Sarath S. v. State & Central Bureau of Investigation (CBI)

Crl.M.C.No.6833/2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 012TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **Crl.MC.No.6833 OF 2019(D)** **AGAINST THE ORDER/JUDGMENT IN CC 3/2019 OF THE SPECIAL JUDGE(SPE CBI) THIRUVANANTHAPURAM ARISING FROM RC 18(A)2015/CBI/ACB/KOCHI** ## **PETITIONER/FIRST ACCUSED:** **SARATH S., AGED 48 YEARS S/O.DR.K.SASIDHARAN PILLAI, HOUSE NO.307, PTP NAGAR, PTO NAGAR P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 THE DEPUTY SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, COCHIN - 686 668.** **2 SUPERINTENDENT OF POLICE (HEAD OF BRANCH), CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, COCHIN - 686 668.** **3 CBI, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-11-2019, THE COURT ON 12-11-2019 PASSED THE FOLLOWING:** Crl.M.C.No.6833/2019 ## **O R D E R** The first accused, in CC No.3/2019 of the Special Judge(SPE CBI), Thiruvananathapuram arising from RC18(A)/2015/CBI/ACB/KOCHI, for offences punishable under sections 11,12 and 13(2) read with section 13 (1)(d) of the Prevention of Corruption Act and under Section 120 B of IPC, has approached this court to quash the FIR and the final report thereon. 2. According to the prosecution, on the basis of a reliable information, crime was registered on 5/10/2015 against the Chief Commissioner of Income Tax, Thiruvananthapuram, the petitioner herein, who was the Incometax Officer and few other persons. It was alleged that the Chief Commissioner of Income tax and the petitioner herein had entered into a criminal conspiracy to collect illegal gratification from the high value incometax assesses under their jurisdiction, on a threat that Income tax authorities had proposed to conduct search on various commercial establishments. The petitioner herein allegedly acting on behalf of the Chief Commissioner of Incometax conveyed this to the Chartered Accountant of M/s.Ramachandran Textiles and offered to settle on payment of bribe of Rs. 15 Lakhs. In the negotiation that followed, the amount was reduced to Rs. 10 Lakhs. Accordingly, illegal gratification was handed over by the managing partner of M/s. Ramachandran Textiles to the Chartered Accountant who in turn handed over the sum of Rs.10 Lakhs Crl.M.C.No.6833/2019 3 in a bag to the petitioner herein. He entrusted that amount to one Kumar. On getting information, search was conducted in the house of Kumar and a sum of Rs. 11 Lakhs was recovered. The said Kumar committed suicide thereafter. After completion of investigation, final report was laid against few persons arraying the petitioner herein as the first accused. The Chartered Accountant was arrayed as the second accused and the Managing Partner of M/s.Ramachandran Textile was arrayed as the third accused. 3. The crux of the prosecution allegation was that, the amount so collected by the petitioner from the chartered accountant allegedly on behalf of the third accused was taken in a car driven by a witness and handed over to Kumar. The Crl.M.C.is laid on a premise that the the prosecution has now set up a totally different case from that was originally alleged and has omitted to charge sheet the Chief Commissioner of Income tax and his wife, who were originally arrayed as the first and the third accused. It was contended that the case now set up is inherently improbable and even as per the prosecution case no offence under Prevention of Corruption Act , much less any offence under IPC was made out. It was contended by the learned counsel for the petitioner that the case set up by the prosecution was highly unbelievable from the facts disclosed. It was also contended that there was absolutely no evidence to connect the petitioner with the amount allegedly recovered from Kumar. It was further contended that the Crl.M.C.No.6833/2019 4 prosecution has an inconsistent case and though it was alleged that Rs.10 Lakhs was handed over by the petitioner as illegal gratification, Rs.11 Lakhs was recovered from Kumar . It was also contended that the establishment of the third accused did not fall within the jurisdiction of the petitioner herein and he was not competent to initiate assessment proceedings or any other proceedings against the third accused, under the Income Tax Act. It was contended that, even according to the prosecution money was received by the petitioner on behalf of the Chief Commissioner of Income Tax and consequently, offence alleged under section 13 (1) (d) of the Prevention of Corruption Act was not applicable to him. It was further contended that, on the basis of the available materials , no conviction was possible and no purpose wll be served by prosecuting the petitioner. 4. Opposing the application, learned Special Public Prosecutor for CBI contended that, though the investigation was launched on an allegation that the petitioner herein had demanded bribe pursuant to the conspiracy between the Chief Commissioner of Incometax officer and himself, in fact evidence gathered in the course of investigation indicated that the petitioner had set up the name of the Chief Commissioner of Income tax as a ruse to illegally extract money from the high value business men, even if they did not fall within the jurisdiction of the petitioner. He had purposely set up circumstances to make it appear that he was close to the chief commissioner of Crl.M.C.No.6833/2019 5 incometax. It was contended by the learned prosecutor that there were sufficient materials to establish the allegations. It was further contended that specific case of the prosecution was that the amount was illegally extracted by the petitioner herein and he misappropriated it and thereby he has committed an offence punishable under section 13 of the Prevention of Corruption Act. It was contended that before the court below has framed charge on the basis of the materials placed before it the prosecution cannot be quashed on the mere basis that the charge attributed in the draft charge of the prosecution does not arise from the materials placed by prosecution. 