Sarath S. v. The Superintendent of Police, Central Bureau of Investigation (ACB), Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **Crl.Rev.Pet.No.1076 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CC 4/2018 OF SPE/CBI COURT, TRIVANDRUM** ## **REVISION PETITIONER/PETITIONER/2nd ACCUSED:** **SARATH.S AGED 47 YEARS S/O.DR.K.SASIDHARAN PILLAI, HOUSE NO.307, PTP NAGAR, PTP NAGAR.P.O, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT/COMPLAINANT:** **THE SUPERINTENDENT OF POLICE CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH(ACB), KOCHI-686668.** ## **OTHER PRESENT:** **SPL.PP SRI.S.S AJITHKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-10-2019, THE COURT ON 15-10-2019 PASSED THE FOLLOWING:** Crl.R.P.No.1076/19 2 ## **ORDER** The second accused, aggrieved by the dismissal of Crl.M.P.No.90 of 2019 filed by him seeking discharge under section 239 Cr.P.C from C.C.No.4 of 2018 of the Special Judge ((SPE/CBI) Thiruvananthapuram has approached this Court. 2. Prosecution allegation is that, first accused was the Principal Commissioner of Income tax, Thiruvananthapuram. The second accused was the income tax officer working at the Head quarters at Thiruvananthapuram. On 23.09.2015, the income tax authorities conducted a survey at a jewelery run by the 4[th] accused. It disclosed certain irregularities. It is alleged that the income tax authorities directed him to disclose Rs.1.5 Crores as income. Thereafter, 1[st] accused through the 3[rd] accused who was the Chartered Accountant of the 4[th] accused, conveyed to the 4[th] accused that the matter can be settled on payment of Rs.15 lakhs as illegal gratification. It is alleged that the 2[nd] accused functioned as a conduit for receiving the bribe, on behalf of the first accused. He conspired with accused Nos.1 and 4 to receive consideration. While the money was being taken to the first accused, accused Nos.1, 3 and 4 were intercepted by CBI and the money was seized. Crime was registered as RC17(A)/2015/CBI/ACB/KOCHI. After investigation, final report was laid for offences punishable under sections Crl.R.P.No.1076/19 3 7 and 12 of the Prevention of Corruption Act 1988 r/w 120B of the Indian Penal Code. 3. The crux of the allegation was that the first accused had made a demand for illicit gratification. The second accused acted as the conduit, third accused, Chartered Accountant made necessary arrangements and aided the fourth accused in meeting the first accused at his resort. Since sufficient materials could not be gathered against fifth accused, prosecution was not initiated against him. Accused 1 to 4 are facing prosecution. 4. Pending proceedings, petitioner herein filed Crl.M.P.No.90 of 2019 seeking discharge. This was dismissed by the court below holding that, there was nothing on record to show that the charge against the petitioner was groundless and that there were sufficient materials for framing of charge against the accused. The above order is assailed in this revision. 5. Challenging the impugned order, learned counsel for the petitioner contended that, prosecution has no allegation that, petitioner herein had demanded bribe or that he had accepted it. He was not present at the time of interception of other accused. He has not met the co-accused at any stage or interacted with them. It was stated that, even the stray materials that are being set up to connect the few incidents do not disclose the commission of any offence, much less by the petitioner Crl.R.P.No.1076/19 4 herein. It was further contended that the evidence of the approver cannot be used against him and it was not sufficient to inspire confidence. It was also contended that, version of the above approver is contradictory to the call records and the recorded version of the discussion and the statement given by the approver also does not correspond with the conversation as recorded by the CBI. It was further contended that, there was no indication of any misconduct. It was further contended that, materials did not satisfy the status of reliable evidence to direct the accused to face the trial. 6. Learned counsel for the petitioner extensively referred to the materials relied on by the prosecution to support his contention. It is true that the crux of the prosecution allegation is that the first accused made a demand. In fact, allegation of the prosecution is that, though two attempts were made to hand over the money by the fourth accused to the petitioner, it could not be delivered and the accused were arrested in the course of the alleged attempt. To substantiate it, learned counsel for the petitioner relied on decisions reported in **Purushothaman v. State of Kerala (SC) (2005(4) KLT 842), State v. K.Mohanachandran (IAS) and Ors. (2017(4) KHC 297), K.T.M.S.Mohd and another v. Union of India (1992(3) SCC 178), State through CBI v. Dr.Anup Kumar Srivasthava (AIR 2017 SC 3698), Sejappa v. State by Police Inspector Lokayukta, Chitradurga (AIR 2016 SC 2045), Sunkanna** Crl.R.P.No.1076/19 5 **v. State of Andra Pradesh (2016(1) SCC 713), Dashrath Singh Chauhan v. CBI - (Crl.Appeal.No.1276/2010 SC), Krishan Chander v. State of Delhi (2016(3) SCC 108), State of Punjab v. Madan Mohan Lal Verma (AIR 2013 SC 3368), Kashmira Singh v. State of M.P (AIR 1952 SC 159), Pushpangadhan v. State of Kerala (ILR 2004(3) Kerala 254) and Saijan Kumar v. CBI (2010(9) SCC 368).