Sethu Madhavan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945** **CRL.REV.PETITION NO. 798 OF 2022 AGAINST THE ORDER DATED 23.08.2022 IN CMP NO.840/2019 IN CC 387/2013 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-V (SPECIAL COURT FOR MARK LIST CASES, THIRUVANANTHAPURAM CRIME NO.427 OF 2008 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/1ST ACCUSED:** **SETHU MADHAVAN AGED 59 YEARS S/O MADHAVAMENON, SRI MADHAVAM VEEDU, AADHITHYANAGAR, KOLAZHI VILLAGE, THRISSUR DISTRICT, PIN – 680581. BY ADVS. C.P.SAJI AHALYA PRAKASH K.V. RIJO DOMY** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031.** **2* ANIL KUMAR P. T.C.NO. 8/329(2), DWARAKA, NEAR BETHLEHEM SCHOOL, SREEKARYAM, THIRUVANANTHAPURAM-695044.** ***IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 25.1.2023 IN CRL.M.A.1/2023 IN CRL.R.P. 798/2022** **R1 BY SMT SEENA C., PUBLIC PROSECUTOR R2 BY ADV G.S.REGHUNATH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 04.01.2024, THE COURT ON 11.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.Rev.Petition No.798 of 2022 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Rev.Petition No.798 of 2022 ----------------------------------------------------------Dated this the 11[th] day of January, 2024** ## **O R D E R** The petitioner is the 1[st] accused in C.C.No.387 of 2013 before the Judicial Magistrate of the First Class-V (Special Court for Mark List Cases), Thiruvananthapuram. He along with another was charged for the offences punishable under Sections 406, 409, 418, 420, 465, 468 and 471 read with Sections 34 and 120B of the Indian Penal Code, 1860 (IPC). The 2[nd] accused expired. The petitioner filed C.M.P.No.840 of 2019 seeking discharge. The learned Magistrate as per the order dated 23.08.2022 dismissed that petition. Aggrieved thereby, the petitioner has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. The de facto complainant was impleaded as additional 2[nd] respondent as per the order dated 25.01.2023 in Crl.M.A.No.1 of 2023. 3 Crl.Rev.Petition No.798 of 2022 3. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent. 4. The final report alleging commission of the aforesaid offences was filed setting out the following allegations: The de facto complainant who is the 2[nd] respondent proposed to purchase two flats in the apartment complex being constructed by the 2[nd] accused. Accused Nos.1 and 2 hatched a conspiracy to create forged documents and deceptively extract money from the 2[nd] respondent. In order for that end, the petitioner, even before executing a power of attorney by the 2[nd] respondent in favour of his father who is the 2[nd] witness, got agreements for sale executed by the 2[nd] witness in relation to the sale of such apartments and several other blank papers. The 2[nd] witness was brought to the Vazhuthacaud Branch of the HDFC Bank for that purpose on 03.10.2006. Sale deeds were executed on 07.11.2006. However, on 31.10.2006, Rs.5,85,000/- in loan No.31194564 4 Crl.Rev.Petition No.798 of 2022 and Rs.4,50,000/- in loan No.31193143 were disbursed to the 2[nd] accused. Although the agreement was to deliver the completed apartments within one month, the assurance was not complied with. Before completion of the construction, the petitioner who was the Manager of the Thrissur branch of the HDFC bank, disbursed whole amount to the 2[nd] accused, in total disregard to the terms of the agreement. Thereby, the 2[nd] respondent was allegedly deceived and cheated. 5. The learned counsel for the petitioner would submit that the charge alleged against the petitioner would only be groundless for more than one reason; the case of the prosecution that the agreements for sale dated 03.10.2006 were executed at Thiruvananthapuram is quite incorrect and improbable. The investigation conducted by the Sub Inspector of Police, Museum Police Station, Thiruvananthapuram is, therefore, illegal. The court at Thiruvananthapuram has no jurisdiction to try the case. The petitioner was the Manager of Thrissur Branch of HDFC Bank. The loan was sanctioned and the amounts disbursed to the builder on the request and 5 Crl.Rev.Petition No.798 of 2022 instructions of the 2[nd] respondent. None of the allegations in the final report concerning the petitioner is true. The written agreements were executed between the 2[nd] witness and the 2[nd] accused. No criminal act can be attributed to the petitioner for, he did not have any role in the construction and delivery of the flats. It is further contended that the attempt of the 2[nd] respondent is to drag the bank into the criminal case and thereby to avoid payment of the loan amount. 