5. Learned counsel for the petitioner vehemently contended that the prosecution case does not satisfy any of the ingredients and was inherently improbable and relied on the decision reported in _**Kanwarjit Singh Kakkar v. State of Punjab (2011 (2) KLT 630(SC))**_ , to contend that offence under PC Act for corruption can arise only when there is acceptance or demand of illegal gratification . According to the counsel, since the petitioner herein was not an officer concerned of the establishment of the third accused, prosecution will not lie against him. 6. Learned counsel further relied on the decision in _**Jayaraj B.v. State of Andhra Pradesh (2014 KHC 4199)**_ to contend that mere recovery of money was not sufficient to establish an offence under section 7 of the P.C. Act, unless it was proved beyond all reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Crl.M.C.No.6833/2019 6 Learned counsel contended that this ruled out the prosecution case itself in the present case when the prosecution alleged that money was allegedly collected on behalf of the Chief Commissioner of Incometax. Learned counsel further relied on the decision of this court in _**Sangeetha v. Deputy Superintendent of Police (2018 (3) KLT 25),**_ to contend that under section 13 (1) (d), any valuable thing should have some money value or market value. Learned counsel further relied on the decision of _**Punjab and Haryana High Court in Jeet Singh v . Central Bureau of Investigation (2018 KHC 2411**_ ) to contend that mere recovery of money from the possession of the accused was not sufficient to convict accused. Relying on the parameters laid down by this court in _**Cibi Cherian v. State of Kerala and Another (2019 KHC 25)**_ it was contended that when a criminal proceeding was manifestly and inherently improbable and that the allegations made in FIR or the complaint were so absurd and inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there was sufficient evidence for proceeding against the accused, jurisdiction under section 482 IPC was liable to be invoked. 7. Prosecution is essentially relying on the evidence of CWs 1 to 3 to establish the procedure for conducting surveys by the IT officers and also that the establishment of the third accused did not fall within the jurisdiction of the petitioner herein. CW4 is projected as a crucial witness by the prosecution. He was the driver of the petitioner who had Crl.M.C.No.6833/2019 7 given details of the travel of the petitioner herein to the house of the second accused, collecting a bag doubted to contain cash, entrusting it to the petitioner herein and thereafter taking the petitioner herein along the bag to the house of Kumar. His statement, to the effect that the petitioner met Kumar at his house and thereafter while returning to the car, the bag was not with him, indicates that the bag was handed over to Kumar. CW5 is the employee of the third accused who is relied on by the prosecution to establish that the third accused had collected money from the collection account of M/s.Ramachandran Textiles on 13/10/2015. 8. Prosecution has a definite case that Rs.10 Lakhs was received as illegal gratification. CW6 is a crucial witness relied on by the prosecution, who was an employee of Ramachandran Textiles . Version spoken by her was that cash bundles collected in the establishment used to be signed by herself as well as one Pon Rama and the cash bundles recovered from the residence of the deceased Kumar carried her own signature and that of Pon Rama. This was specifically relied on to establish that the money that was drawn from the business concern has passed to the second accused, then to the petitioner herein and thereafter was handed over by the petitioner to Kumar. CW7 was another witness of the incometax authorities who was relied on by the prosecution to indicate that assessment order in respect of M/s.Ramachandran Textiles was assigned to the petitioner herein. CW- Crl.M.C.No.6833/2019 8 8 wife of Kumar was projected to depose about the close acquaintance of the petitioner herein with Kumar. 9. Referring to the materials gathered by the prosecution and in the nature of the allegations made, coupled with the facts which are sought to be disclosed through the above witness, I feel that it is too early at this stage to arrive at a conclusion that the prosecution is inherently improbable. It cannot be said that the prosecution is not supported by any materials or that the allegation against the petitioner is absolutely without any basis. The court below has to evaluate the materials and has to frame the charges. Having considered the above, I feel that the matter requires detailed consideration in evidence and the quashing of the proceedings at this stage does not arise. Accordingly, Crl.M.C.is dismissed. ## **Sd/-** **SUNIL THOMAS** dpk **JUDGE** Crl.M.C.No.6833/2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**COPY OF F.I.R. IN**| |---|---|---| |||**RC18(A)/2015/CBI/ACB/KOCHI.**| |**ANNEXURE**|**2**|**COPY OF FINAL REPORT FILED IN**| |||**RC18(A)/2015/CBI/ACB/KOCHI.**| |**ANNEXURE**|**3**|**COPY OF ORDER DATED 26/04/2018**| |||**COMMISSIONER OF INCOME TAX (AUDIT)(IN**| |||**CHARGE, KOCHI).**| |**ANNEXURE**|**P4**|**COPY OF 161 STATEMENT OF THE WITNESSES**| |||**RECORDED THE CBI IN**| |||**RC18(A)/2015/CBI/ACB/COCHIN**|