K. Deleepkumar v. State of Kerala and The Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 CRL.MC NO. 2019 OF 2020 ``` ``` AGAINST THE ORDER/JUDGMENTCC 11/2018 OF ENQUIRY ``` ## **`COMMISSIONER& SPECIAL JUDGE,THRISSUR`** ## **`PETITIONER/S:`** ``` K.DELEEPKUMAR AGED 49 YEARS S/O.C.K.RAMAN NAIR (LATE) RESIDING AT TMC 1/1127,DEVARITHAM, KARUMUDY HOUSE, KOTTIL LANE, KANATTUKARA, AYYANTHOLE VILLAGE, THRISSUR-11, (FORMER MOTOR VEHICLE INSPECTOR, SUB REGIONAL TRANSPORT OFFICE, SULTHANBATHERY, WAYANAD DISTRICT) BY ADVS. P.SAMSUDIN SRI.M.ANUROOP SMT.S.K.SREELAKSHMY ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031 2THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM,PIN-682 017 ``` ``` BY GOVERNMENT PLEADER ``` ``` SRI. RAJESH.A SPL. GP (VIGILANCE) SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2019 OF 2020 ``` ..2.. ## **ORDER** The petitioner, who is the accused in CC No.11/2018 before the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, is seeking to quash the FIR in V.C.No.4/2014/SCE of Vigilance and AntiCorruption Bureau, Special Cell, Ernakulam and the final report based on the FIR, in this petition filed under Section 482 of the Code of Criminal Procedure. 2. The petitioner is alleged to have committed the offence punishable under Section 13(2) r/w Section 13(1) (e) of the Prevention of Corruption Act, 1988. 3. The charge levelled against the petitioner is that while working as a Motor Vehicle Inspector, amassed assets worth Rs.19,12,505/- disproportionate to his known sources of income during the period from 01.01.2006 to 28.02.2013. It is alleged that the said amount comes to 66.26% of his total income. 4. The Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam conducted enquiry, as VE ``` CRL.MC NO. 2019 OF 2020 ``` ..3.. 3/2013/SCE, on the allegation that the petitioner amassed wealth disproportionate to his known sources of income. The petitioner was placed under suspension with effect from 20.11.2012. During the enquiry, the petitioner was asked to file a statement disclosing his assets. After considering the entire materials, the Vigilance and AntiCorruption Bureau completed the investigation and submitted final report before the Court below. 5. In the final report, the VACB alleged that the petitioner acquired assets disproportionate to his known sources of income as mentioned below. - A Assets at the beginning of the check period 23,300.00 Bank deposit (Plus 8.09 ares of land +Ambassador car + two scooters + 451.67gms of gold ornaments) - B Assets at the end of the check period (plus 14,91,603.00 488.34 gms of gold ornaments + two scooters + ambassador car) - C Income during the check period 28,85,943.00 D Expenditure during the check period 33,30,145.00 E Acuired asset during the check period (B-A) 14,68,303.00 Disproportionate Asset – E+D-C **19,12,505.00** (14,68,303.00+33,30,145.00-28,85,943) 6. The learned counsel for the petitioner ``` CRL.MC NO. 2019 OF 2020 ``` ..4.. challenged the FIR and the final report mainly on the following grounds:- - (i) The calculation arrived at by the prosecution is mala fide as it suppressed true materials. - (ii) The process of assessment to determine the age of gold ornaments so as to include the same in the check period has no scientific basis. - (iii) The value of the building allegedly constructed by the wife of the petitioner has been wrongly assessed. - (iv) The assets of the wife of the petitioner and other members of their extended family were not expected to be included as income - of the petitioner as his wife and other members of the family had independent income during the check period. - (v) The investigating agency willfully omitted ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [20 x 8] intentionally omitted <==** to include some major assets legally acquired by the petitioner and his family during the relevant period. 7. The learned counsel for the petitioner has taken me to the various documents relied by the prosecution to contend that the charge levelled against the petitioner is prima facie groundless. The learned counsel contended that the materials relied on by the prosecution do not disclose the offence as alleged. 8. The learned counsel for the petitioner, relying on Annexure – A12 statement of account in respect of the bank account maintained in the name of the petitioner and his mother, contended that the finding of the Investigating agency that the opening balance as on 01.01.2006 is nil, is unfounded. The learned counsel also challenged the veracity of the method adopted by the Investigating Officer in assessing the ‘kitchen and living expenses’. The learned counsel submitted that the conclusion of the investigating agency that 1/3 of the ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** gross salary of the petitioner would be kitchen and living expenses has no sound rationale **.** The learned counsel further contended that the investigating agency ought to have taken the gross salary of the petitioner instead of net salary to account the legal income acquired by the petitioner. The learned counsel for the petitioner relied on **D.S.P., Chennai v. K. Inbasagaran** [AIR 2006 SC 552] to contend that the investigating agency has gone wrong in treating the income and assets of the wife of the petitioner as the income of the petitioner even though those assets are in the exclusive domain and ownership of his wife. 9. The learned Special Government Pleader contended that the investigating agency has applied a methodology settled by judicial precedents to enter into the conclusion that the petitioner had amassed wealth disproportionate to his known sources of income. 