6. A few contentions, such as, the construction of the building was completed and the apartments were already delivered to the 2[nd] respondent, the petitioner has absolutely no role in the allegation that cost of the flats were deceptively enhanced, etc. Those contentions, however, have no much relevance insofar as the plea of the petitioner for discharge is concerned. 7. Similarly, the learned counsel for the 2[nd] respondent would submit that the property, where the apartment complex was being constructed, was subjected to other liabilities and that the building was not yet assessed by 6 Crl.Rev.Petition No.798 of 2022 the local authority. No electricity and water connection were availed so far. But, the said submissions are not on the basis of any fact or allegations contained in the prosecution records, but based on extraneous documents. The said contentions of the learned counsel for the 2[nd] respondent cannot be countenanced in the light of the law laid down by the Apex Court in **State of Orissa v. Debendra Nath Padhi [(2005)** ## **1 SCC 568].** 8. Going by the allegations in the final report, the agreements between the 2[nd] respondent and the 2[nd] accused concerning the sale of two flats in Veeramani Deluxe Apartments in Guruvayoor were executed on 3.10.2009.. The case of the prosecution is that ‘M’ Flat was agreed to be sold for Rs.19 lakhs and ‘F’ Flat for Rs.16 lakhs. In terms of the understanding, the 2[nd] respondent paid Rs.15 lakhs to the 2[nd] accused on 24.09.2006. Rs.9 lakhs was towards the cost of ‘M’ Flat and Rs.6 lakhs was towards the cost of ‘F’ Flat. The 2[nd] respondent was assured to arrange loans through HDFC Bank for the remaining amount of sale consideration. The 2[nd] 7 Crl.Rev.Petition No.798 of 2022 respondent was employed abroad and therefore a power of attorney was executed in favour of his father, the 2[nd] witness, for the purpose of executing documents in relation to the transaction and the loan. A power of attorney was executed on 02.11.2006 and the same was sent to the Thrissur Branch of the HDFC Bank. It is alleged that much prior to that on 03.10.2006, the 2[nd] witness was persuaded by the petitioner and the 2[nd] accused to reach Vazhuthacaud, Thiruvananthapuram Branch of the HDFC Bank and when reached there, he was made to execute two agreements for sale dated 03.10.2006. 9. Annexures A2 and A3 are copies of the aforesaid agreements. The prosecution has an allegation that on the said date the 2[nd] witness was made to sign blank papers also. The 2[nd] respondent would contend that his father was not sufficiently educated and on believing the words of the Manager of the Vazhuthacaud Branch of the Bank, he had signed the agreements as well as blank papers. The further allegation of the prosecution is that in total disregard to the 8 Crl.Rev.Petition No.798 of 2022 understanding between the 2[nd] respondent and the 2[nd] accused, value of ‘M’ Flat was stated in the agreement as Rs.22 lakhs. 10. Schedule-C to the agreements stipulates the dates for payments. The loan amount was to be paid to the 2[nd] accused at various stages of the construction upto the completion. The allegation is that the petitioner with a dishonest intention made payment of whole of the loan amounts to the 2[nd] accused immediately and before completion of even the structure. The learned counsel for the 2[nd] respondent by highlighting the aforesaid facts, urged that materials produced by the prosecution certainly make out a case against the petitioner as also the 2[nd] accused. 11. Annexures A2 and A3 are the agreements for sale executed on 03.10.2006. The case of the prosecution is that these documents were executed at Vazhuthacaud Branch of HDFC Bank and therefore the Museum Police Station, Thiruvananthapuram had jurisdiction to investigate into the matter. Except execution of Annexures A2 and A3, and signing 9 Crl.Rev.Petition No.798 of 2022 of blank papers, none of the offending acts was committed at Thiruvananthapuram. The learned counsel for the petitioner submitted that execution of Annexures A2 and A3 at Thiruvananthapuram was highly improbable. It is accordingly contended that the police as also the court at Thiruvananthapuram did not have jurisdiction over the subject matter and the petitioner is liable to be discharged. 