Manoharan Thampi B v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 19[TH] DAY OF APRIL 2024 / 30TH CHAITHRA, 1946 CRL.MC NO. 6412 OF 2023 ``` ``` FIR NO.2/2023 OF VACB, SOUTHERN RANGE, THIRUVANANTHAPURAM ``` ``` PETITIONER/ACCUSED NO.1: ``` ``` MANOHARAN THAMPI B AGED 55 YEARS DEPUTY TAHSILDAR (UNDER SUSPENSION), S/O M. K. BASKARAN NAIR, RESIDING AT TC- NO.3020(2) AMOGH, POWDIKONAM P.O., THIRUVANANTHAPURAM, PIN – 695587. ``` ``` BY ADVS. JOHNSON GOMEZ SANJAY JOHNSON JOHN GOMEZ ANN MARIA SEBASTIAN ARUN JOHNY DEEBU R. ABIN JACOB MATHEW ``` ## **`RESPONDENT/PROSECUTION:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 THROUGH THE SUPERINTENDENT OF POLICE, VIGILANCE & ANTI-CORRUPTION BUREAU, SOUTHERN RANGE, THIRUVANANTHAPURAM. ``` ``` BY SRI.A.RAJESH (SPL.GOVT.PLEADER (VIGILANCE) ``` ``` SMT.REKHA S (SR.PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 19.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6412 of 2023 2 ## **ORDER** The petitioner was the Village Officer of Kadakampally Village in Thiruvananthapuram District. He seeks to quash FIR No.2 of 2023 of the VACB, Southern Range, Thiruvananthapuram. He faces offences punishable under Section 13(2) r/w Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act and Sections 120B, 465, 468 & 471 of the Indian Penal Code. ## 2. The prosecution case is as follows:- The petitioner (Accused No.1), on 09.5.2016, while serving as the Village Officer, Kadakampally Village, irregularly effected mutation in respect of 10 cents of land in Survey No. 2623/101/C/1/136 in favour of Smt.Valsamma (Accused No.3) though entry regarding the same was not in the village records. The petitioner also fabricated mutation in respect of 5 cents of property in Thandaper No.2593 in her favour. He also added 6 cents of Government land in the name of Smt.Valsamma. The petitioner and the other accused conspired together and committed forgery in the village records for the purpose of creation of subsequent sale deeds in respect of the property using the forged documents as Crl.M.C.No.6412 of 2023 3 genuine. The petitioner, being a public servant, committed criminal misconduct dishonestly, facilitated conversion of valuable property in the name of accused No.3 by corrupt and illegal means. 3. The Superintendent of Police, VACB, Southern Range, Thiruvananthapuram, based on a complaint, directed the Vigilance team to conduct a surprise check at Kadakampally Village Office on 9.11.2021. In the surprise check, the Vigilance found that 4.05 ares of land was seen in the possession of Smt.Valsamma (accused No.3) as per PV No.354/16 and another 2.02 ares of land as per Thandaper No.2593. The property was later transferred to many persons. The Government accorded sanction to conduct a preliminary enquiry against the petitioner who was the then Village Officer of Kadakampally Village. The Vigilance conducted a preliminary enquiry and found certain derelictions in respect of mutation of the land under Thandaper No.48916 and recommended departmental action against the petitioner. Thereafter, Smt.R.Rejani approached this Court by filing W.P.(C)No.18740 of 2021 to direct the District Collector, Thiruvananthapuram to take action in respect of the alleged irregularities in the mutation effected in respect of the property in favour of Smt.Valsamma and others. This Court directed the District Collector to consider and dispose of the application submitted by Crl.M.C.No.6412 of 2023 4 Smt.Rejani. The Vigilance thereafter suo motu registered Annexure A1 FIR against the petitioner and three others. 4. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Vigilance). 