P. Rahim v. E.P. Jayarajan & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935** ## **Crl.MC.No. 1499 of 2013 ()** **------------------------------------CRMP 616/2007 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM.** **.........** ## **PETITIONER(S)/COMPLAINANT:** **--------------------------------------------------** **P.RAHIM, ADVOCATE STATE SECRETARY, INDIAN LAWYERS CONGRESS INDIRA BHAVAN, THIRUVANANTHAPURAM.** **BY SRI.N.DHARMADAN (SENIOR ADVOCATE) BY ADV. SMT.D.P.RENU** ## **RESPONDENTS/ACCUSED & STATE:** **---------------------------------------------------** ## **1. E.P.JAYARAJAN GENERAL MANAGER, DESHABHIMANI, KOZHIKODE** **2. DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.** **3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 & R3 BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-06-2013, THE COURT ON 05-07-2013 PASSED THE FOLLOWING:** **tss** **Crl.MC.No. 1499 of 2013 () ------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** ## **-------------------------------------------** ## **ANNEXURE-I- TRUE COPY OF COMPLAINT DT.4-7-2007 FILED BY THE PETITIONER** **ANNEXURE-II - TRUE COPY OF ORDER IN CRL.M.P.616/2007 DT.13-7-2007 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM** **ANNEXURE-III- TRUE COPY OF ENQUIRY REPORT DT.23-4-2008 BY THE SUPDT. OF POLICE** **ANNEXURE-IV - TRUE COPY OF ORDER IN CRL.M.P.616/2007 DT.2-7-2008 OF THE EQNUIRY COMMISSIONER AND SPECIAL JUDGE,THIRUVANANTHAPURAM.** **ANNEXURE-V - TRUE COPY OF ENQUIRY REPORT DT.28-12-2010 BY THE SUPDT. OF POLICE.** **ANNEXURE-VI- TRUE COPY OF ORDER IN CRL.M.P.616/2007 DT.10-1-2013 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.** ## **RESPONDENT(S)' ANNEXURES** **-------------------------------------------** ## **NIL** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.M.C.No. 1499 of 2013** **----------------------------------------** Dated this the 5[th] day of July, 2013 ## **O R D E R** This Crl.M.C. is preferred at the instance of the petitioner herein, who is the complainant in Crl.M.P.No.616 of 2007 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, aggrieved by the order of the learned Judge dated 10.1.2013 in the above Crl.M.P., by which all further proceedings on the above complaint against one E.P.Jayarajan, who was the then General Manager of Desabhimani daily, Kozhikode is dropped. 2. The allegation against the accused is that he had received a sum of `2 crores from one Sandeago Martin, who engaged in the business of selling Sikkim Lottery. According to the complainant, there was total ban against the sale of lottery tickets of Sikkim and Bhutan in the Kerala State, but the first respondent/accused accepted `2 crores as illegal gratification in order to influence the then Government for doing favours to Sandeago Martin connected with the criminal cases regarding the Crl.M.C.No.1499 of 2013 :-2-: bogus sale of his lottery business in the State. 3. On receiving the above complaint, the learned Judge forwarded the complaint under Section 156(3) of the Cr.P.C. to the Director, VACB, Thiruvananthapuram for conducting a Vigilance Enquiry/Investigation into the allegations levelled against the accused and for filing a report/FIR before that court. As per Annexure II order, the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Cell, Kozhikode had undertaken a vigilance enquiry and thereafter filed a detailed report before the court below, which is produced along with this petition as Annexure III, stating that enquiry did not bring forth any substantial evidence to suspect any illegal motive in the payment of rupees 2 crores to Deshabhimani by said Martin in the name of his sons and in the acceptance of the amount by Deshabhimani. On filing Annexure III report and dissatisfied with the enquiry conducted, the court below, holding that there was no full and complete investigation, was reluctant to accept Annexure III report and directed the Director, VACB to conduct further investigation. Thus, on the basis of Annexure IV order, the Superintendent Crl.M.C.No.1499 of 2013 :-3-: of Police, Vigilance and Anti Corruption Bureau, Northern Range, Kozhikode had undertaken a further investigation which resulted in Annexure V report stating that the further enquiry did not bring forth any substantial evidence to suspect any illegal motive in the payment of rupees two crores to Deshabhimani by Martin and thus, no action is recommended. 4. Thus, the present impugned order is issued, by the learned Judge of the Court of the Enquiry Commissioner and Special Judge accepting Annexure III report and dropping all further proceedings against the said accused. 5. Heard Sri.N.Dharmadan, learned Senior counsel appearing for the petitioner and Sri.T.Asaf Ali, the Director General of Prosecutions. 