K. Venugopal v. State of Kerala and Vigilance & Anti Corruption Bureau, Special Cell, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 CRL.MC NO. 4350 OF 2021** **AGAINST F.I.R.NO.VC.1/2017/SCE OF THE VIGILANCE AND ANTICORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM** ## **PETITIONER/ACCUSED:** K.VENUGOPAL AGED 60 YEARS (WRONGLY SHOWN AS VENUGOPALAN IN THE F.I.R.), S/O. KRISHNA PILLA, DEVADATHAM HOUSE, MANNOPPALLY NAGAR, COCHIN UNIVERSITY P.O., THRIKKAKARA, ERNAKULAM DISTRICT,PIN-682 022 BY ADV M.REVIKRISHNAN ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 2 VIGILANCE & ANTI CORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM, KOCHI, PIN-682 017 BY SMT.REKHA.S SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON 26.10.2021 PASSED THE FOLLOWING: Crl.M.C.No.4350/2021 2 ## **R.NARAYANA PISHARADI, J** ## ************************** Crl.M.C.No.4350 of 2021 ------------------------------------Dated this the 26[th] day of October. 2021 ------------------------------------------- ## **O R D E R** The petitioner is the accused in the case registered as V.C No.1/2017/SCE by the Special Cell of the Vigilance and AntiCorruption Bureau (VACB), Ernakulam under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). 2. The petitioner was Member (Accounts) of the Kerala Value Added Tax Appellate Tribunal. He had entered into service on 02.01.1989. 3. The allegation against the petitioner in the above case is stated in Annexure-A FIR as follows: _“Sri.Venugopalan, while working as a Government servant during the period from_ Crl.M.C.No.4350/2021 3 _01.01.2004 to 31.10.2016, is found in possession of pecuniary resources and properties disproportionate to his known sources of income. Total assets acquired by the Suspect Officer during the check period is Rs.1,77,11,603/-, total expenditure incurred is Rs.1,27,34,977/- and the total income calculated is Rs.2,05,29,616/-; thereby the disproportionate asset in the possession of the Suspect Officer at the end of the check period is found as Rs.99,16,964/-, which is 48.3% of his total income, which is considered disproportionate to the known sources of his income.”_ 4. While the investigation in the case was going on, the petitioner filed Crl.M.C.No.2223/2021 before this Court praying that a direction may be issued to the investigating officer to consider and examine the documents in the possession of the petitioner. As per Annexure-E order dated 16.04.2021, this Court disposed of Crl.M.C.No.2223/2021. Annexure-E order reads as follows: _“The learned counsel for the petitioner vehemently submits that the Investigating Officer is proposing to file final report without_ Crl.M.C.No.4350/2021 4 _considering the relevant documents and materials submitted by the petitioner before the Investigating Officer in V.C.1/2017/SCE of the Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam. The learned Public Prosecutor, on instructions, submits that the Investigating Officer has no objection in considering the materials submitted by the petitioner, which, in fact is, according to the Public Prosecutor, an essential requirement._ _The above submission of the learned Public Prosecutor is recorded. In the event of any further explanation or clarification required, the petitioner shall submit the same to the Investigating Officer as and when sought for.”_ ## 5. The present application is filed by the petitioner under ## Section 482 of the Code of Criminal Procedure, 1973 (for short ## 'the Code') seeking the following relief: _“For these and other grounds which may be urged at the time of hearing it is most humbly prayed that this Honourable Court may be pleased to allow this Criminal Miscellaneous Case, direct the 2[nd] respondent to examine all relevant documents and materials thus far submitted by the petitioner before the_ Crl.M.C.No.4350/2021 5 _Investigator in V.C.1/2017/SCE of the Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam, thoroughly and meticulously with an opportunity of being heard to the petitioner and to produce further documents and materials on demand by the investigating officer, if necessary, so as to secure the ends of justice.”_ 6. The grievance of the petitioner is that, inspite of Annexure-E order passed by this Court, the investigating officer has not so far sought any explanation or clarification from him in the matter. The petitioner states that, as per Annexure-F letter dated 28.04.2021, he had forwarded documents in six volumes to the investigating officer, but those documents have not been considered and no clarification or explanation has been sought from him by the investigating officer. 7. The investigating officer has filed a statement/report. In that statement, it is mentioned that, after receiving Annexure-E order, the documents produced by the petitioner were considered by the investigating officer. It is stated that the wife of the accused is a government employee, working as Crl.M.C.No.4350/2021 6 Professor in the School of Engineering, CUSAT at Kalamassery and therefore, the value of the assets owned by her have been separately calculated. It is further stated that, the entire income claimed by the accused, which are supported by documents, has been taken into account. 8. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 9. Learned counsel for the petitioner would contend that, the income and assets of the wife of the petitioner have been separately calculated by the investigating officer and it is a wrong method of calculation to ascertain whether the petitioner is in possession of assets disproportionate to his income. Learned counsel further contended that the method of calculation adopted by the investigating officer is against the specific provision contained in Section 147 of the Vigilance Manual. It is further contended by the learned counsel for the petitioner that the calculation statement contained in the report filed by the investigating officer would show lack of application of mind by the Crl.M.C.No.4350/2021 7 investigating officer. 10. _Per contra,_ learned Public Prosecutor has contended that, in compliance with Annexure-E order passed by this Court, the investigating officer has considered and taken into account all documents produced by the petitioner. 11. As per the Explanation to Section 13(1)(e) of the Act, "known sources of income" mean income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The expression "known sources of income'' has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused (See **State of Madhya Pradesh v. Awadh Kishore Gupta : AIR 2004 SC 517** ). 12. There is no merit in the contention of the petitioner that, before filing charge-sheet, he has got a right to give clarification or explanation before the investigating officer Crl.M.C.No.4350/2021 8 ## regarding the alleged disproportionate assets. ## 13. In **K.Veeraswami v. Union of India : (1991) 3 SCC** ## **655** , it has been held by the Constitution Bench as follows: _“But since the legality of the charge sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression "for which he cannot satisfactorily account" used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the investigating officer to explain the alleged disproportionality between assets and the known sources of income. The investigating officer is required to consider his explanation and the charge sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he_ Crl.M.C.No.4350/2021 9 _may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing - to co operate. But to state that after collection of all material the investigating officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the investigating officer to the position of an enquiry officer or a judge. The investigating officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge sheet.”_ (emphasis supplied) 14. Very recently, in **C.B.I v. T.H. Vijayalakshmi** ( **2021 SCC** **OnLine SC 923** ), the Apex Court has extracted the above passage in **K.Veeraswami** (supra) and held that, an accused public Crl.M.C.No.4350/2021 10 servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the investigating officer before the filing of a charge sheet. The Supreme Court has held as follows: _“Therefore, since an accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a Preliminary Enquiry mandatory”._ (emphasis supplied) 15. The fact that the accused has no right to seek any chance or opportunity, before the filing of the charge sheet, to give explanation to the investigating officer regarding the alleged disproportionate assets, does not mean that the investigating officer is precluded from seeking such explanation, if found necessary. In this context, it would be advantageous to refer to the observation made in **T.H. Vijayalakshmi** (supra) as follows: _“The investigation is stated to be at an advanced stage and is likely to conclude within a period of_ Crl.M.C.No.4350/2021 11 _two to three months. At the same time, the Court has been assured by the ASG on the instructions of the Investigating Officer that before concluding the investigation, the first and second respondents will be called in order to enable them to tender their explanation in respect of the heads of disproportionate assets referred to in the FIR.”_ 16. In the present case, no question of issuing any direction to the investigating officer to seek explanation or clarification from the petitioner regarding the alleged disproportionate assets arises. Annexure-E order passed by this Court has already taken care of that prayer made by the petitioner. If the petitioner has got any grievance that the investigating officer has not properly complied with the directions given by this Court in Annexure-E order, his remedy is not to file another petition seeking the same relief. 17. Learned counsel for the petitioner would contend that the method of calculation adopted by the investigating officer is wrong and incorrect. In a petition filed under Section 482 of the Code, this Court is not expected to conduct a mini trial and verify Crl.M.C.No.4350/2021 12 the correctness of the calculations made by the investigating officer. 