** 7. It was contended that, going by the nature of the allegation, the allegation, if any, against the petitioner herein stands on the same footing as that alleged against the fifth accused in the crime and he was not prosecuted. Learned counsel, to support it, relied on the decision of the Supreme Court in **State v. K.Mohanachandran (IAS) and Ors.** **(supra)** and contended that, this Court had deprecated the method of selectively proceeding against some of the accused. 8. Learned counsel for the petitioner relied on **Saijan Kumar v. CBI (supra)** to contend that there must be reliable materials to direct the accused to face the trial. Relying on **State v. S.Selvi and Another ((2018)13 SCC 455)** learned counsel for the petitioner contended that at the time of framing charge, probative value of material on record has to be gone into which proceeds on the presumption that material produced by prosecution is true, but court is not expected to go deep into the matter and hold that material produced does not warrant conviction. Moreover, if two views are equally possible and Judge is satisfied on basis Crl.R.P.No.1076/19 6 of evidence produced before him that there is some suspicion, but not grave suspicion against accused, he will be justified in discharging accused. Relying on CDR as well as statement of the fourth accused given by him in Court, learned counsel contended that, it was sufficient to hold that the charge was groundless. 9. Learned Special Prosecutor for the CBI invited my attention to the materials relied on by the prosecution to marshall the allegations against the petitioner. It seems that, prosecution is essentially relying on the call records, statement given by the approver, statement of one Manu and lastly, that of one Raju who was a driver of the revision petitioner. Extensively taking through the evidence, learned counsel asserted that the materials were sufficient to hold that charge was not groundless as provided under section 239 Cr.P.C. Hence, it was contended that, court below was perfectly justified in ordering the framing of charge. 10. The approver's evidence definitely has to stand the test of cross examination. He has given detailed statement regarding the incident that transpired. It seems that, essentially, the crux of the prosecution allegation is that, petitioner was acting as a conduit. There are indications in the material to show that he had talked to the third accused, fourth accused and had in fact met the person who was sent by the fourth accused with money. The materials supporting the discussion between the second accused and the co-accused prima facie indicates Crl.R.P.No.1076/19 7 that he was deeply involved in the transaction. 11. Having considered the materials, I am not inclined to accept the contention of the revision petitioner that allegations against him are groundless. The Court has explained the grounds on which it reached the conclusion. There is no illegality, impropriety or material irregularity in the appreciation of the material placed before the court below and in holding that, it cannot be stated at this stage that the allegations against the accused are groundless. Revision fails and is dismissed. Sbna **Sd/SUNIL THOMAS JUDGE** Crl.R.P.No.1076/19 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**TRUE**<br>**COPY**<br>**OF**<br>**F.I.R**<br>**IN**|**RC**| |---|---|---| ||**NO.17(A)/2015/CBI/COCHIN**|| |**ANNEXURE A2**|**TRUE COPY FINAL REPORT FILED IN**|**RC**| ||**NO.17(A)/2015/CBI/COCHIN**|| |**ANNEXURE A3**|**TRUE COPY OF THE LIST OF WITNESSES**|**AND**| ||**STATEMENTS OF THE 29 WITNESSES**|| |**ANNEXURE A4**|**COPY OF THE REPORT SUBMITTED BY **|**THE**| ||**JUDICIAL**<br>**FIRST**<br>**CLASS**<br>**MAGISTRATE-IV,**|| ||**THIRUVANANTHAPURAM AND THE PROCEEDINGS**|| ||**UNDER SECTION 164 CR.P.C**|| |**ANNEXURE A5**|**TRUE COPY OF THE DEPOSITION **|**OF**| ||**MR.M.K.KURUVILA WAS RECORDED ON 07.03.2017**|| |**ANNEXURE A6**|**TRUE COPY OF THE DISCHARGE PETITION FILED**|| ||**BY THE PETITIONER**|| |**ANNEXURE A7**|**TRUE COPY OF THE COUNTER FILED BY**|**THE**| ||**PROSECUTION**|| |**ANNEXURE A8**|**TRUE COPY OF TRANSCRIPTION OF CONVERSATION**|| ||**BETWEEN ACCUSED AND OTHERS PRODUCED **|**BY**| ||**PROSECUTION**<br>**BEFORE**<br>**CBI**<br>**COURT,**|| ||**THIRUVANANTHAPURAM**||