12. The stamp papers for executing Annexures A2 and A3 were seen purchased from a vendor at Kottappadi in Thrissur. It is pointed out that using such stamp papers, the agreements could not be executed in Thiruvananthapuram on the same day and therefore the case of the prosecution is quite improbable. The definite version of the de facto complainant and the 2[nd] witness, who are son and father, is that the 2[nd] witness was brought to Vazhuthacaud Branch of HDFC Branch and the said documents were got executed. When the de facto complainant and his father, who actually had executed Annexures A2 and A3, state that the said agreements were executed at Thiruvananthapuram, it is not 10 Crl.Rev.Petition No.798 of 2022 possible at the stage of framing charge to take a different view. 13. In **Sanjay Kumar Rai v. State of Uttar Pradesh and another [AIR 2021 SC 2351]** , the Apex Court held that a court at the stage of framing charge has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The observation in the above regard is the following:- “It is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on.” Following the said principle of law, this Court in **Yohannan** ## **M.M. and another v. State of Kerala [2019 (5) KHC 908]** held that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused 11 Crl.Rev.Petition No.798 of 2022 committed the offence, then it is a case of no sufficient ground for proceeding with the trial. 14. The definite version of the de facto complainant and the 2[nd] witness is that agreements for sale were executed at Thiruvananthapuram. That evidence cannot be approached critically to find that the said version is incorrect or impossible. The court at the time of framing charge is not expected to take judicial notice regarding such a disputed question of fact. That is a matter for evidence. Therefore, the said contention of the petitioner cannot be accepted. 15. In **State of Bihar v. Ramesh Singh [AIR 1977 SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi** 12 Crl.Rev.Petition No.798 of 2022 ## **Parishad v. Dilip Nathumal Chordia and another [(1989)** **1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of** **India v. Prafulla Kumar Samal and another [(1979) 3** **SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty** **v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 16. In **Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** the Apex Court held that the judge who 13 Crl.Rev.Petition No.798 of 2022 considers a question where a charge is liable to be framed is not a mere Post office to frame the charge at the behest of the prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/ 1113/2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 17. The essential allegations against the petitioner is that at his instance, the Branch Manager of HDFC Bank, Thiruvananthapuram got agreements for sale, Annexures A2 and A3, were got executed by witness No.2 even before execution of the power of attorney. Further it is alleged that 14 Crl.Rev.Petition No.798 of 2022 making use of the blank papers got signed from the 2[nd] witness, payments were effected to the 2[nd] accused from the Thrissur Branch of HDFC Bank, where the petitioner was the Manager, in total disregard of the terms in the agreements for sale. 18. The contention of the learned counsel for the petitioner in the above regard is that the petitioner or the Bank is not a party to the agreements for sale or the subsequent sale deeds and therefore the petitioner cannot be held liable for any of the misdeeds committed by the 2[nd] accused. It is contended that only on the request of the de facto complainant, loan was sanctioned and the amounts were disbursed. The said contention, at the first instance, would appear to be correct. But, on an analysis of the agreements for sale, sale deeds, the original power of attorney executed in favour of the 2[nd] accused and the loan agreements, the deceptive way of sanctioning and disbursing the loan amounts is quite evident. 15 Crl.Rev.Petition No.798 of 2022 19. The petitioner was the Manager of the Branch, from where the loan was sanctioned and disbursed. The flats in question are the mortgage for the loan. Hence, he cannot claim ignorance of the contents of agreements for sale and the sale deeds. Annexures A2 and A3 are the agreements for sale. Annexures A10 and A11 are the sale deeds. Schedule-B in Annexures A2 and A3 are the property agreed to be sold. A similar description is added as Schedule-B to Annexures A10 and A11 sale deeds also. The said sale deeds are dated 07.11.2006. B-schedule description to Annexures A10 and A11 are similar. Annexures A10 contained the recital that “1/52 specific undivided shares over the properties described in the Schedule 'A' along with rights in and for construction of an apartment admeasuring super built up area of 400 sq.ft. in the 'VEERAMANI DELUXE APARTMENT'......” The said recital would indicate that as per the sale deeds what was conveyed is right in and for construction of an apartment. Quite conspicuously, neither the purchaser, nor his representative was seen present at the time of execution or registration of the sale deeds. 