Binu Viswambharan and Lakshmy Binu v State of Kerala and Others

Crl.M.C.No.601/19 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944_ _CRL.MC NO. 601 OF 2019_ ## _PETITIONERS/ACCUSED:_ - _1 BINU VISWAMBHARAN, AGED 42 YEARS, C.R.A.268, AMBALATHARA PUTHENVEEDU, CHOOZHAMPALA, MUKKOLA P.O., THIRUVANANTHAPURAM-695 043._ - _2 SMT.LAKSHMY BINU, W/O.BINU VISWAMBHARAN, C.R.A.268, AMBALATHARA PUTHENVEEDU, CHOOZHAMPALA, MUKKOLA P.O., THIRUVANANTHAPURAM-695 043._ _BY ADVS._ _S.K.BALACHANDRAN SMT.N.D.DEEPA_ ## _RESPONDENTS/STATE & DE FACTO COMPLAINANT:_ - _1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031._ - _2 JAYASREE, D/O SAVITHRI, GANAM NEAR VILAPPIL SALA PHC, VILAPPIL VILLAGE, THIRUVANANTHAPURAM-695 573._ - _3 BADUSHA, S/O.ABOOBAKER, AGED 36 YEARS, PINARVILAKAM VEETTIL, NEAR KILIKURISHADI JUNCTION, KOLLODE P.O., THIRUVANANTHAPURAM-695 572._ - _4 CHERUPUSHPAM, D/O.AAGNAS, AGED 50, SATHEESH BHAVAN, NEAR MALAPPANAM CATHOLIC CHURCH, VILAPPILSALA P.O, THIRUVANANTHAPURAM-695 573._ - _ADDL.R3 & R4 IMPLEADED AS PER ORDER DTD.30.11.21 IN CRL.M.A.NO.1 OF 2021_ _SMT.MAJIDA.S_ _ADV. RANJIT GEORGE – SR. PP_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _07.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.601/19 2 ## **O R D E R** The petitioners herein are the husband and wife and are accused Nos.1 and 2 in Crime No.978 of 2014 of Malayankeezhu Police Station, which was later renumbered as Crime No.100/CR/2018-EOW1/Kollam CBCID. The aforesaid crime was registered based on a complaint submitted by the 2[nd] respondent herein for the offences punishable under Sections 406, 409, 420 read with Section 34 IPC. 2. The main allegation in the aforesaid complaint is that the petitioners, who were agents of Life Insurance Corporation of India (hereinafter referred to as LIC), have collected an amount of Rs.21,812/- from the 2[nd] respondent and her husband during the period from 2010 to 2014, making them believe that the said amount will be paid towards her husband’s insurance premium, but the same was not paid and thereby cheated them. 3. Initially, the Sub Inspector of Police, Malayinkeezhu police station conducted an investigation on the said complaint Crl.M.C.No.601/19 3 after registering Crime No.978 of 2014. Later, the investigation of the said case was taken over by the Deputy Superintendent of Police, District Crime Branch (TVM Rural). Upon completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court, Kattakkada and cognizance thereon were taken as C.C.No.2688 of 2016. Annexure-2 is the aforesaid final report. 4. The petitioner approached the Human Rights Commission alleging victimization on the ground that the aforesaid crime was registered against them as a retaliation for the initiation of certain criminal proceedings against some private financiers, at whose instance, the petitioners were subjected to harassment on demand of exorbitant interest. It was also averred in the aforesaid complaint before the Human Rights Commission that the registration of the Crime No.978 of 2014 by Malayinkeezhu Police station was at the instance of the said private financiers, and the police was aiding them. The complaint submitted by the petitioner before the Human Rights Crl.M.C.No.601/19 4 Commission was numbered as HRMP.No.2836/15/TVM. In the aforesaid complaint, an investigation was conducted by the Human Rights Commission through the Chief Investigation Officer attached to the Commission. Annexure-3 is the detailed report submitted by the Chief Investigation Officer, and a perusal of the same would indicate several discrepancies in the investigation conducted by the police in the crime in which the petitioners were accused and also highlighted inaction on the part of the Station House Officer concerned in acting upon the complaint submitted by the petitioners herein. In the said report, crime Nos.978 of 2014, 979 of 2014 and 615 of 2013, which were registered in connection with the transactions and complaints against the petitioners herein, were directed to be further investigated by the Additional Director General of Police (HQ), who was holding the charge of Nodal Officer, ‘Operation Kubera’, a drive conducted by the police, against illegal money lending. In addition to the above, departmental inquiry was ordered against Sri.Muhammed Rajas, SI of Police, Crl.M.C.No.601/19 5 Malayinkeezhu Police Station from 18.04.2012 onwards. The aforesaid report was accepted by the Human Rights Commission, and as per Annexure-A4 order, further proceedings under the aforesaid report were ordered. 