Mahimkutty E A v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 12[TH] DAY OF JULY 2024 / 21ST ASHADHA, 1946** **CRL.MC NO. 3685 OF 2024** **CRIME NO.156/CR/KTM/06/2014 OF CBCID, PATHANAMTHITTA,** **Pathanamthitta** **AGAINST CC NO.65 OF 2016 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM** **PETITIONER/ACCUSED NO.5:** **MAHIMKUTTY E A AGED 50 YEARS S/O ALI E K, INJAKUDY HOUSE, KANNANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683553** **BY ADVS. SHIRAZ ABDULLA M.S. K.ABDUL NASSAR VISHNU DEV C.S.** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **BY ADV. REKHA S. - SENIOR PUBLIC PROSECUTOR ADV. RAJESH A.- SPECIAL PUBLIC PROSECUTOR(VIGILANCE)** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **==> picture [58 x 11] intentionally omitted <==** ## **O R D E R** _**Dated this the 12[th] day of July, 2024**_ **The 5[th] accused in F.I.R.No.156/CR/KTM/06 of the C.B.C.I.D., Pathanamthitta, which is pending consideration of the Enquiry Commissioner and Special Judge Court, Thiruvananthapuram as C.C.No.65/2016, is the petitioner herein. Petitioner seeks to quash Annexure-D Court Charge, on the premise that, there is no specific allegation constituting an offence as against the petitioner/A5 and that, there exists no material** _**prima facie**_ **to implicate the petitioner, even in respect of the minimal allegations leveled against him.** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **2. Heard Sri.Shiraz Abdulla M.S., learned counsel for the petitioner, Smt.Rekha S., learned Senior Public Prosecutor on behalf of the respondent and Sri.Rajesh A., learned Special Public Prosecutor (Vigilance).** **3. This Court will straight away refer to the Court Charge, especially the charge which has been framed under the heading 'Firstly', where alone the name of the petitioner/A5 reflects. The relevant portion of Annexure-D Court Charge is extracted herebelow:** ## **“Firstly:-** **That witness no:1 (Smt.Annamma, W/o.K.T.Thomas, Cheenikunnel Veedu, Kuroppada Muri, Pampadi Village, Kottayam District) handed over her nativity certificate and property tax receipt to first among you to obtain passport, and that in furtherance of a criminal conspiracy, with common intention, fifth among you introduced, accused no:1 to A2** **Crl.M.C.No. 3685 of 2024** ..4.. **to A4, that in pursuance of the conspiracy, A2 obtained those documents from A1, that A7, village officer abused his official position and issued false nativity certificates in favour of A2, that A5 gave all assistance to A2 to obtain sales tax registration from Pathanamthitta sales tax office, that A6 impersonated as witness No.1 (Smt.Annamma) and stood as surety for obtaining sales tax registration, A2 thus fraudulently obtained sales tax registration No.14168945/00-01 (LST) for 'M.S.Classic Veneers Traders' in the name of A2 and that A3 and A4 exported veneer in 2000 and 2001 to other states using this false sales tax registration and managed to evade Rs.53,12,105/- as tax and thus dishonestly and fraudulently misappropriated Rs.53,12,105/and obtained pecuniary advantage of the said sum and thereby committed the offence of criminal misconduct punishable u/s.13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988 r/w 120 B of IPC and within my cognizance.”** _**(underlined by me for emphasis)**_ **4. It could be seen from the above that, the allegations which are leveled against the petitioner/A5 is that, he introduced the 1[st]** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **accused to accused nos. 2 to 4, in furtherance of a criminal conspiracy and that A5 rendered all assistance to A2 for obtaining sales tax registration from Pathanamthitta. Barring the two allegations referred above, there is no reference whatsoever, as against the petitioner/A5 in the Court Charge.** **5. This Court has also perused Annexure-A Final Report, wherein also, the allegation against the petitioner/A5 is precisely what has been referred to above in Annexure-D Court Charge.