Crl.M.C. No. 3702 of 2022 (against the order in CC No. 20 of 2016, Enquiry Commissioner & Special Judge, Kozhikode)

**2025:KER:10600** **==> picture [58 x 57] intentionally omitted <==** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 10[TH] DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946** **CRL.MC NO. 3702 OF 2022** **AGAINST THE ORDER DATED 06.05.2022 IN CC NO.20 OF 2016 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE. CRIME NO.10/2003 OF SPECIAL INVESTIGATION UNIT, THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED NOS.3 & 8:** **1 C.M.SHABEER AGED 48 YEARS S/O.MOHAMMED KUTTY, CHITTANGATTU HOUSE, CHUNGAM, KONDOTTY.P.O, MALAPPURAM (FORMERLY JUNIOR CLERK, MANJERI CO-OPERATIVE URBAN BANK LIMITED, EVENING BRANCH, KONDOTTY), PIN – 673638.** **2 R.V.SUNIL KUMAR AGED 50 YEARS S/O.GOPALAKRISHNAN NAIR, UMA NIVAS, AYIKKARAPPADY.P.O, MALAPPURAM DISTRICT (FORMERLY JUNIOR CLERK, MCUB LTD, KONDOTTY EVENING BRANCH), PIN - 673637** **BY ADVS. B.RAMAN PILLAI (SR.) R.ANIL M.SUNILKUMAR SUJESH MENON V.B. THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT** 2025:KER:10600 2 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 **MAHESH BHANU S. S.LAKSHMI SANKAR RESSIL LONAN SWETHA P. DILEEP** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **BY SMT REKHA S., SR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING ON 10.02.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2025:KER:10600 3 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.M.C.No.3702 of 2022** **----------------------------------------------------------Dated this the 10[th] day of February, 2025** ## **O R D E R** Accused Nos.3 and 8 in C.C.No.20 of 2016 pending before the Court of Enquiry Commissioner and Special Judge, Kozhikode have filed this Crl.M.C. under Section 482 of the Code of Criminal Procedure, 1973 (Code). The offences alleged against them and their co-accused totalling eight are punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and under Section 120B of the Indian Penal Code, 1860 (IPC). 2. The case of the prosecution is the following: During the period between 09.11.2000 and 01.06.2002, a huge amount of money was collected from the Centurian Bank through the accounts opened in the Manjeri Co-operative Urban Bank Limited in the name of accused No.6 fictitious persons. The transfer of money was effected using the Instant Money Transfer Scheme (IMTS). There occurred a short collection of commission 2025:KER:10600 4 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 to a tune of Rs.3,56,165/-. Such transfers were in violation of the Reserve Bank of India guidelines. Hence the Reserve Bank of India took action and imposed a penalty of Rs.5,00,000/-. Thus, the Manjeri Co-operative Urban Bank sustained a total loss of Rs.8,56,165/-. The said loss was caused due to the illegal acts of accused Nos.1 to 5, 7 and 8, and it was pursuant to a conspiracy hatched by them with accused No.6 with a view to enure him undue pecuniary advantage. 3. Based on the said allegations, the Special Court framed a charge against the accused persons. Challenging the order framing charge, accused Nos.1 and 7 filed a revision petitions and accused Nos.3 and 8 (present petitioners) filed a Crl.M.C. before this Court. The said petitions were disposed of by this Court by a common order dated 01.09.2021. Annexure-2 is a copy of that order. While revision petitions were dismissed, the Crl.M.C. filed by the petitioners was allowed in part. On quashing the charge framed against them, the Special Court was directed to consider afresh the question of framing charges against them. 2025:KER:10600 5 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 4. In obedience to the said direction, the Special Court considered the matter afresh and held as per the order dated 06.05.2022, Annexure-3, that there were sufficient materials to presume that the petitioners committed the offences. Accordingly, a charge was ordered to be framed against them. The said order is under challenge in this Crl.M.C. 5. Heard the learned counsel for the petitioners and the learned Senior Public Prosecutor. 6. A statement of the investigating officer was placed on record by the learned Senior Public Prosecutor. The petitioners filed Crl.M.A. No.2 of 2024 producing therewith a copy of the judgment in C.C. No.122 of 2013 on the files of the Court of the Judicial Magistrate of the First Class, Malappuram. 