Allowed

Vincent John v. State of Kerala

Kerala HC1 Feb 2023Crl.MC/3284/2022

Case brief

AI extract

What is this about?

This court quashed criminal proceedings against the Managing Director of a private resort company. The court held that forging a transfer document for land he owned to himself did not constitute forgery under IPC, and there was no prima facie evidence of his involvement in the second alleged conspiracy incident. Consequently, offenses under the PCA and IPC were not attracted. Petition allowed and

What did the court decide?

All further proceedings against the petitioner in C.C. No. 343/2016 were quashed.

Vincent John Vs State of Kerala — 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 WEDNESDAY, THE 1^ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944

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CRL.MC NO. 3284 OF 2022

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AGAINST THE ORDER/JUDGMENT IN CC 343/2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA

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PETITIONER/1ST ACCUSED:

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VINCENT JOHN AGED 67 YEARS ANCHUTHARA HOUSE, POOCHAKKAL, CHERTHALA, NOW RESIDENT AT FLAT NO. 18 C, OLIVE KALISTA, EDACHIRA ROAD, KAKKANAD, PIN – 686002

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BY ADVS. BLAZE K.JOSE URMILA ZACHARIA AKHILA M. GOPIKA P.

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RESPONDENTS/ COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 2 DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTICORRUPTION BUREAU E/R UNIT II, KOTTAYAM, PIN – 686002 BY ADVOCATE GENERAL OFFICE KERALA SRI.A.RAJESH SPL.P.P. VACB, SMT.S.REKHA SR.P.P

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No. 3284/2022

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O R D E R

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Dated this the 1^st day of February, 2023

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This Crl.M.C. has been filed to quash all further

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proceedings in C.C.No.343/2016 on the files of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha (for short, 'the court below').

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The petitioner is the accused No.1. The offences alleged against the petitioner are punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 466, 468, 471 and 120B of the Indian Penal Code.

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The petitioner was the Managing Director of Anchuthara Resort India Pvt. Ltd., a company incorporated under the Indian Companies Act on 20/09/1994. The prosecution case, in short, is as follows: The petitioner was the holder of Patta No.221/94-C in patta files L.A.231/93 having an extent of 76.50 Ares of land situated in Survey No.56/2 of block No.9 in T.P. Account No.109A of Chinnakanal Village. It is an inalienable land. Though the

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Crl.M.C.No. 3284/2022

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property is an inalienable land, the petitioner transferred the same in favour of a Company M/s. Anchuthara Resort India

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Pvt. Ltd., in which he was the Managing Director, by executing document No.68/02 of Sub Registrar's Office, Rajakumari on 14/01/2002. Thereafter, he conspired with accused No.2, Village Assistant of the Chinnakanal Village, who is a public servant, to alienate the above land by executing the transfer of registry in favour of M/s.Anchuthara Resort India Pvt. Ltd., and pursuant to the conspiracy, the accused No.2 abusing his official position as Village Assistant, Chinnakanal, forged entries in the T.P. Register and P.V. Register on 28/02/200 5 whereby ac cused No.1 got the undue pecuniary advantage to the tune of Rs.95,000/- by illegal and corrupt means without any public interest.

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The learned counsel for the petitioner, Sri.Blaze K.

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Jose submitted that even if the entire allegations in the final report is believed in its entirety, no offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988

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Crl.M.C.No. 3284/2022

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and Sections 466, 468, 471 and 120B of the Indian Penal Code have been made against the petitioner. On the other hand, the learned Special Public Prosecutor Sri.A.Rajesh stated that there are sufficient materials to connect the petitioner with the alleged offences, and when a prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C. cannot be invoked.

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The allegations against the petitioner are twofold. (i) the petitioner transferred an inalienable land covered by patta in favour of the Company of which he was the Managing Director. (ii) the petitioner, in collusion with the accused No.2, forged entries in the T.P. Register and P.V. Register to show that the land was transferred in favour of the Company.

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Section 466 of IPC deals with forgery of record of

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Court or of public register, etc. Section 468 of IPC deals with forgery for purpose of cheating. Section 471 of IPC deals with using as genuine a forged document as original. Offence of forgery is defined in Sections 463 and 464 of IPC.

