Jossy Varghese v. Inspector of Police, CBI, ACB, SPE, COCHIN

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 CRL.REV.PET NO. 293 OF 2024** **CRIME NO.RC 26(A)/2008 OF CENTRAL BUREAU OF INVESTIGATION, KOCHI,** ## **ERNAKULAM** **AGAINST THE ORDER/JUDGMENT DATED 05.03.2024 IN CRL.M.P NO.229/2024 IN CC NO.29 OF 2011 OF SPECIAL COURT, SPE/CBI, THIRUVANANTHAPURAM REVISION PETITIONER/ACCUSED NO.2:** **JOSSY VARGHESE, AGED 63 YEARS, S/O LATE T J VARGHESE, THOPPIL HOUSE, KURISUMMOODU, CHANGANASSERY KOTTAYAM, PIN - 686101 BY ADVS. SHAIJAN C.GEORGE VINAI JOHN HASHMI V.Z. TINCY MARIA SCARIA** ## **RESPONDENT/COMPLAINANT:** **INSPECTOR OF POLICE, CBI, ACB, SPE, COCHIN, PIN - 682017** **BY ADV SRI.SREELAL N WARRIER, SPL GP FOR CBI** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No.293 of 2024 2 ## K.BABU, J. -------------------------------------- ## Criminal.R.P No.293 of 2024 --------------------------------------Dated this the 14[th] day of March, 2024 ## O R D E R The challenge in this Criminal Revision Petition is to the order dated 05.03.2024 in Crl.M.P No.229/2024 in C.C No.29/2011 on the file of the Special Court, SPE/CBI, Thiruvananthapuram. The petitioner is accused No.2 in the Calendar Case. He is alleged to have committed the offences punishable under Sections 120-B read with Section 419, 420, 467, 468 and 471 of the IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The prosecution case as described in the impugned order ## is extracted below: “3. The prosecution case is that the accused persons with an intention to deceive the Central Bank of India, Thiruvalla Branch, entered into a criminal conspiracy and cheated the Bank under the guise of sanctioning the loan to seven different persons namely Lalu C.Philip (CW29), Kurian V.Jacob(CW25), Jai Kurian(CW26), Ajay P.S.(CW23), Bindhu K.G. (CW24), S.Sudhakaran(CW54) and Prasantha.S(CW55) and obtained illegal gain by making loss to the bank. The counsel for the petitioner submitted that the second accused is alleged to have committed more offences than one of the same kind to deceive the bank after entering to criminal conspiracy with the co-accused persons. In accordance with the final report filed u/s.173 Cr.P.C., it is seen that the date of commission of offences are 21.7.2005, 25.08.2005, 01.09.2005, 07.11.2005, 01.12.2005, 01.09.2006 and 01.09.2006 respectively. Out of the Crl.R.P No.293 of 2024 3 said seven number of offences, the first five numbers of offences allegedly committed within the space of twelve months from the first to last and the last two offences allegedly committed on 01.09.2006. Under the provision of law all these offences can neither be charged together not tried together at one trial u/s.219(1) Cr.P.C.” ## 3. The CBI submitted the final report on 30.12.2009 before the Special Court. The petitioner and the other accused appeared in response to the summons. The Special Court framed charges against the petitioner and the other accused as early as in 2011. After a long lapse of 12 years, the Special Court scheduled the case for examination of witnesses. The Court examined 13 witnesses. On 29.02.2024, the petitioner filed an application urging the Court to act in terms of Section 219 Cr.PC. 4. The relevant pleadings in the petition are extracted below: “3. The prosecution allegation against A2 is that he has committed more offences than one of the same kind as mentioned above to deceive the Bank after entering into criminal conspiracy with the co accused persons. In accordance with the final report under Section 173 Cr.PC it is seen that the date of commission of offences are 21.07.2005, 25.08.2005, 01.09.2005, 07.11.2005, 01.12.2005, 01.09.2006 & 01.09.2006 respectively. 4. Out of the said seven number of offences the first five numbers of offences allegedly committed within the space of twelve months from the first to last and thee offences alleged six and seven are the offences that allegedly committed on 01.09.2006.” 