6. The learned Senior counsel for the petitioner strenuously argued that the above case occurred, when the Government, which was led by CPI(M), of which Sri.V.S.Achunthanandan was the then Chief Minister and in charge of Home and Vigilance Department, came into power during the month of May 2006. The learned counsel submitted that at that time, Crl.M.C.No.1499 of 2013 :-4-: the first respondent was holding the post of General Manager of the Deshabhimani Printing and Publishing (P) Ltd. and there was total ban of sale of lottery tickets of Sikkim and Bhutan States in the Kerala State and criminal cases were pending against Sri.Sandeago Martin and his associates M/s.M.Daison and M.Charles. The allegation is that the first respondent, being an office bearer of CPI(M) State Committee, accepted `2 crores as illegal gratification from the above said absconding persons as a motive for doing favour by exerting influence over State functionaries, who have power of investigation and to file criminal cases on behalf of the Government. According to the learned counsel, when the fact about the acceptance of illegal gratification brought to light by the news papers, the first respondent admitted the receipt of the said amount for the Deshabhimani Ltd. Therefore, it shows that he accepted the said amount as bribe for rendering favour to Sandeago martin and others for closing the investigations, cases pending against the said accused. According to the learned counsel, the first respondent will come under the purview of 'public servant' as defined under Section 2(c)(viii) of the Prevention of Crl.M.C.No.1499 of 2013 :-5-: Corruption Act, 1988 (hereinafter referred to for short 'as the P.C.Act') and it was in the above circumstances, the petitioner preferred complaint for the offences punishable under Sections 7,8 and 9 read with Section 13(1) (d) of the P.C.Act. According to the learned counsel, though the court below, dissatisfied with the Annexure III vigilance report, directed and forwarded Annexure III report for further investigation, such further investigation was entrusted with the same officer, who furnished the earlier report vide Annexure III, which is highly illegal and arbitrary. The learned Senior Counsel pointed out that in the second report i.e., Annexure V, the investigating officer has not made any attempt to conduct investigation as ordered by Annexure IV order and the matters, specifically referred to and directed to be investigated, have not been considered and filed Annexure V report reiterating his earlier stand in favour of the first respondent/accused. Therefore, according to the learned counsel, the trial court is not justified in accepting Annexure V report and dropping the proceedings upon the complaint preferred by the petitioner. In support of his contention,the learned counsel heavily placed reliance upon the decision reported in **State** Crl.M.C.No.1499 of 2013 :-6-: **of Punjab** v. **Central Bureau of Investigation and others** [AIR 2011 SC 2962]. 7. On the other hand, Sri.T.S.Asaf Ali, the Director General of Prosecutions, after taking me through various provisions of the P.C.Act., submitted that the facts and circumstances involved in the case particularly the allegations, attracted the various provisions of the P.C.Act and if this Court orders further investigation, the State is ready to undertake such investigation and lay a report. 8. I have carefully considered the arguments advanced by the learned Senior counsel for the petitioner and the learned Director General of Prosecutions. I have perused the materials produced along with the above Crl.M.C and also Annexure VI order, which is under challenge in this Crl.M.C. 9. At the outset, it is to be noted that the petitioner, who is the complainant, is one of the office bearers of the Indian Lawyers Congress, Kerala State Unit, which has got political affinity towards the Indian National Congress, which is one of the major partners of the present ruling Crl.M.C.No.1499 of 2013 :-7-: coalition Government and the first accused, a known leader of Communist Party of India (Marxist), which is the main political opponent of the ruling coalition Government. In the light of the persuasive argument advanced by the learned counsel Mr.N.Dharmadan, I have repeatedly gone through Annexures III,IV and V produced in the above case. The allegation against the first respondent is that he being the General Manager of Deshabhimani Printing and Publishing Company(P) Ltd. accepted `2 crores as illegal gratification in order to influence the then Government for doing favours to Sandeago Martin connected with the cases regarding the bogus sale of his lottery business in the State. During the first enquiry, the Enquiry Officer has examined 12 witnesses and seized seven documents as compiled in Annexure III report. The officer has also questioned the delinquent/accused. In paragraph 9 of Annexure III, the officer has marshalled the evidence and discussed about the evidence collected by him. Thus, it is found that it is an admitted fact and case of the accused that `2 crores has been collected towards the Deshabhimani fund from the children of S.Martin, owner of M/s.Martin Lottery Agency Crl.M.C.No.1499 of 2013 :-8-: Limited, who is the sole distributor for selling Sikkim State Lotteries and according to the investigation, it was found that no criminal case was registered by the Police at the time of collecting the said amount by Deshabhimani. On a scanning the documents collected, the Officer found as follows:- “................................................ _Ext.A1 shows that a joint SB account in the name of Martin and minor M.Charls in SB A/c.No.1121155000054271 and another joint account No.1121155000054251 in the name of S.Martin and minor M.Daison were in force at Karoor Vysya Bank as on 09.10.2006. Ext.A shows that 4 DDs. bearing No.171267, 171268,171269 and 171270 for Rupees 50 lakhs each were purchased (two each by M.Charls and M,Daison) on 9.10.2006 from the said joint account in favour of General Manager of Deshabhimani payable at Thiruvananthapuram. The amount is seen paid for the purchase of Deshabhimani bond. These four DDs. are seen acknowledged by Deshabhimani through computer receipts No.RC 000378,RC 000379,RC 000380 and RC 000381 in 26.10.2006 (Ext.E2)”_ It was also found by the officer that as per the evidence of witness No.9, a fund was mobilised for business promotion and development of Deshabhimani as per the decision taken by CPI(M) State Committee and thus, the amount was collected as advance from Crl.M.C.No.1499 of 2013 :-9-: ## Deshabhimani's well wishers, CPI(M) party comrades and advertisers. ## The prevailing interest is paid to those advances. It is further stated as follows:- “...................... _Four DDs. for rupees 50 lakhs each advanced by M.Charls and M.Daisen were brought by Sri.Venugopalan, the Dy.General Manager (Marketing) on 26.10.2006. Witness No.5 corroborates this version. All those four DDs. were acknowledged under computerized receipts and the receipts were signed by W9. W9 further states that those receipts were handed over to W5 Venugopalan for onward transmission to Charls and Daison. The DDs. mentioned above were credited to Deshabhimani's account No.14766 at Punjab National Bank, Statue Branch, Thiruvananthapuram on the same day. The DDs are seen paid by Karur Vysya Bank, Thambannur branch on 28.10.2008 under high value clearing of M/s.Punjab National Bank Thiruvananthapuram (Ext.F) Ext.F1 shows that these DDs. for rupees 50 lakhs each have been credited to Deshabhimani's account No. 3301002100014766 on 26.10.2006 itself. Transaction of these huge amount of rupees two crores is seen clearly accounted. The DDs are purchased from Karur Vysya Bank Dr.Nanjappa Road, Coimbatore on 9.10.2006 from the existing fixed deposit in the joint account of S.Martin, M.Charls and M.Daison. These DDs are brought by Venugopalan and entrusted to Deshabhimani's Internal Accountant on 26.10.2006 and the amount is seen credited on Deshabhimani's account on the same day. The amount is accounted through bank transaction._ “ ## It is further seen discussed in Annexure III as follows:- “ _During the enquiry of this reference, it has come in evidence that fund was collected for modernization and_ Crl.M.C.No.1499 of 2013 **==> picture [27 x 9] intentionally omitted <==** _business promotion of Deshabhimani from the well wishers and persons who used to give adevertisement ot Deshabhimani.........................”_ Thus, on the basis of the evidence and materials, the then Superintendent of Police Sri.T.Sreesukan I.P.S., VACB, Special Cell, Kozhikode concluded that enquiry did not bring forth any substantial evidence to suspect any illegal motive in the payment of rupees 2 crores to Deshabhimani by Martin in the name of his sons and in the acceptance of the amount by Deshabhimani. It was further found that the complainant has got no substantial evidence or material to prove that the payment of rupees 2 crores by Martin is for undue favour from the Government or the acceptance of this 2 crores by Deshabhimani is as a motive for doing favour to Martin and his lottery business by exercising the SO's political influence over the state functionaries. It is also concluded that Deshabhimani has collected fund from several other persons including those who used to provide advertisement to this news paper and there is no complaint from any of the persons who entered into the scheme by paying huge amount. It is also found that the owner of Deshabhimani and the SO Crl.M.C.No.1499 of 2013 :-11-: have admitted that no sanction has been obtained from RBI for the fund raising by issuing Deposit Certificates. 10. The above conclusion and report were not acceptable to the trial court and hence, the trial court, by Annexure IV order, ordered further investigation. After Annexure IV order, the very same officer undertook further investigation and further statements of three witnesses were recorded subsequently and fresh witnesses were questioned. Thus, it is concluded as follows:- “ _The enquiry so far conducted has revealed that Deshabhimani is registered under Press and Registration of Books Act-1867 and not under companies Act. Sri.E.P.Jayarajan (SO) was the General Manager of Deshabhimani. It is a private property owned by the Communist Party of India (Marxist). Deshabhimani had 6 units at Thiruvananthapuram, Kottayam, Kochi, Thrissur, Kozhikode and Kannur and each unit has got separate certificate of registration. Each unit has its own Managers. The Managers are being appointed by CPI(M) State Committee. The General Manager of the Deshabhimani is its Printer and Publisher. The state committee of the party had taken a decision to raise fund for the expansion and development of Deshabhimani. According to W-10, the decision was taken during October 2006 