10. The learned Special Government Pleader contended that non-consideration of wife’s established ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [20 x 8] intentionally omitted <==** income is a matter of evidence. The learned Special Government Pleader relied on **Sajjan Kumar v. Central Bureau of Investigation** [(2010) 9 SCC 368], **State through Central Bureau of Investigation v. Dr Anup Kumar Srivastava** [AIR 2017 SCC 3698], **Amit Kapoor v. Ramesh Chander and another** [(2012) 9 SCC 460], **State of Madhya Pradesh v. Virender Kumar Tripathi** [(2009) 15 SCC 533] to contend that at the stage of framing charge or while considering a petition filed under Section 482 of the Cr.PC seeking to quash the charges, the Court is required to consider the records of the case and documents to satisfy that there is ground for proceeding against the accused. At this stage, the Court is expected only to examine the materials with a view to be satisfied that a prima facie commission of offence alleged has been made out against the accused. 11. I have gone through the FIR and the final report submitted by the VACB against the petitioner. The investigating agency, relying on various documents and ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** statements of witnesses, arrived at the following conclusion:- At the beginning of the check period the petitioner and his family had an income of Rs.23,300/-, an Ambassador car, two scooters and 451.67 gms of gold ornaments and 8.09 Ares of land. The petitioner and his family acquired assets worth Rs.14,91,603/- + 488.34 grams of gold ornaments at the end of the check period. The income of the petitioner during the check period was Rs.28,85,943/- and the expenditure being Rs.33,30,145/-. The petitioner and his family had amassed assets worth Rs.19,12,505/disproportionate to the known sources of income during the check period. 12. On a perusal of the various documents relied on by the investigating agency, prima facie, there are materials to proceed against him and the challenges on the various findings of the investigating agency could be ``` CRL.MC NO. 2019 OF 2020 ``` ..9.. addressed only at the time of trial. In **Amit Kapoor v. Ramesh Chander and another** (Supra), the Apex Court held that where the factual foundation for an offence has been laid down, the Courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 13. In **Md. Allauddin Khan v. State of Bihar and others** [AIR 2019 SC 1910], the Apex Court held that the High Court has no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, because appreciation of evidence is essentially an issue to be considered during the trial, when the entire evidence is adduced by the parties. In **State through Central Bureau of Investigation v. Dr.** **Anup Kumar Srivastava** (Supra), the Apex Court held that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** charge framed against him the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. In **Sajjan Kumar v. Central Bureau of Investigation** (Supra), the Apex Court held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Court will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. The Apex Court further held that where the materials paced before the Court disclose grave suspicion against the accused which has not been properly explained, the Court be fully justified in framing a charge and proceeding with the trial. 14. In the light of the discussions made above, I am of the view that this is not a fit case to quash the proceedings at this stage. However, I clarify that de hors ``` CRL.MC NO. 2019 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** these observations, the trial Court is absolutely free to analyse, appreciate, evaluate and arrive at a proper conclusion based on the evidence and materials placed by the prosecution as well as the defence during the trial. The trial Court shall complete the trial and dispose of the case within a period of six months from the date of production of a certified copy of this judgment. The Crl.M.C. stands dismissed. Sd/- **K. BABU, JUDGE** kkj ``` CRL.MC NO. 2019 OF 2020 ``` ..12.. ## **`APPENDIX OF CRL.MC 2019/2020`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`ANNEXURE-A1`|`TRUE COPY OF THE STATEMENT RECORDED`| ||`BY THE 2ND RESPONDENT DATED`| ||`22.03.2013`| |`ANNEXURE-A2`|`TRUE COPY OF THE NOTICE DATED`| ||`30.04.2013 ISSUED BY THE 2ND`| ||`RESPONDENT TO THE PETITIONER`| |`ANNEXURE-A3`|`TRUE COPY OF THE RELEVANT PAGES OF`| ||`PROPERTY STATEMENTS FOR THE PERIOD`| ||`FROM 01.01.2000 TO 28.02.2013`| |`ANNEXURE-A4`|`TRUE COPY OF THE FIR IN VA 04/2014/`| ||`SCE/VACB ERNAKULAM`| |`ANNEXURE-A5`|`TRUE COPY OF THE SEARCH MAHASER DATED`| ||`13.08.2014 IN RESPECT OF THE OFFICE`| ||`OF THE PETITIONER`| |`ANNEXURE-A6`|`TRUE COPY OF THE SEARCH MAHASER DATED`| ||`13.08.2014 IN RESPECT OF THE HOUSE OF`| ||`THE PETITIONER`| |`ANNEXURE-A7`|`TRUE COPY OF THE FINAL REPORT DATED`| ||`06.07.2018 IN VC 04/2014/SCE/VACB`| ||`ERNAKULAM`| |`ANNEXURE-A8`|`TRUE COPY OF THE INFORMATION RECEIVED`| ||`BY THE WIFE OF THE PETITIONER UNDER`| ||`THE RTO ACT FORM DTO THRISSUR`| |`ANNEXURE-A9`|`TRUE COPY OF THE RECEIPT DATED`| ||`23.03.2013 FOR PAYMENT OF AMOUNT`| |`ANNEXURE-A10`|`TRUE COPY OF THE SALE DEED`| ||`NO.7462/2007 OF AYANTHOLE SRO`| |`ANNEXURE-A11`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.5528/2012 OF AYYANTHOLE SRO`| |`ANNEXURE-A12`|`TRUE COPY OF THE STATEMENT OF BANK`| ||`ACOUNT NO 0721101055792`| |`ANNEXURE-A13`|`TRUE COPY OF THE STATEMENT OF BANK`| ||`ACOUNT NO.0720101065307`|