5. The Trial Court dismissed the application essentially holding that the alleged acts are part of a conspiracy the purpose of Crl.R.P No.293 of 2024 4 which was to defraud the Central Bank of India, Thiruvalla Branch. The Court below held that since the transactions are part of the conspiracy and committed incessantly one by one, the offences cannot be said to have been considered as distinct offences. The learned Special Judge further held that if some of the offences are segregated from each other it would affect the prosecution case. 6. It is profitable to extract paragraphs 8, 9, 10, 11 and 16 of the impugned order, which read thus: “8. In the instant case on hand the allegation against A2 is that A2 along with A1-Mathew Jacob(Senior Manager Central bank of India, Thiruvalla Branch, A3-V.Divakaran, Senior Manager Central bank of India, Thiruvalla Branch, A4V.K.Shibu(document writer, SRO Peerimedu), A5C.P.Binu(document writer, SRO, Peerumedu, A6-Anoop Rajan, A7-Joshy Thomas, A8-T.C.Joseph, A9late K.P.Joseph(approved valuer, A10- Chandran field officer, Central bank of India) hatched a criminal conspiracy during 2005-06. In furtherance of the said criminal conspiracy A2 dishonestly created a power off attorney on 6.7.2005 in the name of his brother Sri.Joji Varghese and sale agreement dated 6.7.2005 between Joji Varghese and Lalu C Philip without the knowledge of Lalu.C.Philip for selling 4.55 acres of landed property to Lalu C.Philip for a consideration value of Rs.22.75 lakhs. A2 has fabricated a forged encumbrance certificate, land tax receipts and possession certificate. Similarly on 23.07.2005 A2 has dishonestly created another three power of attorney in the name of Sri Reji John and Kurian V Jacob and forged a boosted sale agreement dated 3.8.2005 between Reji John and Kurian V Jacob for selling of 4.93 acres of landed property in the name of Kurian V Jacob for a consideration value of Rs.24 lakhs. He has also fabricated tax receipt, possession certificate etc. Similarly on 25.7.2005, A2 has created another two power of attorney in the name of Reji John and a boosted sale agreement dated 3.8.2005 between Reji John and Smt.Jai Kurian for selling of Crl.R.P No.293 of 2024 5 4.93 acres of land in the name of Smt.Jai Kurian for a consideration value of Rs.24.25 lakhs. On 13.10.2005, A2 fabricated another power of attorney in the name of Bijumon and a boosted sale agreement dated 15.10.2005 between Bijumon and Sri.Ajay P.S for selling 5 acres of landed property in the name of Sri.Ajay P.S for a consideration of Rs.25 lakhs. A2 has fabricated encumbrance certificate, land tax receipt, possession certificate etc. A2 fabricated another power of attorney in the name of Bijumon on 9.11.2005 and fabricated a boosted sale agreement dated 17.11.2005 between Sri Bijumon and Binu.K.G for selling 4.48 acres of landed property in the name of Smt.Bindhu K.G for a consideration value of Rs.22.40 lakhs. A2 has dishonestly created forged and fabricated another sale agreement purported to be executed by Sri.Devasia, Roy Manuel and Jose Manuel dated 29.7.2006 for selling the property of 4.95 Acres of land to Smt.Prasantha for a consideration value of Rs.30 lakhs. 9. Upon consideration of the various allegations levelled against A2 and others it is clear beyond reasonable doubt that the various offences have been committed on different dates pursuant to the conspiracy hatched by the accused. The first offence in this kind committed on 6.7.2005 by creating false sale agreement between Joji Varghese and Lalu C. Philip and the second offence was committed on 21.7.2005, the third offence was committed on 27.7.2005, the 4th offence committed with respect to the property of Smt.Jai Kurian was on 25.7.2005 and the 5th offence was committed on 12.10.2005. The 6th offence was committed on 9.11.2005. The offence is said to have been committed if anything is done or omitted by any of the conspirators as part of the conspiracy. The allegation levelled against the second accused revealed that in every instance, the crime is committed against different person after dishonestly creating a power of attorney or an encumbrance certificate or possession certificate, so the date of creation of first fabricated document is to be considered as the date on which the offence is said to have been committed. The fabrication of tax receipt, possession certificate and encumbrance certificate after fabricating power of attorney can only be treated as part of the same crime and it cannot be separated from others as it form integral part of the same act. On going through the various dates mentioned in the charge sheet it can be seen that the power of attorneys’ alleged to have been created by A2 on 6.7.2005, 27.7.2005, 25.7.2005, 13.10.2005, 9.11.2005. A2 has fabricated power of attorney of Sri.Lalu. C.Philip on 6.7.2005, Jai Kurian on 25.7.2005, Ajay P.S on 13.10.2005, Bindhu K.G. on 9.11.2005 and Kurian Jacob on Crl.R.P No.293 of 2024 6 10.11.2005. They have created fabricated encumbrance certificate of S.Sudhakran on 29.2.2006 and fabricated possession certificate of Prasantha on 25.4.2006. Various dates mentioned herein above shows that all the offences are committed within a span of 12 months. 