itself. It was decided to contact the well wishers and advertisers for this purpose. As informed by Sri.Rajiv (W-7), in charge of Megha Distributors Sri.S.Martin, Owner of M/s.Martin Lottery Agency Ltd. Contributed Rs.2 crores in the name of his two sons Charles and Daison, 4 DDs of Rs.50 lakhs each were sent from the account_ Crl.M.C.No.1499 of 2013 :-12-: _of his two sons in favour of Manager, Deshabhimani. This draft amount was credited to the Deshabhimani's account at Punjab National Bank, Thiruvananthapuram. The DDs were purchased on 9.10.2006 and those DDs were credited in Deshabhimani's bank account No.3301002100014766 at Punjab National Bank, Statue Branch, Thiruvananthapuram on 26.10.2006. It is not only from Martin but from others also Deshabhimani had collected funds. In Deshabhimani, Kannur unit, the collection of fund was inaugurated only in Dec. 2006. Sri.E.P.Jayarajan (SO) inaugurated the fund collection of Deshabhimani, Kannur unit by accepting the bond amount of Rs.10 lakhs from Sri.K.K.Radhakrishnan, M/s.K.K.Builders, Kannur. The details were published in Deshabhimani daily dated 10.12.2006. The statement given by W-10 clearly shows that there is no ambiguity in inaugural function conducted on 10.12.2006 since inaugural function relates to the fund collection at Kannur unit and not that of Deshabhimani of other units or Head Quarters. The fund collection at Deshabhimani head quarters has been started prior to the inaugural function convened at Kannur unit. Rs.2 crores from Charles and Daison were collected much earlier to the amount collected from M/s.K.K.Builders and the collected amount was credited in Deshabhimani's account. The collection is made through bank accounts. Nobody denies the giving and acceptance of the amount. During the further enquiry, it is revealed that the DDs were sent by Sri.J.Vallal Garshom (W-13) who is the in-charge of payment section of M/s.Martin Lottery Agency Ltd. Sri.Martin (W-6) in his further statement clearly states that he is not interested in the rate of interest of the deposit. Due to the expansion of Deshabhimani daily, the advertisements with regard to the lottery will be enhanced which will definitely improve the sale of lottery tickets and that is the business interest in depositing the amount to Deshabhimani bond. For enhancing the sale of lottery tickets, Megha Distributors (the Kerala stockist of Martin Lottery Agency) used to give advertisement in various news papers (Exhibits M and N) As stated earlier, the amount of rupees two crores received from Charles and Daison was returned by Deshabhimani._ Crl.M.C.No.1499 of 2013 ## :-13-: _Even though the petitioner had pointed out that the suspect officer has committed offence u/s.2, 8 and 9 of PC Act, he could not give any material evidence either oral or documentary to prove the offence. The enquiry revealed that there was no criminal case pending against Martin or his firm with the police at the time when Sri Martin had given Rupees two crores to Deshabhimani. There is no evidence to show that tax arrears are pending against Martin or his firm before the government. Therefore the allegation that suspect officer had accepted money for inducing or influencing government authorities is not substantiated in evidence.”_ From the above, it is crystal clear that the enquiry officer in pursuance of Anenxure IV order of the learned Judge of the Special Court undertook a further investigation and questioned the witnesses whose statements were recorded and also seized certain new documents. Fresh witness was examined and his statement was also recorded. So, the transaction alleged by the complainant is legal, which appears to be a transparent one and the same had taken place as part of the fund mobilization of Deshabhimani, which is a private institution owned by a prominent political party and the amounts are properly accounted. It is also clear that no evidence could be collected to attract the offences under Section 2,8 and 9 of the P.C.Act and the complainant has also failed to furnish any evidence. It is also pointed Crl.M.C.No.1499 of 2013 **==> picture [27 x 9] intentionally omitted <==** out that as per the evidence and materials so collected, no criminal case was pending against Sandeago Martin or against his sons or against them at the relevant point of time. 11. Thus, it can be seen that in para 4 of the impugned order, the learned Judge has reiterated the report made by the enquiry officer and the evidence and materials collected by him. In para 5 of the impugned order, the learned Judge of the court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram has concluded that since the disputed transactions have been taken place through bank accounts and no materials could be collected to show that any criminal case was pending against Sandeago Martin when such transactions had taken place and further concluded that to substantiate the allegation that those transactions were actually illegal gratifications, intended to help Sandeago Martin and his men by exercising influence over the Government and public officers, not even a prima facie case is established against the respondent/accused. Thus, concurring with the finding of the Enquiry Officer, who conducted the further enquiry, that even a prima facie case had not been established Crl.M.C.No.1499 of 2013 :-15-: against the respondents/accused under any of the provisions of the P.C.Act, the learned Judge accepted the further enquiry report. 