State of Kerala v. Uthaman, S/O Sankaran; Thomas Kora, S/O Kora; Valsamma, Nedumpparambu Veedu

Crl.Appeal.1126/2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 CRL.A NO. 1126 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CC 70/2011 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM, KOTTAYAM** ## **APPELLANT/COMPLAINANT:** STATE OF KERALA REP.BY THE SPECIAL PUBLIC PROSECUTOR, (VIGILANCE AND ANTI CORRUPTION BUREAU),HIGH COURT OF KERALA, BY ADV PUBLIC PROSECUTOR ## **RESPONDENTS/ACCUSED NOS.1 TO 3:** 1 UTHAMAN, S/O. SANKARAN, UTHRADAM HOUSE,THURUTHI, CHANGANASSERY,PIN-686101 2 THOMAS KORA, S/O.KORA MAPPILE KUNNEL HOUSE, VELIYANADKUTTANAD, ALAPPUZHA, PIN-689590 3 VALSAMMA, NEDUMPARAMBU VEEDU, VELIYANADU, ALAPPUZHA, PIN 689590 BY ADVS. SRI.SIBY CHENAPPADY SRI.JACOB E SIMON SRI.R.UMASANKAR SMT.ANU GEORGE ## **OTHER PRESENT:** SPL.GP SRI.A RAJESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2020, THE COURT ON 22.06.2021 DELIVERED THE FOLLOWING: Crl.Appeal.1126/2019 2 ## **JUDGMENT** The State, which is the complainant in C.C.No.70 of 2011 of the Enquiry Commissioner and Special Judge, Kottayam, aggrieved by the judgment dated 22.05.2018 by which all the accused in the above crime were acquitted of offences alleged against them under section 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 and 420 and 468 and 120B IPC has preferred this appeal. 2. The first accused was the Village Officer of Velliyanad Grama Panchayath and the second accused was the President of the said Grama Panchayath. Third accused was a resident of the above Grama Panchayath and was the beneficiary of a housing scheme of the Panchayath known as Mythri Housing Scheme. The third accused had applied to the Kerala State Housing Board through the Village Office for financial assistance for construction of a house in her property having an extent of 3 cents in Veliyanadu Panchayath. Along with the application, she had submitted a certificate issued by the first accused affirming that neither she nor her family members had a house of their own in the village. She was included in the list of eligible candidates and accordingly was sanctioned Rs.28,000/- as housing loan. It was disbursed in three installments as per the terms and conditions of the said scheme. Crl.Appeal.1126/2019 3 3. In the meanwhile, a complaint was laid, on an allegation that the third accused gave a false certificate affirmed by the first accused that, neither she nor her family members had a house of their own, whereas, her husband owned a residential house in the same village. It was also alleged that, without constructing a building in that property, she misused the loan amount and submitted false completion stage certificate regarding the stages of construction and got the fund released in installments. On the basis of the complaint laid,crime was registered investigation was conducted.After conclusion of investigation, final report was laid by the Vigilance and Anti Corruption Bureau. Cognizance was taken and the parties were called upon to face trial in C.C.No.70 of 2011 before the Enquiry Commissioner and Special Judge, Kottayam. On the side of the prosecution, PWs.1 to 14 were examined and Exts.P1 to P28 were marked. On the side of the accused, DW1 and DW2 were examined and Exts.D1 to D6 series were marked. On an evaluation of the available materials, the court below found the accused not guilty and acquitted the accused. This is under challenge in the present proceedings at the instance of the State. Heard the learned Special Government Pleader for the Vigilance Department and the learned counsel for the accused. Examined the records. 4. The submission of the application for housing financial support, the submission of the affirmation and submission of the stage Crl.Appeal.1126/2019 4 certificates as Exts.P7(a), P7(b) and P7(c) are not in dispute. It is also an undisputed fact that, based on the above documents, a sum of the Rs.28,000/- was sanctioned as housing loan and it was released in three installments on the basis of the submission of Ext.P7 series documents. There is also no dispute that, thereafter entire amount was repaid by the third accused with interest. 5. The crux of the prosecution allegation was that, pursuant to a conspiracy entered into between the first, second and third accused, to obtain pecuniary benefits for the accused and to cause corresponding loss to the State, a false certificate was issued by the first accused affirming that the third accused did not have any house of her own. Application was forwarded by the Panchayath. Subsequently, Ext.P7 series were issued at the different stages of alleged construction and amounts were released. 