Jose Thomas v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935** ## **Crl.MC.No. 3284 of 2013 ()** **--------------------------CC. NO.40/2011 OF SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM. ........** **PETITIONER/ACCUSED NO.2: -------------------------------------------** **JOSE THOMAS, AGED 59 YEARS, S/O.T.J. THOMAS, THEKKEKARA HOUSE, VATTAPPILLY, CHANGANASSERY, KOTTAYAM.** **BY ADVS.SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN.** **RESPONDENT/STATE:** **----------------------------------** **CENTRAL BUREAU OF INVESTIGATION, REP. BY STANDING COUNSEL, CENTRAL BUREAU OF INVESTIGATION (SPE), COCHIN-682 031. (RC 9(A)/2004).** **BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 3284 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** ## **ANNEXURE I** **COPY OF THE FINAL REPORT IN RC 9(A)/2004 OF CBI:SPE, KOCHI.** **ANNEXURE II** **COPY OF THE REPORT SUBMITTED BY THE STATE BANK OF TRAVANCORE TO THE CBI COURT DATED 07/06/2013.** **ANNEXURE III COPY OF THE ORDER PASSED BY THE DEBT RECOVERY TRIBUNAL DATED 18/04/2013 IN ORIGINAL APPLICATION NO.153/2005.** **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No. 3284 of 2013 ---------------------------------------------Dated this the 6[th] day of February, 2014 ## **ORDER** This criminal petition is filed under Section 482 Cr.P.C. to quash Annexure-1 final report in RC 9(A)/2004, which is pending before Special Court (SPE/CBI), Thiruvananthapuram as C.C.No.40/2011. 2. The above case was charge sheeted by CBI alleging offence punishable U/s.120B r/w Ss.420, 465, 471 IPC and Sec.13(2) r/w 13(1) (d) of Prevention of Corruption Act. The petitioner is the 2[nd] accused in the above case, which was charge sheeted by the CBI against 8 persons including the bank officials. The petitioner is the Managing partner of M/s. J.J. Exports, Changanassery and he availed different loans from State Bank of Travancore, Main Branch, Kottayam and also opened different accommodation Lcs with Crl.M.C.No.3284/13 2 the help of accused Nos. 1 and 8 and sustained a loss of Rs.2,58,33,385/- to the bank and thereby committed the aforesaid offences. In the meantime, accused remitted the entire due amount in the bank and settled the dispute with them. Hence, the petitioner, who is the 2[nd] accused, approached this Court to quash Annexure-A1 by invoking inherent powers of this Court under Section 482 Cr.P.C. 3. Heard both sides. The learned counsel appearing for the petitioner contended that while the matter is pending consideration by the CBI Court, the entire due amount was remitted by the petitioner and as per the direction of the Debt Recovery Tribunal now the matter is compromised and no purpose will be served in proceeding with Annexure-A1. He produced Annexure-II letter of SBT addressing to the CBI. 4. The learned counsel appearing for CBI strongly resisted the above contention and contended that even though the due amount is remitted, the criminal action Crl.M.C.No.3284/13 3 committed by the responsible public servant cannot be condoned. The offence under the Prevention of Corruption Act committed by the public servant especially responsible bank officer working in that official capacity cannot be quashed in the light of settled legal principle. Even though he repaid the entire amount in the bank, that will not provide any basis for quashing the aforesaid proceedings. 5. Now the question that arises for consideration is whether Annexure-A1 is to be quashed by invoking the inherent powers under Section 482 Cr.P.C. The inherent powers of the High Court contemplated u/s 482 Cr.P.C. has to be exercised only for the three purposes mentioned in the Section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section. Crl.M.C.No.3284/13 4 Inherent jurisdiction to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. Apex Court in Talab Haji Hussain V. Madhukar Purushotham Mondker (AIR 1958 SC 376) held that the inherent power contemplated under Section 482 Cr.P.C has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the test specifically laid down in the section itself. In the _**State of**_ V. _**Haryana Bhajanlal,**_ the Supreme Court pointed out that: “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, the proceedings are liable to be quashed”. 