16 Crl.Rev.Petition No.798 of 2022 20. Annexures A4 and A5 are the letter sanctioning loan to the de facto complainant. Annexures A8 and A9 are the loan agreements. The loan sanctioning letters are dated 27.10.2006 and 30.10.2006. The agreements were seen executed on 03.11.2006. Going by the schedule of payments contained in Annexures A2 and A3 agreements, the last installment of the loan amount ought to be paid on completion of painting and other works, meaning thereby only on completion of the whole construction, the amount could be disbursed. 21. Annexure A12 is a memorandum of understanding dated 02.01.2008 entered into between the de facto complainant and the 2[nd] accused. The petitioner is a witness to it. From Annexure A12, it is clear that the whole of the loan amount was disbursed much prior to completion of the construction. When the stipulations were as stated above, which are certainly in the knowledge of the petitioner, disbursement of the whole amount of loan much before completion of the construction points to the deceptive 17 Crl.Rev.Petition No.798 of 2022 intention on the part of the petitioner as well. When the materials on record, _prima facie_ , establish the said facts, the petitioner cannot contend that he is entitled for a discharge. The court below, after considering the materials in detail, had dismissed the petition for discharge filed by the petitioner. When the materials on record make out sufficient grounds for framing a charge against the petitioner, this Court in the exercise of the revisional jurisdiction cannot interfere with the impugned order. Therefore, this revision can only fail. The revision petition is accordingly dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 18 Crl.Rev.Petition No.798 of 2022 ## **APPENDIX OF CRL.REV.PET 798/2022** ## **PETITIONER ANNEXURES** - **ANNEXURE A1 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.427/2008 OF MUSEUM POLICE STATION THIRUVANANTHAPURAM** - **ANNEXURE A2 A TRUE COPY OF THE SALE AGREEMENT EXECUTED BY THE FATHER OF THE DEFACTO COMPLAINANT AND 2ND ACCUSED DATED 03.10.2006 IN RESPECT OF FLAT NO. F** - **ANNEXURE A3 A TRUE COPY OF THE SALE AGREEMENT EXECUTED BY THE FATHER OF THE DEFACTO COMPLAINANT AND 2ND ACCUSED DATED 03.10.2006 IN RESPECT OF FLAT NO. M** - **ANNEXURE A4 A TRUE COPY OF THE LOAN OFFER LETTER ISSUED BY THE HDFC LTD TO THE DEFACTO COMPLAINANT FOR RS.10 LAKHS VIDE FILE NO. 311945644/RKT DATED 27.10.2006** - **ANNEXURE A5 A TRUE COPY OF THE LOAN OFFER LETTER ISSUED BY THE HDFC LTD TO THE DEFACTO COMPLAINANT FOR RS.10 LAKHS VIDE FILE NO. 311936143/SJ31 DATED 30.10.2006** - **ANNEXURE A6 A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE DEFACTO COMPLAINANT IN FAVOUR OF HIS FATHER DATED 02.11.2006** - **ANNEXURE A7 A TRUE COPY OF THE SIGNATURE ATTESTATION LETTER OF THE DEFACTO COMPLAINANT'S FATHER ISSUED BY STATE BANK OF TRAVANCORE DATED 02.11.2006** - **ANNEXURE A8 A TRUE COPY OF THE LOAN AGREEMENT EXECUTED BY THE POWER OF ATTORNEY HOLDER OF THE DEFACTO COMPLAINANT IN RESPECT OF LOAN ACCOUNT NO.311936143 DATED 03.11.2006** - **ANNEXURE A9 A TRUE COPY OF THE LOAN AGREEMENT EXECUTED BY THE POWER OF ATTORNEY HOLDER OF THE DEFACTO COMPLAINANT IN RESPECT OF LOAN ACCOUNT NO. 311945644 DATED 08.11.2006** 19 Crl.Rev.Petition No.798 of 2022 ## **ANNEXURE A10** **ANNEXURE A11** **ANNEXURE A12** **A TRUE COPY OF THE SALE DEED NO.2189/1/2006 DATED 07.11.2006 OF THE SUB REGISTRY OFFICE KOTTAPPADI EXECUTED BY THE 2ND ACCUSED IN FAVOUR OF THE DEFACTO COMPLAINANT IN RESPECT OF FLAT NO.F** **A TRUE COPY OF THE SALE DEED NO.2190/1/2006 DATED 07.11.2006 OF THE SUB REGISTRY OFFICE KOTTAPPADI EXECUTED BY THE 2ND ACCUSED IN FAVOUR OF THE DEFACTO COMPLAINANT IN RESPECT OF FLAT NO.M** - **A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 02.01.2008 MADE BY DEFACTO COMPLAINANT WITH CO PURCHASERS AND THE 2ND ACCUSED** **ANNEXURE A13 A TRUE COPY OF THE LIST OF DOCUMENTS PRODUCED BY THE PETITIONER BEFORE THE INVESTIGATING OFFICER DATED 30.03.2010** - **ANNEXURE A14** **ANNEXURE A15** - **A TRUE COPY OF THE DISBURSEMENT REQUEST FORM DATED 10.11.2006 GAVE BY THE DEFACTO COMPLAINANT'S FATHER** **A TRUE COPY OF THE DISBURSEMENT REQUEST FORM DATED 20.03.2007 GAVE BY THE DEFACTO COMPLAINANT'S FATHER**