** **6. As regards the first allegation, that the petitioner/A5 had introduced A1 to accused nos. 2 to 4, this Court is of the opinion that, the conduct alleged, by itself, will not constitute any offence, unless accompanied and backed by the allegation of criminal conspiracy. This Court specifically ascertained from the learned Public** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **Prosecutor as to whether there exists any material in support of the conspiracy alleged, to which the answer was in the negative. Learned Public Prosecutor would submit that, she had taken instructions from the Investigating Officer, as well, in this regard. In such circumstances, this Court is of the opinion that, prosecuting the petitioner/A5 on the strength of such a charge, unsupported by any material, atleast indicating a conspiracy, is not going to create any result in favour of the prosecution.** **7. The second allegation as against the petitioner/A5 is general and vague to the effect that the petitioner/A5 had rendered necessary assistance to obtain the sales tax registration for the 2[nd] accused. Here again, there exists no material on record to support the said allegation, except a bald assertion of the petitioner rendering assistance for obtaining sales tax** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **registration for the 2[nd] accused. Learned Public Prosecutor would submit that, the solitary evidence in this regard, is with respect to the presence of the petitioner/A5 in the Sales Tax Office, as spoken to by CW-7, a U.D.Clerk attached to the Sales Tax office and CW-4, a tax consultant. Here again, this Court cannot find a** _**prima facie**_ **case to make out an offence by the mere presence of the petitioner/A5 in the Sales Tax office, unsupported by any further material/evidence.** **8. In this regard, this Court should take into account a subtle distinction in cases where a Final Report, or for that matter, a Court Charge is sought to be quashed. In the case of quashment of an F.I.R., what is to be looked into is the sufficiency of the allegations in the F.I.R. taken on its face value, to ascertain whether the offences alleged are made out. However, once it** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **came to a Final Report or a Court Charge, the investigation is complete and all the material garnered in the investigation has been made available to the court. While it is a forbidden province to ascertain the probative value of the material/evidence collected in the context proving** **the offences alleged, it is well within the limits of law to ascertain whether the material/evidence in support of the prosecution version, taken on its face value, would establish the offences alleged or not. Thus, in cases where the investigation has progressed to the stage of filing a Final Report or to the stage of framing a Court Charge, it is not enough to be satisfied that the allegations in the final report would make out the offences alleged. Instead, the material/evidence collected are also liable to be considered in its face value, pre-supposing that such evidence will be proved/established, to ascertain whether the offences alleged are made** **Crl.M.C.No. 3685 of 2024** **==> picture [37 x 9] intentionally omitted <==** **out. Thus, even in the midst of an allegations constituting an offence, if no material/evidence, whatsoever, is forthcoming in support of such allegation constituting offence, interference under Section 482 of the Cr.P.C. to quash the Final Report or the Court Charge will be justified.** **9. This Court has also taken into account the fact that, the charge against the 3[rd] accused had already been quashed by Annexure-E judgment dated 09.11.2023, by a learned Single Judge of this Court.