N. Viswambharan Beena Cottage v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945** **CRL.REV.PET NO. 2465 OF 2012** **AGAINST THE ORDER/JUDGMENT CC NO.47/2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/ DEFACTO COMPLAINANT:** N.VISWAMBHARAN BEENA COTTAGE, KATTACHALKUZHI P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN ## **RESPONDENTS/ COMPLAINANT & ACCUSED:** 1 STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM – 682 031 2 V.RETNAKARAN FORMERLY SECRETARY OF GANDHIJI SMARAKA HANDLOOM WEAVER'S CO-OPERATIVE SOCIETY, KATTACHALKUZHI (RAHUL NIVAS, SICILYPURAM), KATTACHALKUZHI, BALARAMAPURAM – 695 501 3 S.RETNAKARAN PRESIDENT OF GANDHIJI SMARAKA HANDLOOM WEAVER'S CO-OPERATIVE SOCIETY, KATTACHALKUZHI, DEEPALAYAM SICILYPURAM), KATTACHALKUZHI, BALARAMAPURAM – 695 501 4 A.RAVEENDRAN FORMERLY CO-OPERATIVE INSPECTOR, VENGANOOR CIRCLE, (TC 11/2192(2), KANAKUNNU LANE, NANDANCODE, KOWDIAR VILLAGE, THIRUVANANTHAPURAM – 695 003 **CRL.R.P. No.2465/2012** 2 BY ADVS. SRI.A.R.DILEEP SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SRI.MANU SEBASTIAN SRI. NIMESH THOMAS – R2 & R3 SMT.S.REKHA SR PP, SRI. A RAJESH SPL. PP, VACB **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.R.P. No.2465/2012** 3 ## **O R D E R** Dated this the 25th day of July, 2023 This Criminal Revision Petition has been filed against the judgment of acquittal passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, 'the court below') in C.C.No.47/2005 dated 26/03/2012. 2. The revision petitioner is the defacto complainant at the court below. He initially filed a complaint before the Kerala Publicmen's Corruption (Investigation and Enquiries) Commission alleging corruption at the Gandhiji Smaraka Handloom Weaver's Co-operative Society, Kattachalkuzhi (for short, 'the Society'). The said complaint was forwarded to Lok Ayukta. On the basis of the said complaint, a vigilance enquiry was conducted and thereafter a crime was registered by VACB, Thiruvananthapuram. After completion of the investigation, final report was filed against the three accused persons, who were arrayed as respondent Nos. 2 to 4 herein, alleging offences punishable under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 468, **CRL.R.P. No.2465/2012** 4 471, 403, 420 and 120-B of the Indian Penal Code. 3. The accused Nos. 1 and 2 were the Secretary and President respectively of the Society and the accused No.3 was the Co-operative Inspector of the Venganoor Handloom Circle during the period between 22/08/1994 and 19/06/1995. Admittedly, they were public servants. 4. The prosecution case, in short, is that the accused persons by abusing their official position as public servants, conspired together to misappropriate the money of the Society and in pursuance of the conspiracy falsified the records relating to the transaction of purchase of yarn worth Rs.10,13,110/-, used forged documents as genuine and thereby obtained pecuniary advantage to the extent of Rs.5,41,328/- to them and corresponding loss to the Government. 5. After trial, the court below found that the prosecution failed to prove its case beyond reasonable doubt and accordingly, the accused were acquitted as per the impugned judgment. Challenging the said judgment, the defacto complainant preferred this Crl.R.P. 6. I have heard Sri.M.Balagovindan, the learned counsel **CRL.R.P. No.2465/2012** 5 for the revision petitioner, Sri.Nimesh Thomas, the learned counsel for the respondent Nos.2 & 3 as well as Sri.A.Rajesh, the learned Special Pubic Prosecutor for VACB. 7. The learned counsel for the revision petitioner submitted that the prosecution deliberately failed to examine any material witnesses to prove its case. According to the counsel, in such circumstances, the court below ought to have invoked Section 311 of Cr.P.C. and examined the witnesses. On the other hand, the learned counsel for the respondent Nos. 2 & 3 supported the findings and verdict of the court below and submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and the court below rightly acquitted the accused. 