Anil Kumar P.C. and M/S Safeshield India Rubber Products (P) Ltd. v. State of Kerala and Inspector of Police, CBI, EOW

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** ## **Crl.Rev.Pet.No. 421 of 2016 ()** **------------------------------AGAINST THE ORDER DATED 22/01/2016 IN CMP. NO.3127/2015 IN C.C. NO.320/2008 CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **.......** ## **PETITIONERS/ACCUSED NO.3 & 6/COMPLAINANT:** **--------------------------------------------------------------------------** **1. ANILKUMAR. P.C., AGED 54, S/O.P.N. CHANDRASENAN, MANAGING DIRECTOR, M/S.SAFESHIELD INDIA RUBBER PRODUCTS (P) LTD., KAVYANJALI, SWEET HOME ROAD, OPP. GOVERNMENT YOUTH HOSTEL, THRIKKAKARA, COCHIN - 21.** **2. M/S. SAFESHIELD INDIA RUBBER PRODUCTS (P) LTD., KAVYANJALI, SWEET HOME ROAD, THRIKKAKARA, REPRESENTED BY ITS MANAGING DIRECTOR, ANIKUMAR P.C.** **BY ADV. SRI.BABU PAUL.** ## **RESPONDENTS/COMPLAINANT:** - **-------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE INSPECTOR OF POLICE, CBI, EOW, CR.RC5/E/2007/CBI/EOW/CHENNAI-600 001.** **R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. R2 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.Rev.Pet.No. 421 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 CERTIFIED COPY OF THE ORDER DATED 22/01/2016 IN CMP. NO.3127/2015 IN C.C. NO.320/2008 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.R.P. No.421 of 2016 ----------------------------------------Dated this the 8[th] day of August, 2016** ## **O R D E R** 1.The petitioners herein are the accused Nos.3 and 6 in C.C.No.320 of 2008 on the file of the Chief Judicial Magistrate Court, Ernakulam. This revision petition is filed challenging the order dated 22.1.2016 by which the petition seeking discharge filed by the petitioners was dismissed by the learned Magistrate. 2.The aforesaid case arises from a final report submitted by the Inspector of Police, EOW, Chennai. As many as 7 persons are arrayed in the final report in which the accused are alleged to have committed offense punishable under section 120(B) read with section 420 of the IPC. - 3.The nature of allegations in the final report against the Crl.R.P.421/2016 2 petitioners herein and the other accused can be encapsulated as under: (a) The accused No.1 is a company by name M/s.Asma Rubber Products Pvt. Ltd. of which the 2[nd] accused is the Managing Director. (b) The prosecution alleges that the accused No.1 had availed credit facilities from the SBI , Overseas Branch , to the tune of Rs.85 Lakhs and thereafter with intent to cheat the said bank, entered into a criminal conspiracy with the other accused, which included bank officials . It is further alleged that the accused had fraudulently indulged in cross drawings of cheques through different bank accounts without carrying out any genuine business transaction. By adopting this _modus operandi,_ they are alleged to have siphoned off the funds of the bank causing wrongful loss to the tune of Rs.3.78 Crores. (c) In so far as the petitioners herein are concerned, the Crl.R.P.421/2016 3 1[st] petitioner, who is arrayed as the 3[rd] accused in the aforesaid case, is the Managing Director of the 6[th] accused company. The 6[th] accused is maintaining current accounts in the SBI, CEPZ branch and another account in Indus Ind Bank, CEPZ branch. (d) The Accused No.2 is alleged to have put to use 8 bank accounts of 5 companies, which were maintained at three different banks, out of which two belonged to the 2[nd] accused himself and the other belonged to Sri.P.C.Anil Kumar, Smt.Cicily Mathew and Sri.Hari G.Nair. (e) The prosecution further alleges that in furtherance of the criminal conspiracy entered into between the accused, the accused No.2 illegally discounted cheques on regular basis which aggravated over time and in the year 2006, cheques valued up to Rs.88 Lakhs were being purchased on a daily basis by the officials of the SBI Overseas branch. The accused are alleged to have Crl.R.P.421/2016 4 issued these cheques without any business transaction whatsoever with the 1[st] accused company and without having any balance in their accounts. It is further alleged that in furtherance of the criminal conspiracy accused No.2 along with the other accused had fraudulently withdrawn money and rotated the money through the accounts of other companies through various routes. (f) Accused No.3, who is the 1[st] petitioner herein, is alleged to have issued blank cheques well in advance. The bank officials purchased these cheques out of the bank’s own funds and the amount was cleared in a camouflaged manner. This in short is the crux of the allegation in the final report. - 4.