18. No doubt, investigation has to be fair and impartial. But, it does not mean that the investigation shall be done from the point of view of the accused. The High Court cannot interfere with the investigation by directing the police to investigate the case from a particular angle (See **Venkatasubramaniam v. M.K.Mohan Krishnamachari : (2009) 10 SCC 488** ). 19. In **State of Bihar v. P.P.Sharma : AIR 1991 SC 1260** , the Apex Court has held as follows: _“As regards the investigating officer, he has wide powers under the Criminal Procedure Code. He has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because the investigating officer, while acting bona fide, rules out certain documents as irrelevant, it is no ground to assume that he acted mala fide. The police report submitted by the investigating officer has to pass through the_ Crl.M.C.No.4350/2021 13 _judicial scrutiny of a Magistrate, at the stage of taking cognizance. Although the accused person has no right to be heard at that stage but in case the accused person has any grouse against the investigating officer or with the method of investigation he can bring to the notice of the Magistrate his grievances which can be looked into by the Magistrate. When the police report under Section 173, Cr.P.C. has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the investigating officer.”_ (emphasis supplied) It has been further held as follows: _“Full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, viz., the proof of the commission of the crime. Often individual liberty of a witness or an accused person is involved and inconvenience is inescapable and unavoidable. ....... It is undoubted that no one should unnecessarily be harassed or face an ordeal of criminal trial unless sufficient materials are collected during the investigation disclosing the crime committed. The_ Crl.M.C.No.4350/2021 14 _Investigating Officer is not to act on a pre-conceived idea of guilt of the accused. The Investigating Officer is expected to gather the entire material, so that the truth or falsehood of the accusation may be found by the Court at the trial. The Investigating Officer is expected to investigate justly and fairly, but the evidence collected at the investigation is not be all and end all. At the stage of trial the opportunity is wide open to the accused to cross examine the witness and if he deems necessary to adduce the defence evidence and to test the veracity of the ” evidence collected during the investigation._ (emphasis supplied) 20. The accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code, or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be (See **Union of India v. W.N.** Crl.M.C.No.4350/2021 15 ## **Chadha : AIR 1993 SC 1082** ). 21. Non-exclusion or exclusion of income of the relatives of the accused is a matter of evidence (See **State of M.P. v. Virender Kumar Triparthi : (2009) 15 SCC 533** ). 22. If final report is filed against the petitioner on the basis of wrong or incorrect calculation of disproportionate assets, the petitioner would get opportunity to challenge the final report and to defend the allegations raised against him, at the appropriate stage. 23. The discussion above leads to the conclusion that the petitioner is not entitled to get any relief in this petition. 24. Consequently, the petition is dismissed. Nothing stated in this order shall preclude the petitioner from challenging the final report, if filed against him, at the appropriate stage. (sd/-) **R.NARAYANA PISHARADI, JUDGE** lsn/jsr Crl.M.C.No.4350/2021 16 ## **APPENDIX OF CRL.MC 4350/2021** ## PETITIONER'S ANNEXURES |Annexure A|TRUE<br>COPY<br>OF<br>THE<br>F.I.R.<br>IN| |---|---| ||V.C.1/2017/SCE OF VACB,SPECIAL CELL,| ||ERNAKULAM| |Annexure B|TRUE COPY OF THE LETTER/INTIMATION| ||ISSUED BY THE INSPECTOR OF POLICE, VACB,| ||SPECIAL CELL , ERNAKULAM DATED| ||17.11.2020 TO THE PETITIONER THROUGH HIS| ||THEN OFFICIAL SUPERIOR| |Annexure C|TRUE COPY OF THE COVERING LETTER DATED| ||22.12.2020 ISSUED BY THE PETITIONER TO| ||THE INSPECTOR, VACB , SPECIAL CELL,| ||ERNAKULAM WITH DETAILS REGARDING THE| ||MATERIAL/DOCUMENTS SUBMITTED IN SUPPORT| ||OF HIS PLEA TO ACCOUNT FOR THE INCOME| ||DURING THE CHECK PERIOD| |Annexure D|TRUE COPY OF THE ACKNOWLEDGMENT ISSUED| ||BY THE INSPECTOR VACB, SPECIAL CELL,| ||ERNAKULAM DATED 23.12.2020| |Annexure E|TRUE COPY OF THE ORDER DATED 16.04.2021| ||IN CRL MC NO.2223 OF 2021 PASSED BY THIS| ||HONOURABLE COURT| |Annexure F|TRUE COPY OF THE COVERING LETTER DATED| ||28.094.2021 SUBMITTED BY THE PETITIONER| ||TO THE SUPERINTENDENT OF POLICE,| ||VIGILANCE AND ANTI-CORRUPTION BUREAU,| ||SPECIAL CELL, ERNAKULAM| |Annexure G|TRUE<br>COPY<br>OF<br>THE<br>SUMMARY<br>OF| ||INCOME/RECEIPTS FOR THE PERIOD FROM| ||01.04.2003 TO 20.01.2017 PREPARED BY THE| ||PETITIONER| Crl.M.C.No.4350/2021 17 Annexure H TRUE COPY OF STATEMENT OF RECEIPTS , EXPENDITURE AND ACQUISITION OF ASSETS DURING THE PERIOD FROM 01.04.2003 TO 20.01.2017 PREPARED BY THE PETITIONER Annexure I TRUE COPY OF THE ORDER DATED 25.07.2019 IN CRL MC NO.2160 OF 2019 PASSED BY THIS HONOURABLE COURT RESPONDENTS' NIL ANNEXURES TRUE COPY P.S TO JUDGE