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Crl.M.C.No. 3284/2022

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Under Section 463, the making of a false document with any of the intents therein mentioned is forgery and Section 464 set forth when a person is said to make a false document. Section 470 defines a “Forged document” as false document made by forgery. The condition precedent for an offence under Sections 466, 468 and 471 is forgery. The condition precedent for forgery is making a false document or false electronic document or part thereof. An analysis of Section 464 of IPC shows that a person is said to make a false document if (i) he made or executed a document claiming to be someone else or authorized by someone else or (ii) he altered or tampered with the document or (iii) he obtained a document by practicing deception or from a person not in control of his senses. The prosecution allegation is that the petitioner transferred an inalienable land belonging to him under a patta in favour of a Company of which he was the Managing Director. Thus, it is not a case where he executed or made a document claiming to be someone else or authorized by someone else or he altered or tampered with

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Crl.M.C.No. 3284/2022

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a document or he obtained a document by practicing deception from a person. Thus, it cannot be said that the document by which the petitioner had transferred his land to the Company on 14/01/2002 is a false document as defined under Section 464 of IPC. As it is not a forged document, there cannot be any forgery. If there is no forgery, neither Sections 466, 468 nor 471 of IPC are attracted.

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It is further alleged by the prosecution that thereafter on 28/02/2005, the petitioner in collusion with the accused No.2 forged entries in T.P. Register and P.V. Register to show that the land was transferred in favour of the Company. Even according to the prosecution version, alleged forgery was committed by the accused No.2. The definite case of the petitioner is that he sold entire shares of the Company and resigned from the directorship of the Company on 31/01/2002. Annexure-2, the copy of the Form No.32 of the Companies Act, 1956 would show that the petitioner resigned from the directorship of the Company on that day.

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Annexure-3 is the fresh certificate of incorporation

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Crl.M.C.No. 3284/2022

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consequent to the change of name in the Company. Annexure-4, the Annual Return filed at the Ministry of Corporate Affairs would show who all are holding shares in the Company as on 30/09/2004 – 30/09/2005. It would show that the petitioner was not holding any share in the Company. Thus, Annexures A2 to A4 would clearly show that on 28/02/2005 the petitioner did not have any connection with the Company. T he learned special public prosecutor submitted that there are evidence on record to show that subsequently, in the year 2007, the petitioner again became the Director of the Company. The law does not bar a person to transfer share in the Company and acquiring share later on and becoming the Director of the Company. The question is, whether as on the date of the alleged incident, the petitioner had any role or interest in the affairs of the Company. For the reasons stated above, the case of the prosecution that the accused No.2, in collusion with the petitioner, forged entries in the T.P. Register and P.V. Register cannot be prima facie sustained.

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Crl.M.C.No. 3284/2022

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What remains is conspiracy under Section 120B of IPC. I went through the final report. There are no sufficient material to attract the offence under Section 120B of IPC as well. That apart, since the petitioner did not have any interest over the Company on 28/02/2005, the conspiracy alleged by the prosecution cannot be believed.

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In the light of the above findings, I am of the view that the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 466, 468, 471 and 120B of the Indian Penal Code are not prima facie attracted against the petitioner. Hence, no purpose will be served in proceeding further against the petitioner. Accordingly, all further proceedings against the petitioner in C.C.No.343/2016 on the files of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha hereby stands quashed.

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Lastly, the learned special public prosecutor submitted that later on it was found that the patta itself is a bogus one, and in these circumstances, VACB intends to

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Crl.M.C.No. 3284/2022

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initiate further investigation. At any rate, in the present final

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report, the prosecution has no case that the patta itself is a bogus one. The remedy open to the VACB is to initiate a separate prosecution if it is permissible under law.

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The Crl.M.C. is allowed.

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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APA

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Crl.M.C.No. 3284/2022

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APPENDIX OF CRL.MC 3284/2022

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PETITIONER'S ANNEXURES

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Annexure - 1	A COPY OF THE RELEVANT PAGES OF THE CHARGE
	SHEET SUBMITTED BY VIGILANCE AND
	ANTICORRUPTION BUREAU E/R UNIT II,
	KOTTAYAM DATED 30.07.2008 IN CRIME NO V.C.
	2/08/ERK NOW PENDING ON THE FILES OF
	HON'BLE COURT OF ENQUIRY COMMISSION AND
	SPECIAL JUDGE MUVATTUPUZHA, AS C. C. NO. 343 OF 2016.
Annexure - 2	A COPY OF THE FORM NO. 32 OF THE COMPANIES
	ACT,1956 SHOWING THE RESIGNATION OF THE
	PETITIONER FROM DIRECTORSHIP OF THE
	COMPANY ISSUED BY THE REGISTRAR OF
	COMPANIES.
Annexure - 3	A COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT ON CHANGE OF NAME
	AS AYUR COUNTY RESORTS LTD ISSUED BY THE REGISTRAR OF COMPANIES
Annexure - 4	A COPY OF THE ANNUAL RETURN FILED IN THE AYUR COUNTY RESORTS IN THE YEAR 2004 AND
	2005 ISSUED BY THE REGISTRAR OF COMPANIES

Vincent John v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vincent John v. State of Kerala

Case brief

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What did the court decide?

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