P.A. Dinesh Babu v. State of Kerala and The Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 5926 OF 2020 CRIME NO.2/2013 OF VACB, THRISSUR, Thrissur AGAINST THE ORDER/JUDGMENT CC 3/2016 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` P.A.DINESH BABU AGED 55 YEARS JOINT REGIONAL TRANSPORT OFFICER, TIRURANGADI, (S/O.APPU, RESIDING AT PARAKKATTU HOUSE, AVINISSERI, ANAKKALLU, THRISSUR) (FORMER MOTOR VEHICLE INSPECTOR, OFFICE OF THE DEPUTY TRANSPORT COMMISSIONER, NORTH ZONE KOZHIKODE). BY ADVS. P.SAMSUDIN SRI.M.ANUROOP ``` ## **`RESPONDENT/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM, PIN-682017. ``` ``` BY RAJESH A SPL GP VIGILANCE;REKHA SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.5926 of 2020 ..2.. ## **K. BABU, J** **------------------------------------------------Crl.M.C.No.5926 of 2020 ------------------------------------------------Dated this the 20[th] day of November, 2023** ## **O R D E R** The petitioner, the sole accused in C.C.No.3/2016 on the file of the Court of Enguiry Commissioner and Special Judge (Vigilance), Thrissur, seeks to quash the final report and all further proceedings pursuant to it. 2. The petitioner faces charge under Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act,1988. The petitioner was employed as Motor Vehicles Inspector in the office of the Deputy Transport Commissioner, North Zone, Kozhikode. 3. The prosecution case is that, during the check period from 01.12.2004 to 09.01.2013, the petitioner acquired assets worth Rs.70,21,823.38+360.100gms of gold ornaments and incurred expenditure to the tune of Rs.26,02,671.26 making a total of Rs.96,24,494.64 Crl.M.C.No.5926 of 2020 ..3.. +360.100gms of gold ornaments, whereas his known source of income during the above period was Rs.66,87,369.75/- and thus as on 09.01.2013, he was found to be in possession of pecuniary resources and properties worth Rs.29,37,124.89 disproportionate to his known sources of income, which is 43.92% more than his known source of income+360.100gms of gold ornaments, for which he could not satisfactorily account for. 4. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Vigilance). 5. The learned counsel for the petitioner challenges the charge on the following grounds:- (1)The Vigilance has included the income acquired by the petitioner’s mother and wife as the assets of the petitioner at the end of the check period. (2)The Investigating agency has not included the assets the petitioner had prior to the check period. (3)While assessing the value of the residential building owned by the petitioner, the investigating agency has not Crl.M.C.No.5926 of 2020 ..4.. considered the date of construction of the same. 6. The learned Special Government Pleader submits that the challenges raised by the petitioner are only triable issues and they cannot be considered while dealing with the question whether the final report is to be quashed or not. 7. The assets of the petitioner at the beginning of the check period as assessed by the Investigating Agency is Rs.1,79,623.18 +156 gms of gold ornaments. The Investigating Agency assessed the assets of the petitioner at the end of the check period as Rs.72,01,446.56+516gms of gold ornaments. The petitioner acquired Rs.66,87,369.75 as income during the check period. The investigating agency assessed the expenditure during the check period as Rs.26,02,671.26. Therefore, the conclusion of the Investigating Agency is that the acquired assets of the petitioner is Rs.70,21,823.38+360.100 gms of gold ornaments. The income disproportionate to his known sources of income Crl.M.C.No.5926 of 2020 **==> picture [20 x 9] intentionally omitted <==** is assessed as Rs.29,37,124.89+360.100 grams of gold ornaments. 8. The learned counsel for the petitioner relied on Annexure-A24, a copy of the valuation report of the residential building owned by the petitioner, produced along with the charge sheet. The learned counsel submits that the date of commencement of the construction of the residential building has not been recorded in the report and therefore the value of the building assessed by the Investigating Agency may not reflect the true value of the building. It is further submitted that the prosecution could not produce any material to show that the building was constructed during the check period. It is further submitted that a series of assets owned by the petitioner prior to the check period were also included as the assets acquired by him in the check period. The learned counsel submits that the vehicles owned by petitioner’s wife are also included as assets of the petitioner. The learned Special Government Crl.M.C.No.5926 of 2020 **==> picture [20 x 9] intentionally omitted <==** Pleader submits that even if the grounds noted by the petitioner are accepted, the total assets shown as disproportionate to his known assets would come around Rupees Twenty Five Lakhs for which the petitioner could not satisfactorily account for. The learned Special Government Pleader further submits that the questions raised by the petitioner are only to be considered during the trial and at this stage, this Court is not in a position to consider the veracity of the evidence collected and produced by the prosecution. The learned Special Government Pleader relied on _**State through Deputy Superintendent of Police v. R. Soundirarasu**_ [2022 KHC 6920] and _**State of M.P. v. Virender Kumar Tripathi**_ [2009 KHC 6147] in support of his contentions. 