5. Subsequently, as apparently further measures in strict compliance with the order passed by the Human Rights Commission were not taken, another petition was submitted by the petitioners before the Commission highlighting this aspect. Accordingly, as per Annexure-5, the Commission directed the police to submit a report of the action taken on the orders passed. In pursuance to the same, the Additional Director General of Police (Crimes) forwarded vide Annexure-6 communication, an investigation report conducted by the Superintendent of Police, CBCID, EOW1, Kollam to the Commission. The annexure-6 report contained a detailed investigation. Among other findings therein, it was also observed in the said report that the allegation raised against the petitioners herein in Crime No.978 of 2014 is false. It was 6 Crl.M.C.No.601/19 found that, even though the allegation against the petitioners is that the amount collected from the husband of the de facto complainant towards premium of insurance policy during the relevant period was not remitted by the petitioners towards premium, on inquiry, it was revealed that there was no default in paying the premium in the particular policy. Based on the aforesaid findings in Annexure-6, the Deputy Superintendent of Police directed further investigation in Crime Nos.978 of 2014, 979 of 2014, 982 of 2014, 397 of 2015 and 190 of 2015 through an independent agency as requested by the petitioners herein. The Human Rights Commission considered the aforesaid report. It passed Annexure-7 order directing further investigation by the Officer, not below the rank of Deputy Superintendent of Police, Crime Branch in respect of Crime Nos.979 of 2014, 982 of 2014 and 397 of 2015. As regards to the further investigation in Crime No.978 of 2014, which is the subject matter, in this case, it was observed by the Human Rights Commission that since the final report is already Crl.M.C.No.601/19 7 submitted and the court concerned has taken cognizance thereof, it is not proper to direct a further investigation in the matter, by the Commission. However, Annexure-7 report would indicate that the observations made by the Superintendent of Police in Annexure-6 report regarding the falsity in the allegations against the petitioners in Crime No.978 of 2014 were accepted, and only because the cognizance was already taken by the Magistrate concerned, further investigation was not ordered. Even though the said report was challenged by the 2[nd] respondent de facto complainant before this Court; the same was dismissed as per Annexure-8 judgment in W.P.(C). No.37014 of 2017. 6. Subsequently, the petitioners herein submitted a representation before the Director General of Police (Crimes), praying for orders directing further investigation in Crime No.978 of 2014 of Malayinkeezhu Police Station, as well. After perusing the records relating to the aforesaid case, Annexure-9 communication was issued by the Director General of Police Crl.M.C.No.601/19 8 (Crimes) to the State Police Chief recommending further investigation in Crime No.978 of 2014. Consequently, the Annexure-10 order was passed by the State Police Chief, ordering further investigation in Crime No.978 of 2014 by the CBCID. Accordingly, information regarding further investigation under Section 173(8) of Cr.P.C. was submitted by the CBCID, Kollam, before the Judicial First Class Magistrate Court, Kattakkada and the crime was renumbered as Crime No.100/CR/2018-EOWI/Kollam and later investigation was handed over to Crime Branch, Thiruvananthapuram. While the investigation mentioned above was pending, this Crl.M.C. was filed by the petitioners seeking to quash all further proceedings in the crime mentioned above. 