M.P. Mathew v. Central Bureau of Investigation (CBI) and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 CRL.MC NO. 5005 OF 2021** **AGAINST THE ORDER DATED 20.10.2021 IN CRL.M.P.NO.86/2021 IN CC 15/2011 IN R.C.NO.6(A)/2004/CBI/KER OF CBI/SPE COURT, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO.1:** M.P. MATHEW AGED 60 YEARS S/O. P.O.PETER, FORMERLY BRANCH MANAGER, STATE BANK OF TRAVANCORE, PALAI BRANCH, PRESENTLY DY. MANAGER, CORE BANKING SOLUTIONS DEPT., SBT, HO, TRIVANDRUM, MAVILA HOUSE, MALLAPPALLY WEST P.O., PATHANAMTHITTA-689585. BY ADVS. B.RAMAN PILLAI (SR.)(R-260) M.SUNILKUMAR R.ANIL SUJESH MENON V.B. T.ANIL KUMAR THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT S.LAKSHMI SANKAR MAHESH BHANU S. RESSIL LONAN ## **RESPONDENTS/COMPLAINANT/ACCUSED NOS.2 TO 4:** 1 CENTRAL BUREAU OF INVESTIGATION SCB THIRUVANANTHAPURAM, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 K.S.GOPIKRISHNA, S/O. LATE SADASIVAN V. KAYALAKKAL, BABUJI NAGAR, THIRUVANANTHAPURAM-695011. Crl.M.C.No.5005/2021 2 3 ABEY MATHEW, DEVELOPMENT OFFICER, UNITED INDIA INSURANCE COMPANY, PAREKKULAM BUILDING COLLECTORATE, KOTTAYAM, R/O. OOPPOOTTIL, MUTTUMPURAM HOUSE, OLD SEMINARY ROAD, CHUNGAM, KOTTAYAM, PIN-686001. 4 MATHEWS MANUEL, MANAGING DIRECTOR, M/S. MALAYALAM SOLVENT EXTRACTIONS GROUP, KEZHUVAMKULAM, PALAI, R/O. KOLADY HOUSE, CHERUPUNGAL P.O., PALAI, KOTTAYAM, PIN-686584. SRI P VIJAYAKUMAR ASG CBI, SRI GIRISH KUMAR V CGC FOR CBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON 01.11.2021 PASSED THE FOLLOWING: Crl.M.C.No.5005/2021 3 ## **“CR”** ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.5005 of 2021 ------------------------------------- Dated this the 1[st] day of November, 2021 ------------------------------------------- ## **O R D E R** The petitioner is the first accused in the case C.C.No.15/2011 pending in the Court of the Special Judge (SPE/CBI), Thiruvananthapuram. 2. The facts of the case do not need narration here. Suffice it to state that the offences alleged against the accused are punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and also under Section 120B of the Indian Penal Code. 3. The trial of the case is in progress before the Special Court. The prosecution has examined 26 witnesses and marked 37 documents in the case. While so, the Public Prosecutor filed Annexure-A2 application in the Special Court under Section 91 of Crl.M.C.No.5005/2021 4 the Code of Criminal Procedure, 1973 (for short 'the Code'). The prayer made in that application was to issue summons to Mr.M.V.Varghese, Assistant General Manager (Rtd), State Bank of Travancore, Pala Branch to produce certificate under Section 65B of the Indian Evidence Act in respect of the documents which have already been marked as Exts.P6 and P17 to P20. The Public Prosecutor also filed another application under Section 311 of the Code for issuing summons to two additional witnesses, including Mr.M.V.Varghese. 4. The petitioner filed objection to the above applications. But, as per Annexure-A5 order dated 20.10.2021, the Special Court allowed Annexure-A2 application. This order is challenged by the first accused in this petition filed under Section 482 of the Code. 5. Heard learned senior counsel who appeared for the petitioner and the learned Central Government Standing Counsel who appeared for the Central Bureau of Investigation (CBI). Crl.M.C.No.5005/2021 5 6. It appears that the prosecution had omitted to produce certificate under Section 65B of the Indian Evidence Act in respect of some of the documents which have already been marked during the trial of the case. The Special Court allowed Annexure-A2 application on the finding that there is no bar to produce a certificate under Section 65B of the Indian Evidence Act at a later stage of the trial of the case. 7. Learned senior counsel for the petitioner contended that Mr.M.V.Varghese is not the person who is now in custody of the documents sought to be summoned. Learned senior counsel would also contend that the attempt of the prosecution is to fill the lacuna in evidence and it would cause serious prejudice to the accused. 