7. The learned counsel for the petitioners would submit that alleging the same set of facts, another prosecution was initiated against the petitioners and their coaccused in C.C. No.20 of 2016 before the Judicial Magistrate 2025:KER:10600 6 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 of the First Class, Malappuram. In that case, apart from the accused herein, five more persons were arraigned. The offences alleged in that case are punishable under Sections 409, 465, 467, 468, 471, 477A, 120B read with Section 34 of the IPC. 8. The judgment in C.C.No.122 of 2013 is Annexure-4. It is submitted that the trial in Annexure-4 case was held based on the same set of facts and when there is commonality of allegations in both cases, the acquittal of the petitioners as per Annexure-4 creates a bar for the trial in C.C.No.122 of 2013. This is a petition for revising an order framing charge. The materials require consideration, ordinarily, are those which were produced by the prosecution alone. Annexure-4 judgment being an unimpeachable document and the question arises in the light of that document being one of law, I proceed to consider that document also. 9. The learned counsel for the petitioners would submit that the conspiracy aspects alleged in both cases are in regard to the same criminal acts and therefore the 2025:KER:10600 7 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 prosecution in C.C. No.20 of 2016 would not come within the exclusion clause contained in sub-section (4) of Section 300 of the Code. What is relevant is not the identity of the allegations on facts but the identity of the ingredients of the offence for the purpose of deciding whether or not the second trial is barred under Section 300 of the Code. In the view of the learned counsel for the petitioners, the prosecution in C.C. No.20 of 2016 is based on the same ingredients which constituted the foundation for the prosecution in C.C.No.122 of 2013. In that view of the matter, there is absolutely no justification to try the petitioners in C.C.No.20 of 2016, it is urged. In this regard, the learned counsel for the petitioners places reliance on **Sangeetaben Mahendrabhai Patel v. State of Gujarat and Another [AIR 2012 SC 2844]** and also **Vedhasingh J v. R.M.Govindan [AIR 2022 SC 3772]** . 10. The learned Senior Public Prosecutor, on the other hand, would submit that the offences on which the trial was held before the learned Judicial Magistrate of the First Class, Malappuram, were unconnected with the allegations in the 2025:KER:10600 8 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 present case. Misconduct of the public servant, including the petitioners, who were the Junior Clerks in the Manjeri Cooperative Urban Bank Limited by acting illegally and enabling accused No.6 to obtain pecuniary advantage is the core of allegations. When those offences were not at trial in the case before the learned Magistrate, this is a case which comes within the excluded category under sub-section (4) of Section 300 of the Code. The learned Prosecutor accordingly submitted that Annexure-4 judgment would not stand in the way of a trial in C.C. No.20 of 2016. It is further submitted that the conspiracy aspect is essentially the subject matter in C.C. No.20 of 2016 and there is sufficient materials to frame a charge against the petitioners. 11. The material facts which constitute the charges against the petitioners are narrated in paragraph No.7 in the statement filed by the investigating officer. Paragraph No.7 is extracted below: “7. The brief of the Vigilance Case is that Senior Clerk(A1), Sri.M Hassan, Manager(A2), Sri.C.M.Shabeer, Senior Clerk(A3), Sri.M.C.Sainul Abideen, Junior 2025:KER:10600 9 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 Clerk(A4). K.P.Abdul Rasheed, Junior Clerk(A5), Sri.K.K.Mohammed Faizal (A7), Asst. Secretary and Sri.R.V.Sunil Kumar, Junior Clerk(A8) of Manjeri Cooperative Urban Bank Ltd Kondotty evening branch entered into a criminal conspiracy among themselves and with Shri.P.Mohammed Asharaf(A6) and in pursuance of the said conspiracy, the said Mohammed Asharaf was allowed to open as many accounts at the Kondotty evening branch of the said bank in his name and several other fictitious names to collect huge amounts transferred from Centurion Bank Ltd, Mumbai branch as per Instant Money Transfer facility scheme and allowed the said Mohammed Asharaf (A6) to collect an amount of Rs.62,39,71,000/-(Sixty two crore thirty nine lakh seventy one thousand) during the period from 0811-2000 to 01- 06-2002 through 13 accounts without monitoring the funds in accordance with the instructions of the Reserve Bank of India and also without realizing the bank commission prescribed as per the Bank circulars and thereby caused pecuniary loss to the tune of Rs.8,56,165/-(Eight lakh fifty six thousand one hundred and sixty five) to the Bank by way of short collection of Bank commission for Rs.3,56,165/-(Three lakh fifty six thousand one hundred and sixty five) and liability occurred to the Bank for remittance of fine of Rs.5 lakhs imposed by the RBI for having violated their instructions.” 