N. Radhakrishnan v. Surendran Nair and State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 309 OF 2023 ``` ``` AGAINST THE ORDER IN CMP 250/2022 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA ``` ## **`REVISION PETITIONER/PETITIONER:`** ``` N. RADHAKRISHNAN AGED 62 YEARS S/O K.V NARAYANAPILLA, KAVISSERY HOUSE, IMURIKARA, IMURI P 0, PERUMBAVOOR, PIN - 683544 BY ADV N.K.MOHANLAL ``` ## **`RESPONDENTS:`** `1 SURENDRAN NAIR, AGED 57 YEARS ERST WHILE MANAGER OF CORPORATION BANK, VYTTILA BRANCH ERNAKULAM, PIN-682019, NOW UNION BANK OF INDIA, VYTTILA BRANCH, ERNAKULAM., PIN - 682019 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 BY ADVS. ASP.KURUP SADCHITH.P.KURUP(K/1419/2002) C.P.ANIL RAJ(K/872/2007) SIVA SURESH(K/2688/2022)` A.RAJESH-SPECIAL PUBLIC PROSECUTOR REKHA -PUBLIC PROSECUTOR ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.R.P NO.309/2023 ``` ``` 2 ``` ## K.BABU, J ------------------------------------------------- ## Crl.R.P No.309 of 2023 -------------------------------------------------- ## Dated this the 25[th] day of October, 2023 ## O R D E R The revision petitioner is the complainant in C.M.P.No.250/2022 on the file of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha. The revision petitioner filed a complaint against respondent No.1 alleging offences punishable under Section 7 of the Prevention of Corruption Act (for short ‘the PC Act’) and Sections 406 and 420 of IPC. ## 2. The brief facts are as follows: One Sri.Mohanan, a contractor, availed a sum of Rs.1,40,00,000/- as an overdraft facility from the Corporation Bank, Vyttila Brach, Ernakulam presently, the Union Bank of India, Vyttila Branch. He also availed Rs.65,000/- as vehicle loan. The revision petitioner was a guarantor of the loan availed by Sri.Mohanan (hereinafter called ‘the borrower’). At the time of availing the loan, the revision petitioner had deposited the title deed in respect of his landed property and a residential building. The borrower committed default in repaying the ``` CRL.R.P NO.309/2023 ``` ``` 3 ``` loan. The Bank classified the loan account as NPA and thereafter proceeded under the relevant provisions of the SARFAESI Act. The revision petitioner filed S.A.No.175/2015 before the Debts Recovery Tribunal, Ernakulam, challenging the proceedings under the SARFAESI Act. The Securitisation Application filed by the revision petitioner was dismissed. Subsequently, he filed another S.A.No.181/2019 against the Bank and the same is pending before the Tribunal. The revision petitioner also filed O.S.No.1130/2015 before the Munsiff’s Court, Ernakulam against the Bank, the borrower etc. 3. The revision petitioner filed a complaint before the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha against respondent No.1, the then Manager of the Corporation Bank, alleging the offences aforementioned. In the complaint, the revision petitioner alleged that though the borrower is financially sound, respondent No.1 did not proceed against the borrower and his properties, but proceeded against the petitioner alone. He further alleged that respondent No.1 colluded with the borrower while initiating proceedings against the petitioner. It is alleged that there was wilful inaction on the part of respondent No.1. According to the revision petitioner, respondent No.1 ``` CRL.R.P NO.309/2023 ``` ``` 4 ``` violated the guidelines issued by the Bank in the matter of processing the loan. The revision petitioner also alleged that respondent No.1 appeared to have received gratification from the borrower to do a favour. 4. In the complaint, the petitioner prayed for directing the Vigilance and Anti Corruption Bureau to register FIR against respondent No.1 and to investigate the matter. 5. The learned Enquiry Commissioner and Special Judge, after going through the averments in the complaint, recorded the finding that the allegations are essentially civil in nature and that the ingredients of any cognizable offence have not been made out. The learned Special Judge, therefore, dismissed the complaint under Section 203 of Cr.P.C. 6. Heard Sri.N.K.Mohanlal, the learned counsel appearing for the petitioner, Sri.A.Rajesh, the learned Special Public Prosecutor, Sri.Rekha, the learned Public Prosecutor and Sri.A.S.P Kurup, the learned counsel appearing for respondent No.1. 