5. The crux of the allegations in the FIR is as follows:- a) Accused No.3 Smt.Valsamma had no title and possession over 15 cents of land in Survey No.2623/101/C-7. b) The petitioner has irregularly mutated 10 cents of land in Sy.No.2623/101/C/1/136 comprised in T.P.No.5364 in the name of one Sreedharan in favour of Smt.Valsamma as per P.V.No.345/16 dated 9.5.2016 by allotting Thandaper No.48916. c) The petitioner created a fabricated entry in respect of 5 cents of land in Thandaper No.2593 in favour of Smt.Valsamma. d) The petitioner facilitated the other accused to convey 6 cents of Government _purampokku_ along with the above said 15 cents of land. e) The petitioner and the other accused hatched a criminal conspiracy to irregularly effect mutation in respect of the above said property by fabricating revenue records. f) The petitioner willfully omitted to record the balance land in Thandaper No.48916 while effecting mutation as per PV application Crl.M.C.No.6412 of 2023 5 Nos.458/16 and 459/16. 6. The learned counsel for the petitioner submitted that Annexure A1 FIR does not disclose any offences. The learned counsel also submitted that the factual findings in the FIR are not based on any revenue records and are contrary to the findings in the preliminary enquiry done by the Vigilance Department itself. The learned counsel further submitted that the petitioner was not serving as the Village Officer of Kadakampally Village on the date of creation of Annexure A8 settlement deed No.2631/1/2017 executed by accused No.3 in favour of accused No.2. 7. The learned counsel for the petitioner relied on copy of sale deed No.178/1983 executed by one Smt.Varangi Amma and others (Annexure 3), certified copy of the sale deed No.1494/1/2016 executed by accused No.3 in favour of one Benjamin (Annexure A4), true copy of the sale deed No.1495/16 executed by Smt.Valsamma (accused No.3) in favour of Mathews (Annexure A5), true copy of the extract of Thandaper No.49099 (Annexure A6), true copy of the extract of Thandaper No.49100 of Kadakampally Village (Annexure A7), true copy of the settlement deed No.2631/2017 executed by accused No.3 (Annexure A8), extract of Thandaper No.48916 of Kadakampally Village and true copies of the relevant pages of the digital data collected from Crl.M.C.No.6412 of 2023 6 Kerala Land Information Mission (Annexure A12), in support of his contention. 8. Sri.A.Rajesh, the learned Special Government Pleader (Vigilance) made the following submissions:- The FIR contains specific allegations against the petitioner. The learned Special Government Pleader submitted that when the allegations in the FIR make out cognizable offences the exercise of the power under Section 482 Cr.P.C. to quash the criminal proceedings is against the settled law. The learned Special Government Pleader relied on **Neeharika Infrastructure Pvt. Ltd. (M/s.)** v. **State of Maharashtra and Others** (2021 (3) KHC 25), **State of Chattisgarh** v. **Aman Kumar Singh** (2023 KHC 6191) and **Union of India and Others** v. **B.R.Bajaj and Others** (1994 KHC 773) in support of his contentions. 9. On a perusal of the documents referred to above it can be seen that accused No.3 Smt.Valsamma was holding an extent of five cents of land in Thandaper No.2593. She purchased another 10 cents of land in S.No.2623/101/C/136 from the legal heirs of one Sreedharan Pillai who had obtained title over this property from one Sreedharan. The materials would reveal that the application for mutation as per PV.No.345/16 was supported by sale deed No.1936/1964 executed by Crl.M.C.No.6412 of 2023 7 Sreedharan in favour of Sreedharan Pillai and sale deed No.178/1983 executed by the legal heirs of Sreedharan Pillai in favour of Valsamma. It is also evident that T.P.No.5364 was in the name of Sreedharan showing that he was the owner of the 10 cents of land in Sy.No.2623/101/C/1/136. Therefore, the allegation that there is irregularity in the mutation of the property in the name of Smt.Valsamma is baseless. The further allegation of the prosecution is that the petitioner created fabricated documents in respect of 5 cents of land in Thandaper No.2593 in favour of Smt.Valsamma. The petitioner relied on Annexure-A12, a true copy of the relevant pages of the digital data collected from the Kerala Land Information Mission to contend that the Survey Department had digitized TP No.2593 in respect of 5 cents of land owned by Smt.Valsamma. This digital data is available from the Director of Survey and Land Records. Therefore, the allegation of the prosecution that the petitioner fabricated revenue records in respect of 5 cents of land in TP No.2593 in favour of Smt.Valsamma is also unfounded. 