Jahangir Gopal v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 18TH DAY OF NOVEMBER 2014/27TH KARTHIKA, 1936** ## **Crl.MC.No. 223 of 2013 ()** **-------------------------CC.NO. 10/2004 OF SPECIAL JUDGE, (CBI/SPE)-1, ERNAKULAM -----------------------** ## **PETITIONER/3RD ACCUSED:** **-------------------------------------------** **JAHANGIR GOPAL,S/O. LATE GOPAL,AGED 52 YEARS, RESIDING AT BHARGAVI BHAVAN, PARAVOOR, KOLLAM-691 301.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** **RESPONDENT/COMPLAINANT:** **------------------------------------------------** **CENTRAL BUREAU OF INVESTIGATION, KOCHI BRANCH, REPRESENTED BY THE SUPERINTENDENT OF POLICE, CBI, KOCHI BRANCH, KALOOR, KOCHI-682 017.** **BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-10-2014, THE COURT ON 18-11-2014 PASSED THE FOLLOWING:** **sts** **CRMC.NO.223/2013** **APPENDIX** ## **PETITIONER(S) ANNEXURES:** **ANNEX.1:TRUE COPY OF THE CHARGE IN CC NO.10 OF 2004 ON FILES OF THE HON'BLE COURT OF THE SPL.JUDGE (CBI/SPE)-I ERNAKULAM.** **ANNEX.2:TRUE COPY OF THE ORDER DTD 10/04/2012 IN CRL.MP NO 37 OF 2012 ON THE FILES OF THE HON'BLE COURT OF SPL.JUDGE (CBI/SPE)-I,ERNAKULAM.** ## **RESPONDENTS' ANNEXURES:** ## **NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K. Ramakrishnan, J.** ## **============================== Crl.M.C.No.223 of 2013** ## **============================== Dated this, the 18[ th] day of November, 2014.** ## **O R D E R** Third accused in C.C.No.10/2004 on the Court of the Special Judge, (CBI/SPE)-I, Ernakulam is the petitioner herein. He filed the application to quash the order passed by the Special Judge dismissing the application for altering the charge under Section 482 of Code of Criminal Procedure (hereinafter called the Code). 2. The present petitioner was arrayed as third accused in the above case. He is being tried along with 8 other accused persons alleging offences under Sections 120B, 409, 419, 420, 468 and 471 of Indian Penal Code and Section 13(1) (c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Further, he is also the accused in another case C.C.No.05/09 which is being tried jointly with this case. 3. The case of the prosecution in nutshell was that the offence was spread over for a period between the dates 20.05.1999 (the date of application of the loan by M/s.Kaveri Trading Co.) to 02.03.2002 (the date of demanding regularization of accounts _vis-a-vis_ M/s.Swastik Spices). The Crl.M.C.No.223 of 2013 : 2 : dates with which the offences are alleged to have been committed are not specifically mentioned. Proviso to Section 23 of the Prevention of Corruption Act provides that when an accused person is charged with an offence under Section 13(1) (c), the time included between the first and last of such dates in respect of which the offence is alleged to have been committed shall not exceed one year. Section 212 of Code of Criminal Procedure is analogous to the provisions of Section 23 of the Prevention of Corruption Act. Section 212(2) of the Code of Criminal Procedure also states that the time included between the first and last of the dates in a charge of criminal breach of trust or dishonest misappropriation of money shall not exceed one year. So, it is clear from the above provisions that in the case of misappropriation, the period should not exceed one year and if it is spread over for more than one year, separate charges has to be framed for that purpose and the court must duty bound to split up the period of misappropriation into such different spells not exceeding one year namely, from 20.05.1999 to 19.05.2000, 20.05.2000 to 19.05.2001 and 20.05.1999 to 02.03.2002. Though accused numbers 3,6 and 4 filed applications Crl.M.P.Nos.37, 38, and Crl.M.C.No.223 of 2013 : 3 : 39 of 2012 for altering the charge by splitting up the charges and frame fresh charges limiting each charge for the periods not exceeding one year in between the first and the last such cases, the Special Judge dismissed the applications by the impugned order which is being challenged by the petitioner. 4. Heard both sides. 5. The Counsel for the petitioner submitted that in this case, the present petitioner has been charged for the offence of misappropriation along with other offences which may spread over for a period of more than one year namely between 20.05.1999 to 02.03.2002. In the case of misappropriation, each misappropriation will amount to an independent offence and by virtue of Section 212 of the Code, only three such offences committed within a period of one year can be clubbed together and tried in a single trial. Further, Section 23 of the Prevention of Corruption Act says that, it is not necessary that only three offences need be clubbed. But, the span between the first and the last such offence should not exceed one year. So, under the circumstances, the court below was not justified in framing a single charge for the offence of misappropriation spread over for the period more Crl.M.C.No.223 of 2013 : 4 : than one year and that has to be split up and no prejudice will be caused to the prosecution if this is done. So, the framing of charge for the offence of misappropriation over a period of one year as single charge is unsustainable in law is the contention raised. 6. He had relied on the decision reported in **Parameswaran Nair v. State of Kerala [1990 (2) KLT 229]** and also relied on the unreported decision in **M.S. Hariharan Nair Vs. State of Kerala** , Crl.M.C.No.3049/09 of this court. 7. On the other hand, the Standing Counsel for Central Bureau of Investigation submitted that, the entire incident happened on account of a single conspiracy hatched, and if the charges are split up, then, it will affect the integrity of the conspiracy and if it is treated as a single transaction caused on account of the same conspiracy, then, it can be tried as a single offence and further, Section 23 is an exception to Section 212 of Code of Criminal Procedure. He had relied on the decision reported in **Swamirathnam and Others Vs. State of Madras [AIR 1957 SC 340]** in support of his case. 8. The case of the prosecution in this case was that the Crl.M.C.No.223 of 2013 : 5 : present accused was the managing partner of M/s.Kaveri Trading Company, located at 9/596, Cherootty Road, Kozhikode and as the proprietor of the firm engaged in trade of copra and coconut oil and accused numbers 4 and 5 were the employees of third accused in M/s Kalpa Oil and 6[th] accused is a relative of the third accused holding power of attorney for signing the documents of the firm and assisting