7. During the pendency of this Crl.M.C., the investigation was completed. A final report was submitted which is produced as document No.4 by the petitioners herein along with a memo submitted on 10.03.2021. In these circumstances, this Crl. M.C. is being considered. Crl.M.C.No.601/19 9 8. In the final report submitted by the Crime Branch, Thiruvananthapuram, before the Judicial First Class Magistrate Court, Kattakkada, the findings regarding the falsity of the allegations against the petitioners were confirmed. It is evident from the aforesaid report that all the witnesses cited in Annexure-2 final report submitted earlier were re-examined, and further statements were recorded. The records maintained by the Life Insurance Corporation of India pertaining to the insurance policy of the husband of the 2[nd] respondent de facto complainant were also examined. After evaluating all the materials above, the investigating officer arrived at a specific conclusion in document No.4 to the effect that there was no default in payment of premium in respect of the de facto complainant’s husband’s policy during the relevant period. Certain discrepancies which go to the root of the complaint put forward by the de facto complainant concerning the amount of payment were also explicitly taken note of. It was found that there was some marked difference between the amount Crl.M.C.No.601/19 10 allegedly collected by the petitioners herein and the purposes for which the same was collected, going by the First Information Statement in Crime No.978 of 2014 and in the subsequent complaints submitted by the de facto complainant. However, in the supplementary report, despite arriving at a specific conclusion that the allegation against the petitioners herein was false, the case was referred as undetected. The grievance highlighted by the petitioners is that, since the case is remaining as undetected despite having all the materials to refer the case as a false case, it causes serious prejudice to the petitioners herein. 9. Heard, Sri.S.K.Balachandran learned counsel for the petitioners, Smt.S.Majitha learned counsel for the 2[nd] respondent de facto complainant and Sri.Sudheer Gopalakrishnan learned Public Prosecutor for the State. 10. Subsequent to the filing of this Crl.M.C., additional respondents 3 and 4 were also impleaded in the party array, and notices were sent to them. Even though the service of Crl.M.C.No.601/19 11 notices against them was completed, there is no appearance on their part. 11. The subject matter of this Crl.M.C. relates to the sustainability of the criminal prosecution pending against the petitioners herein. The records reveal that the petitioners have already undergone several rounds of litigations through various forums and Government Authorities. The specific case of the petitioners is that they are being victimized at the instance of certain private financiers because the petitioners have initiated certain criminal proceedings against them for collection of interest at exorbitant rates. According to him, the crime, which is the subject matter of this case, was registered at their instance, and the disastrous consequences as far as petitioners are concerned due to the said complaint are that, the agencyship of LIC of both the petitioners were cancelled due to this complaint. It is a fact that in the repeated investigations conducted by various agencies, including the Chief Investigating Officer of Human Rights Commission and Crime Crl.M.C.No.601/19 12 Branch, the specific finding entered by all such agencies is to the effect that the allegations raised against the petitioners are false. Despite the above, a final report was filed by referring it as a case of undetected instead of reporting it as a false case. Since specific materials were brought out indicating that the allegations are false, the case should have been referred to as a false case. Since such a report has not been filed, the learned counsel for the petitioners submits that it causes serious prejudice to them, and therefore, this is a fit case in which powers of this Court under Section 482 Cr.P.C. has to be invoked. 12. When the materials on record are considered, I find some force in the contention of the learned counsel for the petitioners. In Annexure-2 final report originally filed in Crime No.978 of 2014, the specific allegation against the petitioners is misappropriation of the amounts collected from the husband of the 2[nd] respondent and the respondents 3 and 4 herein. As per the findings in Annexure-2, the aforesaid amounts were handed Crl.M.C.No.601/19 13 over to the petitioners herein towards payment of premium of insurance policies in their respective names. The Annexure-3 investigation report submitted by the Chief Investigation Officer attached to the Human Rights Commission subsequently investigated the aforesaid allegations. The