12. The learned Senior Counsel for the petitioner vehemently argued that though the learned Judge ordered further enquiry, dissatisfied with Anenxure III report, further enquiry was conducted by the very same officer, which is illegal and highly arbitrary and cannot be approved in the eye of law. I am unable to sustain the above contentions in the given facts and circumstances of the case. It can be seen that the learned Judge of the Special Court has declined to accept and act upon the enquiry report i.e. Anenxure III, for the reasons pointed out in Annexure IV order. The learned Judge has pointed out certain contradictions in the evidence of witnesses examined and certain other defects. On a perusal of Anenxure V, it is crystal clear that on the basis of the direction issued by the learned Judge, after having considered the defect and contradictions so pointed out, the very same officer undertook the further enquiry and those irregularities and defect has been cured through the further investigation after taking further statements of the witnesses already examined and also Crl.M.C.No.1499 of 2013 :-16-: examining the new witnesses as well as after seizing new documents which are referred to above. In the discussion of the evidence and materials and the other evidence and materials already collected, that contained in Annexure V report of the enquiry officer, it can be seen that the said officer has specifically referred and addressed to the query and defect and contradictions pointed out by the learned Judge as per Anenxure IV order and gave a satisfactory explanation, supported by materials and evidence and assigned reasons for his conclusion whereby he reiterated his earlier opinion. 13. In this juncture, it is pertinent to note that Annexure IV order was passed by the Special Judge not due to any lack of confidence on the officer, who conducted the initial enquiry, but for the defects and irregularities pointed out by the court. Neither the petitioner nor his counsel has got any case to the effect that the enquiry officer was biased or he made such a report due to any extraneous consideration etc. Besides the above, Anenxure V is the answer to the irregularities or the so-called contradiction or objections raised by the petitioner/counsel for the Crl.M.C.No.1499 of 2013 :-17-: petitioner. In view of the fact that the court below accepted Annexure V report, there is no scope for any further complaints. 14. In this juncture, it is also relevant to note that though Mr.Asaf Ali, the learned Director General of Prosecution submitted that the transaction involved in the case attracted various provisions of the P.C.Act, he has miserably failed to substantiate the same in the given facts and circumstances of the case, particularly when the respondent, who is one of the leaders of C.P.I(M), is appointed to the post of General manager of Deshabhimani Printing and Publishing Company (P) Ltd, by the State Committee of Communist Party of India (Marxist), who owned Deshabhimani. 15. According to me, this Court need not go into the question whether the provisions of the P.C.Act are attracted in the present case or not, in the light of the given facts and circumstances of the case. It is found that the alleged transaction has taken place connected with the fund mobilisation for the Deshabhimani for running the same which is fully owned by a prominent and popular political party. The first respondent is Crl.M.C.No.1499 of 2013 :-18-: appointed by the Communist party of India (Marxist) State Committee being the owner of the Desabhimani Press and Printers, which is a registered private company. The above transaction was properly accounted and transparent in the light of the evidence and materials referred to in the enquiry reports viz Annexures III and V. The said fund was collected from the above named persons as collected from other persons mentioned in the above reports as part of fund Mobilization for Deshabhimani press. The petitioner has also failed to furnish any evidence to substantiate his allegation that the said amount was collected for any other purposes. So according to me, no offence under the provisions of the P.C.Act is attracted. In the light of the above facts and circumstances and the discussion and the materials referred to above, I am of the view that the learned Judge of the court below is fully justified in his finding, conclusion and dropping of all proceedings in the complaint preferred by the petitioner against the first respondent/accused. According to me, the continuation of the further proceedings in the above complaint, in the Crl.M.C.No.1499 of 2013 **==> picture [27 x 9] intentionally omitted <==** given facts and circumstances and materials referred to above will amount to abuse of process of the court. In the result, there is no merit in this petition and accordingly, the same is dismissed. MBS/ **V.K.MOHANAN, Judge** ## Crl.M.C.No.1499 of 2013 :-20-: