Hariharan v. State of Kerala

**==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 ``` ``` CRL.MC NO.9940OF 2024 ``` ``` CRIME NO.156 OF 2006 OF CBCID, PATHANAMTHITTA, Pathanamthitta ``` ## **`PETITIONER/1[ST] ACCUSED:`** ``` HARIHARAN AGED 63 YEARS S/O. RAMASACHARI, PEELIKAYATHIL VEEDU, CHERANELLUR VILLAGE, KUNANTHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 683544 ``` ``` BY ADVS. SHIRAZ ABDULLA M.S. K.ABDUL NASSAR VISHNU DEV C.S. PARVATHI HARISH KUMAR ABBAS SALIM ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` ``` SMT. REKHA S, SR. PUBLIC PROSECUTOR SRI. A RAJESH, SPL. PUBLIC PROSECUTOR(VIG) ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ON 10.03.2025, THE COURT ON 09.04.2025 PASSED THE FOLLOWING: ``` 2 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` Crl.M.C.No.9940 of 2024 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.M.C.No.9940 of 2024** **----------------------------------------------------------Dated this the 9[th] day of April 2025** ## **O R D E R** The 1[st] accused in C.C.No.65 of 2016, pending before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram seeks in this petition filed under Section 528 of the Bharathiya Nagarik Suraksha Sanhitha, 2023, to quash the final report based on which C.C.No.65 of 2016 was initiated and the proceedings as against him in that case. 2. The respondent has placed on record a report of the investigating officer. 3. Heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and the learned Special Public Prosecutor (Vigilance). 4. The learned counsel for the petitioner at the outset submitted that having accused Nos.2 and 4 expired and proceedings against accused Nos.3 and 5 been quashed and the defacto complainant expired, the possibility of a successful prosecution against the petitioner became bleak. For that and as **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 3 Crl.M.C.No.9940 of 2024 the materials produced by the prosecution present an inconsistent case and unbelievable story, the proceedings against the petitioner is liable to be quashed. To appreciate the contention of the petitioner, the allegations based on which the prosecution has been launched, after shorn off unnecessary details, are stated below: 5. The defacto complainant was an Assistant Engineer. The petitioner was an acquaintance of her son, the 2[nd] witness. The petitioner misused the opportunity and obtained tax receipts, nativity certificate, etc. from the defacto complainant. He with a fraudulent intention, handed over those documents to the 2[nd] accused, who obtained a sales tax registration presenting accused No.6 as an impersonator and using the said certificates. Accused No.7, who was a public servant, issued the sales tax registration, misusing his official position and violating the procedure. Using that sales tax registration, accused No.3 and 4 transported veneer to other States without remitting sales tax and thereby caused a loss of Rs.53,12,105/- to the State. Thus, the petitioner and his co-accused had committed offences punishable under Sections 468, 471, 419 and 420 r/w 34 of the **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 4 ## Crl.M.C.No.9940 of 2024 Indian Penal Code, 1860 and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 6. Proceedings against accused Nos.3 and 5 were quashed by this court in two separate proceedings. Annexure C and D are the respective orders. The allegation against accused No.3 was that using the sales tax registration, which the 2[nd] accused obtained fraudulently, transported veneer to neighbouring States and thereby committed tax evasion. This Court, after considering the materials on record, found that no sufficient evidence is proposed to implicate him with the offences. The role of the 5[th] accused is that as he introduced, the 1[st] accused handed over certificates obtained from the defacto complainant to the 2[nd] accused. Holding that there is absolutely no material to implicate him with such an allegation, proceedings against him was quashed. Want of evidence being the reason for quashing the case against accused Nos. 3 and 5, those orders are not available to the help of the petitioner. 