10. The learned counsel for the petitioner submitted that two offences are committed on 1.9.2006. Therefore that two offences are to be split up from the other one and to be tried separately. The final report reveals that on 1.9.2006 A2 in pursuance of the conspiracy withdraw the loan amount by utilizing forged two withdrawal cheques and the amount was utilized for his personal purpose other than the purpose in which the loan was sanctioned. The allegation itself shows that the amount was alleged to have been withdrawn from the account by using forged withdrawal cheque as part of the offence committed in the same transaction and this particular act cannot be segregated from other offences committed by the accused. So, withdrawing certain amount using forged withdrawal cheque from the account of Sudhakaran and Prasantha cannot be treated as a different offence. Therefore, the contention of the learned counsel for the petitioner that the trial of last two offences committed on 1.9.2006 should be segregated and tried separately is not a meritorious one. 11. In this regard it is important to identify the distinction of “every distinct offences”. Section 218 of the code provides that all every distinct offences of which any person is accused there shall be charge separately. Section 219, 220, 221, and 223 are the exception to the said rule. Section 219 prescribes that when a person is accused of more offences than one of the same kind committed within a period of 12 months from the first to last of such offences whether in respect of the same person or not he may be charged with and tried it one trial for any number of them not exceeding three. Section 220, 221, and 222 are also dealt with a trial of more than one offences. Section 222 dealt with how to punish a person for minor offences. Section 223 dealt with for which of the offences person may be charged jointly. 223(1) stipulates that person accused of the same offences committed in the course of the same transaction can be tried together. 12. xxx xxx xxx 13. xxx xxx xxx 16. In the instant case on hand all the initial act of fabrication of power of attorney were done by A2 as part of the conspiracy and subsequently ancillary acts were done as part of the conspiracy. The purpose of conspiracy is to defraud the bank and obtain unlawful gain. The bank officials and other Crl.R.P No.293 of 2024 7 persons had gone together and committed various offences against different persons. Since it is a part of the conspiracy and committed incessantly one by one, the offence cannot be said to have been considered as a distinct offence. If some of the offences are segregated from each other it will affect the prosecution case as certain documents is required for the production in both cases and it makes the allegation worthless.” 7. The learned counsel for the petitioner relying on State of Jharkhand v. Lalu Prasad yadav [(2017) 8 SCC 1] and Nasib Singh v. State of Punjab [(2022) 2 SCC 89] submitted that the Court below should have invoked Section 219 (1) Cr.PC. 8. The petitioner pleaded before the Special Court that as the last two counts were allegedly committed on 01.09.2006, those are to be split up and tried separately. 9. Accused Nos.1 and 3 were the Senior Managers of the Central Bank of India, Thiruvalla Branch. Accused Nos.4 to 8 are document writers. Accused No.9 is an approved valuer. Accused No.10 is a field officer of the Central Bank of India. The prosecution case is that the petitioner and the other accused hatched a conspiracy during 2005-2006 and in furtherance of the conspiracy the petitioner dishonestly created a power of attorney on 06.07.2005 in the name of his brother and a sale agreement between two others without the knowledge of Lalu.C.Philip for Crl.R.P No.293 of 2024 8 selling 4.55 acres of landed property. The petitioner fabricated a forged encumbrance certificate, land tax receipt and possession certificate. The petitioner is alleged to have dishonestly created documents and fabricated tax receipts and possession certificates during different dates. The petitioner is also alleged to have dishonestly created forged and fabricated sale agreement purported to be executed by Sri.Devasia, Sri.Roy Manuel and Sri.Jose Manuel in 2006. The prosecution alleges that on 01.09.2006 the petitioner in pursuance of the conspiracy withdrew the loan amount from the bank utilising forged withdrawal cheques. The plea of the petitioner before the Special Court was that the trial of the two counts of offences allegedly committed on 01.09.2006 should be segregated and tried separately. 