8. The status of the accused Nos. 1 to 3 is not in dispute. They were public servants during the alleged period of the offence. The prosecution allegation is that accused Nos. 1 to 3 forged records in respect of transactions relating to the purchase of yarn worth Rs.10,13,110/-, disbursement of yarn, production of clothes, sale of clothes, disbursement of rebate amount etc. of **CRL.R.P. No.2465/2012** 6 the Society and they used those forged documents as genuine and dishonestly misappropriated a sum of Rs.5,41,328/- of the Society. To prove the case of the prosecution, PW's 1 to 15 were examined. Exts. P1 to P22 were marked. On the side of the defence Ext.D1 to D2(a) were marked. It is not a case where the prosecution did not examine the material witnesses as alleged by the learned counsel for the revision petitioner, but it is a case where the prosecution witnesses did not support the prosecution. In such circumstances, the argument canvassed by the learned counsel for the revision petitioner that, the court below ought to have invoked the power under Section 311 of Cr.P.C. cannot be accepted. The deposition of the prosecution witnesses examined for prosecution would show that they did not support the prosecution version. According to the prosecution, the accused committed the offences during the period between 22/08/1994 and 19/06/1995. PW9, who was working as Procurement Officer at the Head Office of Handex at Thiruvananthapuram during the period from 1992 – 2004, deposed that Exts.P2 to P2(d) bills were issued from K.V. Yarn Corporation, Nagarcoil, and as per **CRL.R.P. No.2465/2012** 7 the said bills, yarn worth Rs.10,13,110/- was purchased. He further deposed that cloth worth Rs.27,06,640/- could be woven and sold using the aforesaid yarn covered by Exts.P2 to P2(d). However, in cross-examination, he stated that he specified the amount of Rs.27,06,640/- taking into account the rate of wages, yarn rate, special charges and the profit of the Society. However, he could not say anything about the wage rate, yarn rate and special charges. Hence, no reliance can be placed on his evidence that, cloth worth Rs.27,06,640/- could be woven and sold using the yarn worth Rs.10,13,110/-. PW15 was the Proprietor of the K.V.Yarn Corporation at Nagarcoil. He deposed that though Exts.P2 to P2(d) are the bills bearing the address of his proprietary concern, he did not make any sale from his establishment as per those bills. His evidence would further show that he had no connection whatsoever with the sale as per those bills. In cross-examination he stated that he had been running the business for six months after he took licence in 1992. Thereafter, he transferred the business establishment to one Subbayya, the husband of the sister of PW15, who was running the business in warp and yarn in the **CRL.R.P. No.2465/2012** 8 said establishment, and that Exts.P2 to P2(d) were issued by Sri.Subbayya. The evidence of PW15 shows that the yarn covered by Exts.P2 to P2(d) was purchased from the aforesaid establishment. The evidence of PW8 shows that the Proprietor of TVL.KV Yarn Corporation was a registered dealer of yarn till 01/04/1998. As stated already, the alleged incident involved in this case took place during the period between 22/08/1994 and 19/06/1995. From these evidence, it is difficult to find that the accused have committed the offences alleged against them as rightly held by the court below. 9. It is settled that the revisional jurisdiction under Sections 397 and 401 of Cr.PC is to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the apex court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence (See _**Shlok Bhardwaj v. Runika Bhardwarj and others**_ **CRL.R.P. No.2465/2012** 9 [(2015) 2 SCC 721]). It is equally settled that, while exercising the revisional powers under Sections 397 r/w 401 of Cr.PC, the court is required to find out if there is any illegality or impropriety in the finding of the trial court warranting interference and it is not open to the revisional court to exercise the revisional power as the appellate forum. I have carefully gone through the entire records, evidence, proceedings and the judgments of the court below. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the court. Accordingly, this Criminal Revision Petition is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** APA