7. The essential contention of the petitioner is that various statements given by witness Nos.1 and 2, who are the defacto complainant and her son, contain totally inconsistent **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 5 Crl.M.C.No.9940 of 2024 versions. The allegations set forth in the complaint are not the facts stated by the defacto complainant while giving successive statement to the investigating officer. It is also pointed out that the 2[nd] witness also took inconsistent stands in his various statements before the police. Even regarding the purpose for which the certificates in question were handed over to the petitioner, the defecto complainant and his son gave discrepant and conflicting statements. It is urged that the defacto complainant being an Assistant Engineer in Government service and his son a graduate, the possibility for handing over such revenue certificates to the petitioner for obtaining a passport is quite against logic. Accordingly, it is contended that the evidence proposed by the prosecution prima facie is unreliable and insufficient for a successful prosecution. Thus, it is contended that a prosecution based on the available materials would only be an abuse of the process of the court. 8. The Apex Court, in **State of Haryana and Others v. Bhajan Lal and Others [1992 Supp (1) SCC 335]** , after considering all the earlier precedents, has laid down principles which the High Court must consider while exercising its **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 6 ## Crl.M.C.No.9940 of 2024 jurisdiction under S.482 of the Code for quashing of proceedings. It will be relevant to refer to the following observations of the Apex Court: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under S.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: - (1) Where the allegations made in the first information report or 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 a case against the accused. - (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 7 ## Crl.M.C.No.9940 of 2024 under an order of a Magistrate within the purview of S.155(2) of the Code. - (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. - (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non - cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. - (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. - (7) Where a criminal proceeding is manifestly attended with mala fides and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 8 Crl.M.C.No.9940 of 2024 9. The aforesaid principles were reiterated by the Apex court in **Digambar v. State of Maharashtra [2024 KLT OnLine 3042 (SC)]** . In **Naresh Potteries (M/s. ) v. M/s. Aarti Industries [2025 KLT OnLine 1028]** the Apex Court held that the inherent powers under S.482 of the Code should be exercised sparingly and with great caution and further that the inherent powers should not be used to interfere with the jurisdiction of the lower courts or to scuttle a fair investigation or prosecution. 10. It is true that there are contradictions and inconsistencies in various statements given by the defacto complainant and witness No.2 concerning the mischievous acts of the petitioner in obtaining the documents. Now the defacto complainant is no more also. But when witness No.2 is available and his various statements converge in one aspect that the petitioner obtained certificates from himself and his mother making a false assurance, the question concerns his credibility. That is a matter to be decided based on evidence to be recorded at the trial. A decision on the reliability of his evidence is premature and unwarranted at this stage. The fact remains that **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` 9 ## Crl.M.C.No.9940 of 2024 using such documents a sales tax registration was obtained. The prosecution produced materials to show that accused No.6 appeared before the sales tax authorities to become a surety impersonating the defacto complainant. In the light of the said facts and materials, it cannot be said that this case is covered by any of the parameters laid down by the Apex court in **Bhajan Lal** (supra). Hence, the jurisdiction of this Court under Section 482 of the Code cannot be invoked for quashing the proceedings against the petitioner in C.C. No.65 of 2016 pending before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Crl.M.C. is accordingly dismissed. Sd/- ## **P.G. AJITHKUMAR JUDGE** PV 10 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30826 ``` Crl.M.C.No.9940 of 2024 ## **`APPENDIX OF CRL.MC 9940/2024`** |**`PETITIONER`**|**`ANNEXURES`**| |---|---| |**`Annexure A`**|<br>**`A TRUE COPY OF THE FINAL REPORT FILED IN`**| ||**`F.I.R.NO. 156/CR/KTM/2006 OF C.B.C.I.D.,`**| ||**`PATHANAMTHITTA BEFORE THE ENQUIRY`**| ||**`COMMISSION AND SPECIAL JUDGE,`**| ||**`THIRUVANANTHAPURAM AND PENDING AS`**| ||**`C.C.NO.65/2016 AND DATED 16/10/2014`**| |**`Annexure B`**|<br>**`A TRUE COPY OF THE CHARGE IN CC NO.`**| ||**`65/2016 PENDING BEFORE THE ENQUIRY`**| ||**`COMMISSION AND SPECIAL JUDGE,`**| ||**`THIRUVANANTHAPURAM AND DATED 14/11/2022`**| |**`Annexure C`**|<br>**`A TRUE COPY OF THE ORDER IN CRL.MC.NO.`**| ||**`5962/2022 AND DATED 9/11/2023`**| |**`Annexure D`**|<br>**`A TRUE COPY OF THE ORDER IN CRL.M.C.NO.`**| ||**`3685/2024 AND DATED 12/07/2024`**|