2025:KER:10600 10 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 12. Two essential elements are the basis for the prosecution. The first is that false documents were received in regard to the transactions in question and accounts were allowed to be opened in the name of fictitious persons. The second is that there occurred a short collection in the commission due to the bank concerning instant money transfers through the Manjeri Co-operative Urban Bank Limited. On account of such unauthorised transactions, which were against the guidelines of the Reserve Bank of India, the bank allegedly sustained a loss of Rs.3,56,165/-. The further allegation is that by allowing such unauthorised and illegal transactions, directions of the RBI were violated and that invited a penalty of Rs.5,00,000/-. Thus, a loss of Rs.8,56,165/- was occasioned to the Bank. 13. The offence under Section 13(1)(d) of the PC Act is said to be constituted since there was a conspiracy between the accused persons in order to enable accused No.6 to transact huge sums by instant money transfer facility in the name of various persons without ensuring payment of the 2025:KER:10600 11 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 commission due to the bank. The same were the allegations in C.C. No.122 of 2013 as well. Of course, misuse of the official position by the officials of the Bank that enabled accused No. 6 to obtain pecuniary advantage and corresponding loss to the bank were not specifically alleged in that case. However, when the same were part of the allegations in that case and the offence of criminal breach of trust was part of allegations, there is commonality of ingredients of the offences in both cases. 14. Viewed so, it has to be said that the ingredients of the offences for which trial was held in C.C. No.122 of 2013 are also the ingredients of the offences in the present case. The law laid down in **Sangeetaben** (supra) is that where an issue on facts has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of 2025:KER:10600 12 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 evidence to disturb the findings of the fact when the accused is tried subsequently for a different offence. The principle of bar of issue of estoppel is therefore not connected to the commonality of the offence, but concerning the admissibility of the evidence which would come to upset the finding of facts recorded by a competent court in a previous trial. Of course, in the said case, the Apex Court, based on the findings on facts, held that there was no bar for a second trial. But the aforementioned principle of law laid down in that case is applicable to the instant case inasmuch as the ingredients of the offence alleged in both cases are the same, except concerning misuse of official position by the bank officials including the petitioners who are accused Nos.3 and 8. Therefore, the said principle applies and a second trial becomes illegal. 15. In order to amount an offence under Section 13(1) (d) of the PC Act, a public servant should have acted in illegal means with dishonest intention so as to obtain valuable things or pecuniary advantage for himself or to any other person. 2025:KER:10600 13 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 Here, the allegation is that on account of the illegal acts of the petitioners and the other officials in the bank, accused No.6 obtained a pecuniary advantage. The conspiracy hatched between the accused persons in order to enable accused No. 6 to get such a pecuniary advantage is the allegation. But when all the accused were tried in C.C. No.122 of 2013 by a competent court and were acquitted, there cannot be another trial of them for the offence of same conspiracy again. On account of that bar, a charge in this case against the petitioners would only be groundless. 16. In the above circumstances, the order of the Special Court directing framing of charge against the petitioners is not able to be sustained. The impugned order is therefore set aside. I make it clear that these findings would not fetter the Manjeri Co-operative Urban Bank Limited, Kondotty, to proceed against the erred employees or its customers for realisation of any loss occasioned to the bank. It is also made clear that the authorities, such as the Reserve Bank of India and Cooperative Department will also have 2025:KER:10600 **==> picture [58 x 58] intentionally omitted <==** **==> picture [16 x 9] intentionally omitted <==** Crl.M.C.No.3702 of 2022 every right to take appropriate action in the matter and this order shall not be a bar. Accordingly this Crl.M.C. is allowed. Further proceedings against the petitioners in C.C. No.20 of 2016 on the files of the Enquiry Commissioner and Special Judge, Kozhikode are quashed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 2025:KER:10600 15 **==> picture [58 x 58] intentionally omitted <==** Crl.M.C.No.3702 of 2022 ## **APPENDIX OF CRL.MC 3702/2022** |**PETITIONER**|**ANNEXURES**| |---|---| |**ANNEXURE-1**|**THE TRUE COPY OF THE FINAL REPORT**| ||**DATED 9-9-2006**| |**ANNEXURE-2**|**THE TRUE COPY OF THE COMMON ORDER IN**| ||**CRL.M.C.5286 OF 2018 OF THIS HON'BLE**| ||**COURT DATED 1-9-2021**| |**ANNEXURE-3**|**THE CERTIFIED COPY OF THE ORDER DATED**| ||**6-5-2022 OF THE HON'BLE ENQUIRY**| ||**COMMISSIONER AND SPECIAL JUDGE,**| ||**KOZHIKODE**| |**ANNEXURE 4**|**THE CERTIFIED COPY OF THE JUDGMENT**| ||**DATED 4-4- 2023 IN C.C. NO. 122 OF**| ||**2013 IN THE COURT OF THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE, MALAPPURAM**|