9. The learned counsel for the petitioner relied on _**Natesan T.G. v. Dy. Supdt of Police, Vigilance and Anti Corruption Bureau**_ [2012(4) KHC 64] to substantiate his contentions. Relying on _**Natesan T.G.,**_ the learned counsel for the petitioner submits that the Crl.M.C.No.5926 of 2020 **==> picture [20 x 9] intentionally omitted <==** prosecution has to establish that the members of his family, including wife and mother, own the assets for and on behalf of the petitioner. In the absence of any material to show that the other members of his family hold the assets for and on behalf of the petitioner, the same cannot be used to conclude that he has acquired assets disproportionate to his known sources of income. 10. In _**R. Soundirarasu**_ (Supra), the Apex Court held that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income, but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the exclusive knowledge of the accused. The Apex Court held that it is for the accused to account satisfactorily for the money/assets in his hands. The Apex Court held that those questions are triable issues and the High Court while exercising jurisdiction under Section 482 is not expected to go into the veracity of those rival Crl.M.C.No.5926 of 2020 ..8.. issues. In _**State of M.P. v. Virender Kumar Tripathi**_ , on the non-exclusion of certain alleged income of the relatives, the Apex Court held that these are matters of evidence and the High Court cannot consider those aspects while exercising jurisdiction under Section 482 Cr.P.C. 11. I am of the considered view that the issues projected by the petitioner, that is some of the assets he had acquired prior to the check period were not taken into account and the prosecution has not produced any materials to show that the petitioner’s relatives including wife and mother possess certain assets for and on behalf of him, are to be considered at the time of trial. The petitioner is at liberty to produce evidence in support of his contentions. This Court finds that this is not a fit case where this Court can exercise its jurisdiction under Article 482 of Cr.P.C. to quash the final report. Therefore, the Crl.M.C. lacks merits and is accordingly dismissed. The Trial Court shall dispose of the matter as Crl.M.C.No.5926 of 2020 **==> picture [20 x 9] intentionally omitted <==** expeditiously as possible, at any rate, within a period not less than six months from the date of production of a certified copy of this order. It is made clear that the trial Court is at liberty to approach this Court seeking extension of time, if required. Sd/- **K.BABU, JUDGE** kkj Crl.M.C.No.5926 of 2020 ..10.. ## **`APPENDIX OF CRL.MC 5926/2020`** ## `PETITIONER ANNEXURES` - `ANNEXURE A1 CERTIFIED COPY OF THE FIR AND FIS IN VC 02/2013 OF THE VACB SPECIAL CELL ERNAKULAM DATED 7.1.2013.` - `Annexure A24 TRUE COPY OF THE VALUATION CERTIFICATE DATED 09-10-2013 OF THE RESIDENTIAL BUILDING OF THE PETITIONER` - `ANNEXURE A2 TRUE COPY OF THE SPECIAL PROPERTY STATEMENT SUBMITTED BY THE PETITIONER.` - `ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT IN VC 02/2013 OF THE VACB SPECIAL CELL ERNAKULAM DATED 3.1.2016.` - `ANNEXURE A4 TRUE COPY OF THE FIXED DEPOSIT DETAILS ISSUED BY THE SECRETARY AVINISSERI SERVICE CO-OP BANK.` - `ANNEXURE A5 TRUE COPY OF THE FIXED DEPOSIT DETAILS ISSUED BY THE PUNJAB NATIONAL BANK.` - `ANNEXURE A6 TRUE COPY OF THE FIXED DEPOSIT DETAILS ISSUED BY SECRETARY URAKOM SERVICE COOP BANK.` - `ANNEXURE A7 TRUE COPY OF THE MONTHLY DEPOSIT SCHEME (A/C NO.169) IN AVINISSERI SERVICE CO-OP BANK.` - `ANNEXURE A8 TRUE COPY OF THE MONTHLY DEPOSIT SCHEME (A/C NO.1924) IN AVINISSERI SERVICE CO-OP BANK.` - `ANNEXURE A9 TRUE COPY OF THE KSFE SUGAMA DEPOSIT A/C NO.537.` - `ANNEXURE A10 TRUE COPY OF THE SB A/C NO.9323 IN UNION BANK OF INDIA.` - `ANNEXURE A11 TRUE COPY OF THE MONTHLY DEPOSIT SCHEME (A/C NO.20) IN AVINISSERI SERVICE CO-OP BANK.` - `ANNEXURE A12 TRUE COPY OF THE KSFE SUGAMA DEPOST A/C NO.218.` - `ANNEXURE A13 TRUE COPY OF THE MONTHLY DEPOSIT SCHEME (A/C NO.54) IN AVINISSERI SERVICE CO-OP BANK.` Crl.M.C.No.5926 of 2020 ..11.. - `ANNEXURE A14 TRUE COPY OF THE PASS BOOK IN A/C NO.2971 OF AVINISSERI SERVICE CO-OP BANK.` - `ANNEXURE A15 TRUE COPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE KL-08-W 2727.` - `ANNEXURE A16 TRUE COPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE KL-08-P 3788.` - `ANNEXURE A17 TRUE COPY OF THE DOCUMENT NO.5043/1/2004 (EB-28(A) IN THE CHARGE SHEET).` - `ANNEXURE A18 TRUE COPY OF THE DOCUMENT NO.3484/2004 (EXB-28(D) IN THE CHARGE SHEET).` - `ANNEXURE A19 TRUE COPY OF THE LEDGER ACCOUNT OF INDUS MOTORS COCHIN (EXBT-26 IN FINAL REPORT).` - `ANNEXURE A20 TRUE COPY OF THE E-MAIL COMMUNICATION FROM TVS TO INSPECTOR OF VIGILANCE (EXBT 27 IN FINAL REPORT).` - `ANNEXURE A21 TRUE COPY OF THE SALE INVOICE FOR SALE OF GOLD ORNAMENTS (EXBT-14 IN FINAL REPORT).` - `ANNEXURE A22 TRUE COPY OF THE SEARCH MAHASAR (EXBT4(III) IN THE FINAL REPORT).` - `ANNEXURE A23 CERTIFIED OF THE ORDER DATED 22.11.2018 IN CC NO.03/2016 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE THRISSUR.`