** **10. As taken stock of by the learned Single Judge in Annexure-E judgment, the Hon'ble Supreme Court in** _**State of Haryana and Others v. Bhajan Lal and others**_ **[1992 Supp (1) SCC 335] held that, where the uncontroverted allegations in the complaint and the evidence collected in support of the same,** **Crl.M.C.No. 3685 of 2024** **==> picture [45 x 9] intentionally omitted <==** **do not disclose the commission of any offence or make out a case against the accused, the constitutional court is well within its liberty to quash the proceedings. In the instant case, this Court notice that, the investigation is complete and Final Report filed. Any and every material in the hands of the investigating agency has been placed for perusal of the Court. Even after progressing upto that stage, there is no evidence/material, whatsoever, surfacing as against the petitioner/A5, so as to implicate him to the offences alleged.** **11. This Court has also considered the question as to whether the Court Charge as against a particular accused can be quashed. Primarily, this Court finds adequate power under Section 482 of the Code of Criminal Procedure, to pass any order to prevent abuse of the process of the Court; or otherwise to secure the ends of justice. It** **Crl.M.C.No. 3685 of 2024** ..11.. **appears that, both limbs of Section 482 are attracted in the instant facts. In the present state of affairs where the charges leveled are vague, unsupported by any material, whatsoever, the continuance of the prosecution is a farce, spoiling the judicial time of the Court, besides being a torture to the person arraigned as an accused. That apart, an order quashing the Court Charge as against the petitioner, is also required in the ends of justice for the reasons already adverted to above. The question as to whether a Court Charge can be quashed has been considered by the Hon'ble Supreme Court in** _**Amit Kapoor v. Ramesh Chander and another**_ **[(2012) 9 SCC 460] and it was held that there are no limits of the powers of the Court under Section 482, but its exercise should be with circumspection, confined to rare cases. It was also held that Court can interfere under Section 482, if the uncontroverted allegations, as made out from the records and the documents** **Crl.M.C.No. 3685 of 2024** **==> picture [45 x 9] intentionally omitted <==** **submitted therewith, would not** _**prima facie**_ **establish the offences alleged.** **12. Inasmuch as, the above stated parameters are satisfied in the given facts, which would justify interference under Section 482 of the Code, this Court is of the opinion that, no fetters can be imposed on the Court, for the reason that what has been sought to be quashed is a Court Charge.** **13. In the circumstances, Annexure-D Court Charge and all further proceedings against the petitioner/A5 will stand quashed.** **The Criminal Miscellaneous Case is allowed as** **above.** **Sd/JUDGE** **C. JAYACHANDRAN** **TR** **Crl.M.C.No. 3685 of 2024** ..13.. ## **APPENDIX OF CRL.MC 3685/2024** ## **PETITIONER ANNEXURES** |**Annexure A**|**A TRUE COPY OF THE FINAL REPORT FILED**| |---|---| ||**IN FIR NO. 156/CR/KTM/06 OF CBCID**| ||**PATHANAMTHITTA BEFORE THE ENQUIRY**| ||**COMMISSIONER AND SPECIAL JUDGE COURT,**| ||**KOTTAYAM NOW PENDING AS CC NO.65/2016**| ||**BEFORE THE ENQUIRY COMMISSIONER AND**| ||**SPECIAL JUDGE COURT, THIRUVANANTHAPURAM**| ||**DTD 16-10-2014**| |**Annexure B**|**A CERTIFIED COPY OF THE STATEMENT OF**| ||**WITNESSES**<br>**FILED**<br>**IN**<br>**FIR**<br>**NO.**| ||**156/CR/KTM/06 OF CBCID PATHANAMTHITTA**| ||**IN CC NO. 65/2016 BEFORE THE ENQUIRY**| ||**COMMISSIONER AND SPECIAL JUDGE COURT,**| ||**THIRUVANANTHAPURAM OBTAINED ON 25-11-**| ||**2023**| |**Annexure C**|**A TRUE COPY OF THE FORENSIC SCIENCE**| ||**LABORATORY REPORT DTD 11-12-2012 FILED**| ||**IN FIR NO. 156/CR/KTM/06 OF CBCID**| ||**PATHANAMTHITTA NOW PENDING AS CC NO.**| ||**65/2016 BEFORE THE ENQUIRY COMMISSIONER**| ||**AND**<br>**SPECIAL**<br>**JUDGE**<br>**COURT,**| ||**THIRUVANANTHAPURAM**| |**Annexure D**|**A TRUE COPY OF THE CHARGE IN CC NO.**| ||**65/2016, BEFORE THE COURT OF THE**| ||**ENQUIRY COMMISSIONER AND SPECIAL JUDGE,**| ||**THIRUVANANTHAPURAM DTD 14-11-2022**| |**Annexure E**|**A TRUE COPY OF CRL. MC NO. 5962/2022**| ||**DTD 09-11-2023**|