance. There is absolutely no material on record to prove that the accused Nos. 2 and 3 had obtained any pecuniary advantage, or they did anything with the intention to make any pecuniary advantage to the accused No.1. Absolutely no pecuniary loss has been suffered by the Panchayath also. Therefore, I endorse the finding of the court below that the court below failed to establish ingredients of Section 13(1)(d) r/w 13(2) of the PC Act. There is no evidence also to show that there was an agreement between the accused to commit any crime as alleged by the prosecution. Hence, Section 120B of IPC also

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Crl.A.No. 959 of 2022

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is not attracted.

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In the case of the acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as a matter of course. An order of acquittal can only be interfered with if there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. It is also settled that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken.

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I have carefully gone through the entire records, evidence, proceedings and judgment of the court below. I find no perversity or illegality therein warranting interference. The appeal fails, and it is accordingly dismissed.

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Sd/-

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DR. KAUSER EDAPPAGATH JUDGE

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APA

State of Kerala, v. M.G.Vineesh

Case brief

What is this about?

What did the court decide?

State of Kerala, v. M.G.Vineesh

Case brief

What is this about?

What did the court decide?

What the court decided

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