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor appearing for the respondents. - 5.The learned counsel appearing for the petitioners would Crl.R.P.421/2016 5 emphatically and assertively submit that the final report submitted by the respondent does not contain any material to link the petitioners with the alleged contumacious acts of the Accused No 1 and 2 and the Bank officials. It is submitted by the learned counsel that the final report would reveal that the cheques which were issued by the petitioners in the ordinary course of business to the 1[st] and 2[nd] accused, who are their suppliers, were misused by them with the active connivance of the Bank officials. The learned counsel would point out that the final report would clearly disclose that the Bank officials had abused their official position and had deviously purchased cheques from the Accused No 1 and 2, but, in spite of the clinching evidence against the Bankers, their name does not find a place in the final report. It is urged that even if the case is proceeded with against the other accused, the chain of events cannot be proved. In view of the above, the entire exercise would Crl.R.P.421/2016 6 be nothing but a futility and these aspects were not considered by the court below. It is further submitted that the court below have failed to note that the blank cheques handed over by the petitioners to accused Nos.1 and 2 were for the purpose of procuring regular supply of the products. Summing up his submissions, the learned counsel submits that the charge against the petitioners herein are groundless and they ought to have been discharged by the learned Magistrate. 6. The learned standing counsel appearing for the 2[nd] respondent, however would submit that the bank officials were left out for want of sanction and the contention of the petitioners that the charge against them are groundless cannot be sustained. It is the submission that large scale fraud was carried out by accused Nos.1 and 2 and without the assistance and concurrence of the petitioners herein the same could not have been perpetrated. The learned Counsel contended that the Crl.R.P.421/2016 7 contours of exercise of powers in a revision petition challenging the order refusing discharge is limited and it was submitted that the contentions raised are meritless. 7.It is by now settled that at the stage of framing of the charge, the learned Magistrate is not expected to appreciate the evidence in order to find any contradiction or weakness in the prosecution evidence. The only material on which the Magistrate may depend either for the purpose of discharging the accused or for framing a charge against him are the documents referred to in Section 207 of the Code. All that the Magistrate can do under section 239 is to see whether, on the materials before him, he considers the charge against the accused to be groundless. The word “groundless” has been held to mean that there is no ground for presuming that the accused has committed the offence sought to be charged against him. The accused cannot be given a benefit of doubt at the stage contemplated under section 239 of the Crl.R.P.421/2016 8 Code if there is doubt about the guilt of the accused. ## 8.In **Hem Chand v. State of Jharkhand** [AIR 2008 SC 1903], the Apex Court, after surveying earlier precedents had observed as follows in paragraph No.14 of the judgment: ## 14. In **State of M.P. v. Mohanlal Soni** [2000 (6) SCC 338], this Court has held; "7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed; "..... As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed." We agree with the said view. Crl.R.P.421/2016 9 9. It is true that certain officers of the bank against whom specific allegations were raised are not being proceeded with, as the requisite sanction for prosecution was not obtained. The investigating agency cannot be blamed for the act of the sanctioning authority in refusing sanction for the prosecution of the Bank officials. In other words that could not have been a sufficient enough reason to discharge the petitioners under section 239 of the Code of Criminal Procedure. - 10.In so far as the complicity of the petitioners are concerned, materials have been produced by the Investigating agency to establish the fact that the current accounts maintained by the 6[th] accused was also used allegedly for siphoning off the money. There is a specific allegation in the final report that this was in pursuance of a criminal conspiracy hatched by the accused. At this stage, the learned Magistrate was not expected to sift and weigh the prosecution evidence and come to the Crl.R.P.421/2016 10 conclusion as to whether they are sufficient for convicting the accused. 11.After considering the rival submissions and after going through the materials on record, I find no illegality or impropriety in the order passed by the learned Magistrate. The question whether the petitioners had handed over blank cheques in the course of business transaction or whether there was a larger fraud, are matters that are to be adjudicated by the learned Magistrate at the stage of trial. I am unable to conclude that the petitioners has made out a prima facie case warranting interference with the impugned order. There is no merit in the petition. It fails and the same is dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN.V. JUDGE** vps