7. The learned counsel for the revision petitioner submits that the complaint filed by the revision petitioner reveals cognizable offences, as ``` CRL.R.P NO.309/2023 ``` ``` 5 ``` alleged. It is his submission that the averments in the complaint would reveal the offences under Section 7 of the PC Act and Sections 406 and 420 of IPC. 8. The learned Special Public Prosecutor submitted that insofar as the offence under Section 7 of the PC Act is concerned, in view of the declaration of law by the Apex Court in Anil Kumar and Ors. v. M.K.Aiyappa and Ors . (2013(4) KLT 125) and the decision of the Division Bench of this Court in Muhammed V.A v. State of Kerala and others (ILR 2019(1) Kerala 280), the court below was not in a position to order the registration of FIR and investigation under Section 156(3) of Cr.P.C. The learned Special Public Prosecutor further submitted that, even otherwise, the ingredients of the offences alleged were not revealed in the complaint. 9. The learned counsel appearing for respondent No.1 submitted that respondent No.1 was bonafide exercising his duty as the Manager of the Bank and there is nothing on record to show that he had any criminal intention in the acts alleged. 10. I have gone through the complaint preferred by the revision petitioner. The complaint has been filed essentially on the foundation ``` CRL.R.P NO.309/2023 ``` ``` 6 ``` that respondent No.1 has acted in violation of the guidelines issued by the Bank in the matter of processing the loan in favour of the borrower. He further alleged that respondent No.1 did not take any steps against the borrower to realise the amount due to the Bank. On a perusal of the complaint, it is evident that there is no specific allegation that respondent No.1 obtained undue advantage from the borrower as a reward for the improper or dishonest performance of public duty. The allegation that respondent No.1 has violated the guidelines issued by the higher authorities in the Bank in processing the loan, would not result in the commission of any cognizable offences, as alleged. 11. One of the offences alleged against respondent No.1 by the revision petitioner is punishable under Section 7 of the PC Act. Admittedly, respondent No.1 was a public servant at the time of commission of the alleged offences. The question whether the Special Judge can order registration of FIR and investigation against a public servant under Section 156(3) of Cr.P.C. in respect of offences where the sanction is required was considered by the Apex Court in Anil Kumar’s case (supra). The Apex Court held thus: “13……..Once it is noticed that there was no previous ``` CRL.R.P NO.309/2023 ``` ``` 7 ``` sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers Under Section 156(3) Code of Criminal Procedure.” 12. Though the ratio in Anil Kumar ’s case (supra) was referred to a larger Bench by the Apex Court in Manju Surana v. Sunil Arora and Others [(2018) 5 SCC 557], as of now, the ratio in Anil Kumar ’s case (supra) holds the field. A Division Bench of this Court in Muhammed.V.A v. State of Kerala and others (ILR 2019(1) Kerala 280) had considered this question and held so. Therefore, I am of the view that the Special Judge was not competent to order registration of FIR and investigation alleging the offence under Section 7 of the PC Act, under Section 156(3) of Cr.P.C. without previous sanction as contained in Section 19 of the PC Act. 13. The Special Judge has gone into the averments contained in the complaint and found that the allegations are essentially of civil nature. The ingredients of the offences alleged against respondent No.1 are absent in the complaint preferred by the revision petitioner. It is also important to note that what matters is not just that the complainant alleges an offence. It is profitable to refer to the observation of this Court in Manoj Abraham IPS v. Chandrasekharan ``` CRL.R.P NO.309/2023 ``` ``` 8 ``` ## Nair P.P and another (2017(3) KHC 983). In Manoj Abraham (supra), this Court observed thus: “…….The complaint must disclose an offence. The term ‘disclose’ does not simply mean, that the complaint alleges or reveals an offence. Simply on a complaint which is not supported by any material, investigation cannot be ordered by the Special Courts under the PC Act. The court must be satisfied that an offence is ‘disclosed’ by the materials including documents, circumstances, etc. substantiating the allegations in the complaint.” 14. The revision petitioner failed to place any material to conclude that the order passed by the learned Special Judge was perverse or the view taken by the Court was wholly unreasonable or there is non-consideration of any relevant materials or palpable misreading of the materials placed before the Court. 15. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power of the Court to do justice in accordance with the principles of criminal jurisprudence. The ``` CRL.R.P NO.309/2023 ``` ``` 9 ``` revisional power of the Court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction. (vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123]). The Crl.Revision Petition lacks merits and it stands dismissed. Sd/- K.BABU JUDGE ab