10. Section 218 Cr.PC provides that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately. Sub-section (2) of Section 218 says that nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223 of Cr.PC. Therefore Sections 219, 220, 221 and 223 of the Cr.PC are exceptions to the rule provided in sub-section (1) of Section 218 Crl.R.P No.293 of 2024 9 Cr.PC. Section 219 Cr.PC prescribes that 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. Section 220 Cr.PC provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Section 223 refers to persons who may be charged and tried together. Section 223 (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. Sub-section (d) says that persons accused of different offences committed in the course of the same transaction may also be tried together. 11. The expression 'same transaction' is vital in the present factual matrix. There cannot be a universal formula for the purpose of determining whether two or more acts constitute the same transaction. The community of purpose or design and continuity of action manifest that the same or different offences Crl.R.P No.293 of 2024 10 were committed in the course of the same transaction. A series of acts whether are so connected together as to form the same transaction is a question of fact. ## 12. In Mohan Baitha v. State of Bihar [(2001) 4 SCC 350], the Supreme Court had considered the scope of Section 220 Cr.PC construing the meaning of expression “same transaction”. In Mohan Baitha the Supreme Court held thus: “4..................The expression “same transaction” from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria.” ## 13. In Banwarilal Jhunjhunwala v. Union of India (AIR 1963 SC 1620) , the Supreme Court observed that two offences would be distinct if they be not in any way inter-related and if there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were Crl.R.P No.293 of 2024 11 committed whether there be separate charges for those offences or not. 14. The Court below after appreciating the facts held that all the acts of fabrication of power of attorney were done by the petitioner as part of the conspiracy and subsequently ancillary acts were done as part of the conspiracy. The learned Special Judge further held that the purpose of conspiracy is to defraud the bank and obtain unlawful gain. The Special Judge further observed that the acts were committed incessantly one by one and therefore, they form the same transaction. 15. In Lalu Prasad yadav (supra), the Supreme Court was considering an alleged conspiracy between 1988-1996. In that factual matrix the Supreme Court held that it cannot be said that defalcation was same transaction as the transactions were in different treasuries for different years, different amounts, different allotment letters, supply orders and suppliers. The Supreme Court further observed that there can be separate trial as the defalcations have been made in various years by combination of different accused persons. 16. The present case is different from the facts considered in Crl.R.P No.293 of 2024 12 Lalu Prasad yadav . In Nasib Singh, the other decision relied on by the learned counsel for the petitioner, the Supreme Court observed that the Trial Court should apply a two-pronged test, namely (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay. The Apex Court further observed that the possibility of conducting a joint trial will have to be determined at the beginning of the trial. In the present case, the Special Court found that joint trial would not cause any prejudice to the accused rather separate trial would cause prejudice to the prosecution. 17. In the present case, the petitioner filed an application seeking separate trial, 13 years after framing of charges and that too after the examination of Charge Witness No.1. The Trial Judge noted that when the chief examination of PW1 which consists of 34 pages, was almost over, the counsel appearing for the petitioner stood up and submitted that he had filed a petition seeking separate trial. It has been brought to my notice that as many as 13 witnesses have been examined by the prosecution. I have gone through the available material, which would show that prima facie the offences alleged form part of the same transaction. Crl.R.P No.293 of 2024 13 18. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC Crl.R.P No.293 of 2024 14 ## 299)] }. There is nothing to show that the order passed by the Special Judge is perverse or there is non consideration of any relevant material or there is culpable misreading of records. Therefore, this Court is not justified in interfering with the impugned order. All the challenges in this revision petition, therefore, fail. The Criminal Revision Petition stands dismissed. Sd/K.BABU, JUDGE KAS