him in the management of the business and 7[th] accused was an exemployee of Laxmi Vilas Bank, Kozhikode who was assisting third accused for the documentation for exports and bank transactions in respect of M/s.Kalpa Oils, Kaveri Trading Co., M/s.Swasthik Spices, M/s.Malabar Trading Co. and M/s.Transcend Exports. They conspired with accused numbers 1 and 2 who were working as Branch Manager Union Bank of India, Kozhikode Main Branch from 1996 to 13.05.2000 and 11.05.2000 to 14.07.2001 respectively for the purpose of cheating the bank and causing loss to the bank, misappropriated the amounts from the bank by presenting fake vouchers and valuations reports and allowed them to encash the amounts and presented fake bill of lading, bills of exchange and conducted bogus inspection and knowing that Crl.M.C.No.223 of 2013 : 6 : that they are bogus and false bill sanctioned the same and thereby, caused loss to the bank and thereby all of them have committed the offence punishable under Sections 120B, 409, 419, 420, 468 and 471 of Indian Penal Code and accused numbers 1 and 2 along with one E.A.Pai and Antony Tharakan - accused in C.C.No.05/09 committed the offence under Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act. So, it is clear from the above that the entire transaction was on account of the conspiracy hatched between the accused persons so as to help the accused number 3 to get more amount than what he is legally entitled to get by presenting false and fake bills and valuations statements and misusing the official position, the bank officials have favoured these accused persons and thereby, loss has been caused to the bank. So, in the case of conspiracy, if on account of the conspiracy, several things have taken place in the course of the same transaction of misappropriating the amount or cheating the bank, splitting up the charge for each offence will affect the integrity of the case itself. Further, if all the offences alleged are on account of the single conspiracy, then, all the offences committed as an outcome of the Crl.M.C.No.223 of 2013 : 7 : conspiracy has to be tried as a single offence happened during the course of the same transaction though it was spread over to several years. This was so held in the decision reported in **Swamirathnam and Others Vs. State of Madras [AIR** **1957 SC 340].** That was a case where several persons were cheated by the accused persons on account of a single conspiracy and it was spread over to several years and in that case, the Honourable Supreme Court has held that it can be treated as a single offence and in such cases, joining of all offences spread over for several years will not amount to mis joinder of charges. 9. Section 212 deals with the things to be mentioned in the charge which reads as follows: ## 212. **Particulars as to time, place and person:-** (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219: Provided that the time included between the first and last of such dates shall not exceed one year. Crl.M.C.No.223 of 2013 : 8 : 10. Section 213 deals with how and the manner in which committing of offences has to be stated which reads as follows: 213. **When manner of committing offence must be stated:-** When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. 11. Section 219 deals with three offences of same kind within year may be charged together which reads as follows: 219. **Three offences of same kind within year may - be charged together:** (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence. 12. So, by virtue of the provisions of the Code of Criminal Procedure if same type of offences have been committed within a span of one year, three such offences can Crl.M.C.No.223 of 2013 : 9 : be tried in a single trial. 13. Section 23 of Prevention of Corruption Act, 1988 deals with how the particulars of charge in relation with offence under Section 13(1)(c) has to be mentioned which reads as follows: ## **23. Particulars in a charge in relation to an offence - under section 13(1)(c):** Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), when an accused is charged with an offence under clause (c) of sub-section (1) of section 13, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 of the said Code: Provided that the time included between the first and last of such dates shall not exceed one year. 14. It is an exception to Section 219 of Code of Criminal Procedure where there is no limit of number of offences to be tried together in a single trial which happened within a span of one year. This was so held in the decision reported in **Parameswaran Nair v. State of Kerala [1990 (2) KLT 229]** . 15. Further, as far as the third accused is concerned, he is not affected by the mis joinder of charge and no prejudice will be caused to him on account of the same as he is the beneficiary of the outcome of the conspiracy. The dictum Crl.M.C.No.223 of 2013 : 10 : relied on by the Counsel for the petitioner in the unreported decision **Hariharan Nair Vs. State of Kerala** (supra) is an offence relating to Sections 406, 409, 468, 471 read with Section 34 of Indian Penal Code alone and it was not covered by the provisions of Prevention of Corruption Act as Section 23 is an exception to the general provision of joinder of charges provided under Section 219 of the Code of Criminal Procedure. So, that dictum is not applicable to the facts of this case. So, as rightly pointed out by the Standing Counsel for Central Bureau of Investigation, if the offences alleged are the outcome of the single conspiracy, then, all the offences were committed on account of that conspiracy in the course of the same transaction to implement the conspiracy hatched, then, it can be tried together in a single trial. So, under the circumstances, the charge framed by the court below for the offences over a period of one year on the basis of the conspiracy hatched cannot be said to be illegal as splitting up the charge will affect the conspiracy hatched which will affect the foundation of the prosecution case itself. So, there is no merit in the submission made by the Counsel for the petitioner that the court below was not justified in framing charge for the Crl.M.C.No.223 of 2013 : 11 : offence of misappropriation and criminal breach of trust spreading over for a period of more than one year and the dismissal of the application by the court below seeking for splitting up the charges and the petition is liable to be dismissed. In the result, the petition is dismissed. Sd/- **K.Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_