said report contains a specific finding that the said allegations are false. The above mentioned finding is reiterated in Annexure-6 report submitted by the Superintendent of Police, CBCID, EOW1-Kollam. The reports mentioned above also fortify the petitioner’s contentions that they were being victimized at the instance of certain private financiers. The specific directions issued by the Human Rights Commission that the matter is to be investigated by the officer in charge of Nodal Officer of ‘Operation Kubera’ is a clear indication of the fact above. In the final report submitted after further investigation by the Crime Branch, the above mentioned finding of harassment and the falsity in the allegations regarding the misappropriation of the amounts collected towards premium is affirmed. It is discernible from Crl.M.C.No.601/19 14 the final report that all the witnesses who were cited to support the prosecution under Annexure-2 were re-examined, and their statements were recorded. The conclusion as to the falsity of the allegations against the petitioners herein was based on the same. Despite all such findings by all the aforesaid authorities, the conclusion in the subsequent final report is to refer to the case as undetected. I am of the view that despite having collected so many materials in a series of investigations by investigating officers belonging to various authorities, the reluctance expressed by the investigating agency in referring the same as a false case is suspicious. Considering the entire facts and circumstances of the case, I am of the view that filing such a report terming the offence as undetected is improper. Indeed, the same would cause serious prejudice to the petitioners, particularly because the documents and proceedings I have already referred to above clearly indicate continuous harassment of the petitioners herein. The materials and findings unearthed by the investigating agencies through Crl.M.C.No.601/19 15 the investigations conducted at various levels at various occasions clearly indicate the innocence of the petitioners herein. The learned counsel for the petitioners places reliance upon the decisions of this Court in **Sahadevan v. State of Kerala [2003 KHC 1996],** wherein it is held that inherent powers of the High Court can be invoked when the proceedings against the accused are malafide and instituted with an ulterior motive. In **State of Haryana v. Bhajan Lal [1992 KHC 600]** also, it was held that, when the proceedings are initiated to wreak vengeance, the powers of this Court can be invoked. In this case, I am convinced that the filing of a final report after further investigation, observing that the offence is undetected, despite having all the materials to conclude that no offence is made out, is harassment. In such circumstances, I am of the view that this is a fit case in which powers of this Court under Section 482 Cr.P.C. can be invoked. In the result, this Crl.M.C. is allowed, and the proceedings in Crime No.100/CR/2018-EOW1, Kollam CBCID, in which Crl.M.C.No.601/19 16 investigation was completed by CBCID, Thiruvananthapuram as Crime No.100/CB/TVM/2018 (Original Crime No.978 of 2014 of Malayinkeezhu Police Station) are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/18.3.22 Crl.M.C.No.601/19 17 ## _APPENDIX OF CRL.MC 601/2019_ _PETITIONER ANNEXURES_ - _ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO.978/2014 OF MALAYANKEEZHU POLICE STATION_ - _ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT IN FIR NO.978/2014 OF DISTRICT CRIME BRANCH (TVMRURAL)_ - _ANNEXURE 3 TRUE COPY OF THE REPORT DATED 1.7.2015 SUBMITTED BY THE INVESTIGATION AGENCY ATTACHED TO THE KERALA STATE HUMAN RIGHTS COMMISSION_ - _ANNEXURE 4 TRUE COPY OF THE FINAL ORDER DATED 2.7.2015 OF THE KERALA STATE HUMAN RIGHTS COMMISSION_ - _ANNEXURE 5 TRUE COPY OF THE ORDER DATED 26.12.2016 OF THE HUMAN RIGHTS COMMISSION_ - _ANNEXURE 6 TRUE COPY OF THE REPORT DATED 27.5.2017 BY ADGP (CRIMES)_ - _ANNEXURE 7 TRUE COPY OF THE ORDER DATED 7.6.2017 OF THE HUMAN RIGHTS COMMISSION_ - _ANNEXURE 8 TRUE COPY OF THE JUDGMENT DATED 1.6.2018 INWPC.37014/2017_ - _ANNEXURE 9 TRUE COPY OF THE REPORT DATED 7.3.2018 OF DGP (CRIMES) TO DGP OF KERALA ALONG WITH REPORT OF POLICE SUPDT. CBCID, EOW 1 DATED 28.2.2018_ - _ANNEXURE 10 TRUE COPY OF THE ORDER NO.D6/53156/2018/PHQ DATED 16.3.2018 ISSUED BY THE STATE POLICE CHIEF_