10. The prosecution further alleges that the petitioner helped the other accused to convey 6 cents of Government _purampokku_ along with the said 15 cents of land. The documents relied on by the petitioner would show that he had effected mutation of land as per Crl.M.C.No.6412 of 2023 8 document Nos.1494/2016 and 1495/2016 allotting Thandaper Nos.49099 and 49100 respectively. It is also seen that the petitioner served as the Village Officer of Kadakampally from 14.11.2017 to 27.3.2017. But, sale deed No.2631/2017 was executed on 18.09.2017. The PV application was submitted only on 12.12.2017 and mutation was effected on 6.3.2018, much after the transfer of the petitioner from that office. The prosecution also alleges that the petitioner and the other accused conspired together and facilitated irregular mutation in respect of the properties as per PV.No.354/16 and used the same to effect mutation as per PV.Nos.458/16 and 459/16 on 22.6.2016. PV No.354/16 is the application submitted by Smt.Valsamma for mutation of 10 cents of land comprised in TP No.5364 based on document No.178/83 executed by Smt.Varangi Amma and others. The petitioner has allotted TP No.48916 upon mutation of this 10 cents of land. PV application Nos.458/16 and 459/16 were submitted by accused No.2 in respect of 3 cents of land based on document Nos.1494/16 and 1495/16 and based on these documents the petitioner effected mutation and allotted TP Nos.49099 and 49100 to Mr.Benjamin and Mr.Mathew respectively. The subsequent allegation against the petitioner is that he omitted to record balance land in TP No.48916. In the preliminary enquiry the vigilance found that it was only an Crl.M.C.No.6412 of 2023 9 inadvertent omission on the part of the petitioner. 11. I am fully conscious of the principles enunciated by the Supreme Court in the precedents relied on by the learned Special Government Pleader that the power vested in the High Court under Section 482 Cr.P.C. should be used sparingly when the prayer for quashing FIR is made by the accused and that at that stage the Court has to consider whether the allegations in the FIR disclose the commission of the cognizable offence or not. 12. If the High Court is fully satisfied that the materials produced by the accused are such that would lead to the conclusion that his defence is based on sound, reasonable and indubitable facts, or the same would rule out or displace the assertions in the complaint or the materials relied on by the accused would reject and overrule the veracity of the allegations, the judicial conscience of the High Court would persuade to exercise its power under Section 482 of Cr.P.C. and to quash such criminal proceedings to avoid or to prevent the abuse of the process of the Court and secure the ends of justice (vide: **Divya S. S Rose** v. **State of Kerala** (2023 (6) KLT 750), **Rajiv Thapar and Others** v. **Madan Lal Kapoor** [(2013) 3 SCC 330] and **Prashant Bharti** v. **State (NCT of Delhi)** [(2013) 9 SCC 293]. Crl.M.C.No.6412 of 2023 10 13. In the present case, the materials made available would reveal that the petitioner has not committed any acts intentionally with dishonest intention. An omission or irregularity or even dereliction of duty would not attract the criminal liability. 14. A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of mens rea. On the principles of actus reus and mens rea, the learned author Sri.Glanville Williams in the 'Textbook of Criminal Law' [Third Edition, Dennis.J.Baker, page 95] comments thus: “The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence upon this fault element was the mark of advancing civilization.” 