Dr. Riji G Nair v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 CRL.MC NO. 4580 OF 2022 ``` ``` CRIME NO.6/2016 OF VACB, ERNAKULAM, Ernakulam ``` ## **`PETITIONER/S:`** ``` DR RIJI G NAIR, AGED 61 YEARS. S/O P.K. GANGADHARAN NAIR, RETD SUPERINTDENDING ENGINEER, IRRIGATION DEPARTMENT RESIDING AT SRI SRI HOUSE, THIRUVMULLAVARAM P.O, KOLLAM-691012., PIN - 691012 ``` ``` BY ADVS. MAHESH CHANDRAN C.UNNIKRISHNAN (KOLLAM) ANANDA PADMANABHAN VIJAYKRISHNAN S. MENON UTHARA A.S VIVEK NAIR P. ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682018`** - **`2 DYSP, VIGILANCE AND ANTI CORRPUTION BUREAU CENTRAL RANGE, ERNAKULAM – 682 017`** - **`3 ADV. HRITESH CHANDRAN SANTHI NIVAS, EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM-691505, PIN – 691505`** ``` BY SRI A RAJESH, SPECIAL GOVERNMENT PLEADER (VIGILANCE) SMT S.REKHA, SR. GOVERNMENT PLEADER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No.4580 of 2022 ..2.. **K.BABU, J ------------------------------------------------Crl.M.C. No.4580 of 2022 ------------------------------------------------Dated this the 23[rd] day of May, 2024** ## **O R D E R** The petitioner seeks to quash FIR No.6 of 2016 registered by the Vigilance and Anti-Corruption Bureau, Ernakulam. The petitioner is accused No.1 in the crime. He is alleged to have committed offences punishable under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, and Section 120B of the Indian Penal Code. 2. The petitioner was the Managing Director of the Kerala State Consumer Federation (the Consumer Fed, for short) during 2011-2013. The prosecution allegation is that the petitioner along with the Chairman and Chief Operating Officer (accused Nos. 2 and 3) abused their official position as public servants, conspired with accused Nos. 4 to 6, the Managing Director NICHE Crl.M.C. No.4580 of 2022 ..3.. Consultancy, Thiruvananthapuram, the Managing Director, Prajana Creations Kochi and the Managing Director, Octo plus Innovative Solutions and with dishonest intention entered into an agreement with the above mentioned event management groups (A4 to A6) under the guise of promotion of the growth of Consumer Fed in media and caused monitory loss to the tune of Rs.17 lakhs to the Consumer Fed whereby making unlawful gain to accused Nos. 4 to 6. 3. I have heard the learned counsel for the petitioner Shri. C. Unnikrishnan and Shri. A. Rajesh, the learned Special Government Pleader (Vigilance). 4. The learned counsel for the petitioner submitted that the allegations in the FIR are absolutely false. It is submitted that the petitioner in the capacity as the Managing Director of the Consumer Fed, a trading organization under the Co-operative Department established for the purpose of controlling the inflation of Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** the consumer goods in the State of Kerala, in order to give wide publicity regarding the availability of Consumer Fed stores and goods employed various event management groups. The learned counsel submitted that the creative steps taken by the petitioner was instrumental in the opening of huge number of “Triveni Stores”, Medical Stores, Beverages Outlets and “Nanma Stores” under the Consumer Fed throughout the State of Kerala and the turnover of the Consumer Fed raised multi fold during his tenure. The learned counsel submitted that the Vigilance had registered a series of cases in different districts and most of them were dropped. The learned counsel further submitted that Annexure-1 FIR does not disclose any offences as alleged. It is further submitted that the petitioner in his capacity as the Managing Director had only implemented the decision taken by the Board of Directors in good faith. The learned counsel relied on Annexure-A2 counter affidavit Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** filed by the State in another case before this Court wherein the Vigilance Department took the stand that the registration of various FIRs against the Consumer Fed officials was unnecessary. 5. The learned Special Government Pleader submitted that the FIR contains the required ingredients to attract the offences. The Special Government Pleader relying on _**Neeharika Infrastructure Pvt. Ltd v State of Maharashtra and others**_ [AIR 2021 SC 1918] submitted that when a prayer for quashing the FIR is made, the Court when it exercises the power under Section 482 Cr.P.C. only has to consider whether the allegations in the FIR disclose the commission of cognizable offences or not. 6. The Investigating Officer submitted a statement wherein the conclusions so far arrived during the course of investigation are narrated as follows:- Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** (a)The minutes of the Director Board Meeting No.5 of the Consumer Fed held on 27.07.2013 entrusted the Managing Director/petitioner to propagate the growth of Consumer Fed through social media and accorded permission to consider the proposal of the firms managed by accused Nos. 4 to 6 for the same. (b) But, even long before the decision of the Director Board, on 30.09.2021 itself, the petitioner had given offer letter to S.Anil, Vice President, MD Niche Consultants to propagate the affairs of Consumer Fed in the media. The petitioner had again extended the agreement with M.D. Niche Consultants for the coming three years. (c)The members of the Director Board gave evidence that the decision related to the media propagation was not submitted before the Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** Director Board for consideration and they have not given any sanction in this regard. (d)The petitioner had not invited competitive tenders/quotations for the proposed work from different companies and firms working in the field. (e)The petitioner had directly come into agreement with A4, A5 and A6 in connivance with the IT division of the Consumer Federation headed by accused No.3. (f)Accused No.4. the Director, Niche Media Consultancy received a sum of Rs.15,94,162/from the Consumer Fed as payment towards media propaganda