6. The specific case of the petitioner was that he was charge sheeted by the CBI and he is the 2[nd] accused in the above case. He settled the entire dispute between his firm and the bank and Annexure-II is the letter issued 5 Crl.M.C.No.3284/13 from the bank to the CBI Court. In Annexure-II, it is reported that the loan availed by M/s. J.J. Exports has been closed by the Company under a compromise settlement. In such a situation, the case in DRT against the Company has been withdrawn and they released the charge over the properties mortgaged with the bank. In Annexure-III order passed by the DRT, recorded satisfaction of the R.C. for Rs.84,10,000/- and DRC No.3023 was recalled and directed to return the title deeds, tax receipt and encumbrance certificate produced to the counsel for the bank, after closing the transaction by the recovery officer. But, it is pertinent to note that while the 1[st] accused was functioning as AGM, SBT Main Branch, Kottayam during 2002-2003, entered into a criminal conspiracy along with the 2[nd] accused and the other accused with intention to cheat SBT, Main Branch, Kottayam and in furtherance of that, A1 and A8 abusing their official position as public servants, dishonestly and Crl.M.C.No.3284/13 6 sanctioned LC facility to the 2[nd] accused in the name of J.J. Exports. In the export business, they credited cash credit accounts in the name of Coromondal Foot Wears India (P) Ltd., Changanassery. The bank officials colluded with the accused persons and permitted them to open LC without complying with all the statutory formalities issued by the Bank and thereby sustained huge loss to the bank and committed the offence. 7. It is clear from Annexure-II report that they had committed serious offence by misappropriating the public money, which was against the bank regulations. Now the contention of the petitioner was that he settled the transaction with the bank and by invoking inherent power, charge against him is to be quashed. 8. Now the question remains is whether repayment of the due amount is a ground to close the criminal proceedings against the public servants especially when a serious crime was charge sheeted Crl.M.C.No.3284/13 7 against them under Prevention of Corruption Act. It is true that the officers of the bank are public servants working in that official capacity in a public institution. The Apex Court in _**Gian Singh**_ v. _**State of Punjab**_ [2012 (4) KLT 108(SC)] held that when any compromise between the victim and the offender in relation to the offences under the special status like Prevention of Corruption Act or the offence committed by the public servants while working in that official capacity cannot be provided for any basis for quashing criminal proceedings involving such offence. In paragraph 57 of the above decision, the apex court considered the parameters under which circumstances a criminal proceedings can be quashed by invoking inherent jurisdiction, which reads as follows: “..... Similarly any compromise between the victim and offender in relation to the offences under special status like Prevention of Corruption Act or the offence committed by public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal case having overwhelming and pre-dominantly civil flavour stand on different footing for the purpose of quashing, Crl.M.C.No.3284/13 8 particularly the offences arising from commercial, financial, mercantile, civil, parnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In the above decision, the Apex Court considered the earlier decisions in _**B.S. Joshi & ors**_ v. _**State of Hariyana & anr.**_ [2003(2) KLT 1062SC)], _**Nikhil Merchant**_ v. _**CBI & anr.**_ [2008(3) KLT 769(SC)], _**Manoj Sharma**_ v. _**State and others**_ [2008(4) KLT 417(SC)] and _**Sushil Suri**_ v. _**CBI & anr.**_ [2011 (2) KLT SN 113 (case No.136)]. Relied _**R.P. Kapur**_ v. _**State of Punjab**_ [1960 SC 866] and _**Madhu Limaye**_ v. _**The State of Maharashtra**_ [ (1997) 4 SCC 551]. All these are guidelines issued by the Apex Court for quashing criminal proceedings by invoking the inherent powers under Section 482 Cr.P.C. 11. Therefore, the facts and circumstances in this case show that the offence committed by the petitioner is a serious one. Even though he repaid the amount in the bank and the bank issued a report to the CBI Court, that Crl.M.C.No.3284/13 9 itself is not a ground to quash Annexure-1 proceedings. I think that the parameters of the above legal principles will not attract the facts and circumstances of this case. Therefore, I am of the view that this is not a fit case to invoke the inherent jurisdiction under Section 482 Cr.P.C. and accordingly, this Crl.M.C. is dismissed. However, the petitioner is at liberty to take all his defence before the trial court. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3284/13 10 Crl.M.C.No.3284/13 11