15. On the principles of Criminal Liability, the learned author Sri.K.D. Gaur in his book Criminal Law [Lexis Nexis, Butterworths, page 37] explains thus: “Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.” Crl.M.C.No.6412 of 2023 11 16. Dishonest intention is _sine qua non_ to attract the offence punishable under Sections 13(1)(c) and 13(1)(d) of the Act. 17. In **Zakia Ahsan Jafri** v. **State of Gujarat** (AIR 2022 SC 3050), the Apex Court held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned. 18. In the present case, the prosecution failed to connect the petitioner with the alleged conspiracy. As far as the petitioner is concerned, at the most, what can be inferred is that Annexure A1 FIR contains allegations of the offences referred to above. But, the complaint does not `disclose’ the offences alleged. The Court must be satisfied that an offence is `disclosed’ by the materials including documents, circumstances, etc. substantiating the allegations in the complaint (vide: **Manoj Abraham** v. **Chandrasekharan Nair** (2018 (1) KLT 174). 19. I am of the view that the petitioner has placed materials, which are of sterling and impeccable quality, to rule out the assertions contained in Annexure A1 FIR. Those materials are sufficient to reject and overrule the factual assertions in the FIR against the petitioner. Therefore, the proceedings initiated against the petitioner Crl.M.C.No.6412 of 2023 12 would result in abuse of the process of the Court and would not serve the ends of justice. 20. FIR No.2 of 2023 of the VACB, Southern Range, Thiruvananthapuram and all further proceedings pursuant to it, as against the petitioner, stand quashed. It is made clear that the observations made in this order are restricted to the petitioner alone. The Crl.M.C. is allowed. Sd/- **K.BABU Judge** TKS Crl.M.C.No.6412 of 2023 13 ## **`APPENDIX OF CRL.MC 6412/2023`** ## **`PETITIONER’S ANNEXURES`** - **`Annexure A1 A TRUE COPY OF THE FIR 02/2023 DATED 02/05/2023 OF VACB, SOUTHERN RANGE, THIRUVANANTHAPURAM.`** - **`Annexure A2 A TRUE COPY OF THE LETTER NO. 1/151065/2023 DATED 20.07.2023 ALONG WITH THE ENQUIRY REPORT NO. PE-02/2022/SIU-1, DATED 08/11/2022 CONDUCTED BY THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT-1, THIRUVANANTHAPURAM`** - **`Annexure 3 A TRUE COPY OF SALE DEED NO. 178/1983 EXECUTED BY SMT. VARAMGI AMMA AND OTHERS (LEGAL HEIRS OF THE LANDOWNER)`** - **`Annexure A4 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO. 1494/16 EXECUTED BY ACCUSED NO.3/VALSAMMA IN FAVOR OF BENJAMIN BEFORE THE SUB REGISTRY OFFICE, THIRUVANANTHAPURAM`** - **`Annexure A5 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO. 1495/16 EXECUTED BY ACCUSED NO.. 3/VALSAMMA IN FAVOR OF MATTHEW`** - **`Annexure A6 A TRUE COPY OF EXTRACT OF THANDAPER ACCOUNT NO. 49099 OF KADAKAMPALLY VILLAGE`** - **`Annexure A7 A TRUE COPY OF EXTRACT OF THANDAPER ACCOUNT NO. 49100 OF KADAKAMPALLY VILLAGE`** - **`Annexure A8 A TRUE COPY OF CERTIFIED COPY OF SETTLEMENT DEED NO. 2631/2017 EXECUTED BY ACCUSED NO. 3/VALSAMMA IN FAVOR OF BENJAMIN MICHEAL`** - **`Annexure A9 A TRUE COPY OF EXTRACT OF THANDAPER NO. 48916 OF KADAKAMPALLY VILLAGE`** - **`Annexure A10 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO. 222/17 EXECUTED BY BENJAMIN IN FAVOR OF RAJESH JOSEPH BEFORE THIRUVANANTHAPURAM SUB-REGISTRY OFFICE`** - **`Annexure A11 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO. 1230/17 EXECUTED BY MATHEW TO RAJESH JOSEPH`** - **`Annexure A12 A TRUE COPY OF RELEVANT PAGES OF THE DIGITAL DATA (IN COMPACT DISC) COLLECTED FROM KERALA LAND INFORMATION MISSION (KLIM)`** Crl.M.C.No.6412 of 2023 14 ``` Annexure A13A TRUE COPY OF THE JUDGMENT DATED 7.12.2022 IN WP(C) NO. 18740/2021 ``` ``` Annexure A14A TRUE COPY OF PROCEEDINGS BEARING NO. B12- 2861/2019 DATED 12/05/2023 ISSUED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM ``` ``` Annexure A15A TRUE COPY OF THE REPRESENTATION DATED 5.07.2023 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. ``` TKS