8. Failure to produce certificate under Section 65B(4) of the Indian Evidence Act at the time of filing the charge-sheet is not fatal to the prosecution (See **State v. M.R.Hiremath : AIR 2019 SC 2377** ). Crl.M.C.No.5005/2021 6 9. Normally the investigating officer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the charge sheet, it is always open to the investigation officer to produce the same with the permission of the Court. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently (See **Central Bureau of Investigation v. R. S. Pai** : **AIR 2002 SC 1644** ). 10. If the certificate under Section 65B of the Evidence Act is not produced alongwith the charge-sheet, it does not mean that doors of the court are completely shut and it cannot be produced subsequently in any circumstance. So long as the hearing in a trial is not over, certificate under Section 65B of the Crl.M.C.No.5005/2021 7 Evidence Act can be directed to be produced by the Court at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence. But, the exercise of power by the courts in criminal trials in permitting documents to be filed at a stage after filing the charge-sheet should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the Court, in examining any application by the prosecution under Section 91 or 311 of the Code. Depending on the facts of each case, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time (See **Arjun Paditrao Khotkar v. Kailash Kushanrao : AIR 2020 SC 4908** ). 11. Failure of the prosecution to file a document along with the charge sheet is an omission constituting a procedural lapse only. Substantive justice must always prevail over procedural or technical justice. Failure to explain delay in a procedural matter cannot be given undue importance, especially in a case relating Crl.M.C.No.5005/2021 8 to corruption in public life. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law (See **State v. M. Subrahmanyam : AIR 2019 SC 3232** ). 12. In cases under the P.C.Act, production of an additional document during the course of the trial and summoning an additional witness to prove the document, cannot be found to be totally impermissible under law (See **State v. Seenivasagan** : **AIR 2021 SC 2441** ). 13. In the present case, the main documents, in respect of which the certificate under Section 65B of the Evidence Act is required, have already been marked or produced. Therefore, it cannot be found that production of the certificate now would cause prejudice to the accused. 14. There is also no merit in the contention of the learned counsel for the petitioner that the attempt of the prosecution is to fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by Crl.M.C.No.5005/2021 9 a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better (See **Rajendra Prasad** Crl.M.C.No.5005/2021 10 ## **v. Narcotic Cell : AIR 1999 SC 2292** ). 15. Learned senior counsel for the petitioner submitted that, if the documents or the certificate under Section 65B of the Evidence Act have already been produced and admitted in evidence by the trial court, he may be permitted to raise all his contentions at the time of the final hearing of the case with regard to inadmissibility and improper marking of documents. The circumstances of the present case would justify allowing this prayer. 16. Consequently, the petition is dismissed. The petitioner is at liberty to raise all his contentions with regard to admissibility or inadmissibility or improper marking of documents at the time of the final hearing of the case before the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.5005/2021 11 ## **APPENDIX OF CRL.MC 5005/2021** PETITIONER'S ANNEXURES Annexure A1 THE TRUE COPY OF THE PETITION FILED BY THE PROSECUTION BEFORE THE HON'BLE SPECIAL JUDGE, (SPE/CBI) THIRUVANANTHAPURAM DATED 11.3.2019 FILED BY THE PROSECUTION. Annexure A2 THE TRUE COPY OF THE PETITION FILED AS CRI.M.P.NO.86 OF 2021 OF THE COURT OF THE SPECIAL JUDGE, (SPE/CBI) THIRUVANANTHAPURAM. Annexure A3 THE TRUE COPY OF THE PETITION FILED BY THE PROSECUTION BEFORE THE HON'BLE SPECIAL JUDGE, (SPE/CBI), THIRUVANANTHAPURAM AS CRL.M.P.NO.87 OF 2021. Annexure A4 THE TRUE COPY OF THE WRITTEN OBJECTION DATED 8.10.2021 FILED BY THE PETITIONER BEFORE THE HON'BLE SPECIAL JUDGE, (SPE/CBI), THIRUVANANTHAPURAM. Annexure A5 THE CERTIFIED COPY OF THE ORDER DATED 20.10.2021 IN CRL.M.P.NO.86/2021 OF THE COURT OF THE SPECIAL JUDGE, (SPE/CBI), THIRUVANANTHAPURAM. RESPONDENTS' NIL ANNEXURES TRUE COPY PS TO JUDGE