during the period from 01.10.2011 to 01.04.2014. But there were no materials to show any work done by the said firm. Accused No.5, the Managing Director, Prajana Creations, Kochi worked for a period of six Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** months from 01.08.2013 and received a sum of Rs.24,500/- from the Consumer Fed as payment towards media propaganda. Accused No.6, Managing Director, Octopus Innovative Solutions worked only for a period of six months and received a sum of Rs.58,800/- from the Consumer Fed as payment towards media propaganda. There are no materials to show any services rendered by these companies during those periods. (g)The petitioner and accused No.2 organized a meeting without any agenda in Hotel India Habitat World, Lodhi Road, New Delhi on 25.07.2012 without the knowledge of the Director Board. The Consumer Fed spent a sum of Rs.1,17,180/- as expenditure in connection with this meeting. The relevant file would reveal that Crl.M.C. No.4580 of 2022 **==> picture [20 x 9] intentionally omitted <==** the event was an extravagant affair in which liquor etc. was served. 7. The investigating agency concluded that the petitioner and accused Nos. 2 and 3, being public servants, misused their official position and caused financial loss to the Consumer Fed facilitating unlawful gain to themselves and the three media consultants under the guise of promotion of Consumer Fed. 8. The learned Special Government Pleader submitted that the materials available reveal the offences alleged. The FIR and the conclusions so far arrived by the Investigating Agency _prima facie_ reveal the ingredients of the offences alleged. 9. It is trite that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C. or under articles 226 and 227 of Constitution of India as the case may be and allow the law to take its own course. It Crl.M.C. No.4580 of 2022 **==> picture [26 x 9] intentionally omitted <==** is also settled that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely based on the allegations made in the complaint or in the documents accompanying the same per se. In _**Binod Kumar and Others v. State of Bihar**_ [2014 (10) SCC 663], the Supreme Court held that at the stage of quashing the complaint/FIR, the High Court is not embarked upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein. 10. In _**Indian Oil Corpn.v.NEPC India Ltd.**_ [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188], the Supreme Court has summarised the principles relating to exercise of jurisdiction under Section 482 CrPC to quash complaints and criminal proceedings as under : (SCC pp. 747-48, para 12) > “ _12_ . The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— _Madhavrao Jiwajirao Scindia_ v. Crl.M.C. No.4580 of 2022 ..11.. _Sambhajirao Chandrojirao Angre_ [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709] , _State of Haryana_ v. _Bhajan Lal_ [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , _Rupan Deol Bajaj_ v. _Kanwar Pal Singh Gill_ [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059 : 1995 Supp (4) SCR 237] , _CBI_ v. _Duncans Agro Industries Ltd._ [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , _State of Bihar_ v. _Rajendra Agrawalla_ [(1996) 8 SCC 164 : 1996 SCC (Cri) 628 : (1996) 1 SCR 744] , _Rajesh Bajaj_ v. _State (NCT of Delhi)_ [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : (1999) 1 SCR 1012] , _Medchl Chemicals & Pharma (P) Ltd._ v. _Biological E. Ltd._ [(2000) 3 SCC 269 : 2000 SCC (Cri) 615], _Hridaya Ranjan Prasad Verma_ v. _State of Bihar_ [(2000) 4 SCC 168 : 2000 SCC (Cri) 786], _M. Krishnan_ v. _Vijay Singh_ [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and _Zandu Pharmaceutical Works Ltd._ v. _Mohd. Sharaful Haque_ [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are: ( _i_ ) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. ( _ii_ ) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. ( _iii_ ) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. ( _iv_ ) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. Crl.M.C. No.4580 of 2022 ..12.. ( _v_ ) A given set of facts may make out : ( _a_ ) purely a civil wrong; or ( _b_ ) purely a criminal offence; or ( _c_ ) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 11. In _**M/s Neeharika Infrastructure Pvt. Ltd**_ , the Supreme Court held that when a prayer for quashing the FIR is made by the alleged accused and the Court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not and the Court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the Court has to permit the investigating agency/police to investigate the allegations in the FIR. 12. In the present case, the petitioner failed to convince this Court that the allegations levelled against Crl.M.C. No.4580 of 2022 **==> picture [26 x 9] intentionally omitted <==** him in the prosecution records made available do not disclose the offences under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code. The correctness or otherwise of the allegations levelled in the FIR is a matter to be tested during the course of investigation. The Crl.M.C. lacks merits and stands dismissed. It is made clear that this Court has not made any observations on the merits or otherwise of the allegations levelled in the FIR. Sd/- **K.BABU JUDGE** kkj Crl.M.C. No.4580 of 2022 ..14.. ## **`APPENDIX OF CRL.MC 4580/2022`** ``` PETITIONER ANNEXURES Annexure1 ``` ``` A TRUE COPY OF THE FIR NO. 06/2016 OF VACB ERNAKULAM PENDING BEFORE E.C & S.J MUVATTUPUZHA ``` ``` Annexure2A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 01.08.2018 PRODUCED BY THE VIGILANCE DEPARTMENT Annexure A4A true copy of the minutes prepared fortheyear2013-2014dated 27/07/2013 Annexure A6A true copy of the audit certificate for the financial year 2010-2011 Annexure A6(a)A true copy of the audit certificate for the financial year 2011-2012 Annexure A3A true copy of clientele of the company (Accused No.4) procured from their website Annexure A5A true copy of some of the media visibility report prepared by the agencies ```