6. The crux of the prosecution allegation was that the third accused did not construct any house and mis utilized amounts so obtained. 7. The defence set up by the first and second accused was that they had acted honestly and have not entered into any criminal conspiracy with the third accused. They have not caused any loss to the State nor any pecuniary advantage to the third accused. The further defence set up by the third accused was that, she owned an extent of three cents in Veliyanad Panchayath. Husband did not Crl.Appeal.1126/2019 5 possess any property of his own. The house number was allotted to her house in the name of the husband being the head of the family. 8. The court below considered the question whether the FIR was sustainable. It has come on record that Ext.P18 FIR was registered by PW8. It was admitted by PW8 that the crime was registered on the basis of an enquiry report submitted after conducting a preliminary enquiry. It was also admitted that in the preliminary enquiry it was found that, prima facie the allegations were true and the matter need tobe investigated. However, the above enquiry report was not produced in Court. Neither the complainant nor the person who received the information was examined touching upon the enquiry conducted. PW11 who recorded the complaint also did not say that he had conducted an enquiry. PW8 also submitted that he had not conducted any enquiry. The court below relied on the decisions of this Court in **Savithri v. Deputy Superintendent Vigilance and Anti Corruption Bureau 2015(3) KLT 909** and **Thankamma v. State of** **Kerala (2016(1) KLT 228).** In the former decision, this Court had held that , the first information can be registered on the basis of the written or oral complaint or any other material revealing the commission of a cognizable offence and it can even be directly received by the person who registered the FIR. Whatever be the material that revealed the commission of offence, that material must be proved in evidence as part of FIR. When the investigation is proceeded on the Crl.Appeal.1126/2019 6 basis of a FIR regarding the commission of a cognizable offence registered on the basis of a complaint revealing the commission of a cognizable offence, the complainant or the person who knows such material revealing the commission of the cognizable offence must be examined to prove the complaint. This view was followed in the later decision also where it was held that, where the information was based on a report of enquiry but such report was not produced in court along with the FIR, the FIR is really baseless and the case based on such a mushroom FIR must collapse on that limited ground alone. 9. On this preliminary ground, the court below held that FIR itself was not sustainable and hence the prosecution case has to fail. Definitely, both the above decisions are consistent to the effect that the material on the basis of which the FIR is laid should be placed for scrutiny by the court and non production of it will be fatal to the prosecution. In the absence of any contra decision, the reliance placed, by trial court on the above decisions and holding that the FIR is not sustainable does not call for any interference in appeal. 10. Ext.P17 is the sanction order issued by PW7. PW7 had admitted that, he obtained a request from the Vigilance and Anti Corruption Bureau for granting sanction and the file was forwarded to him. He deposed that, he had perused the file and after finding that there was no reason as to why the sanction shall be refused, he granted sanction. He asserted that the sanction was granted after due Crl.Appeal.1126/2019 7 application of mind. 11. However, it has come on record that the sanction was granted by Ext.P17 which is dated 27.108.2011. Even prior to that, the District Collector had considered the disciplinary proceedings against the first accused and by Ext,D3 order of 2003, found that a suspension order was not sustainable and first accused was exonerated of the charges alleged against him. Learned counsel for the accused heavily relied on this document to show that the superior authority of first accused, on a proper application of mind and after due enquiry, had found the the first accused not guilty and had exonerated him from the disciplinary proceedings. Hence, that benefit should enure to all accused, it was contended. 12. This was a crucial document in favour of the first accused which was suppressed from the notice of PW7. It was contended that, Ext.D3 was not placed for consideration before PW7. He would not have granted sanction if the above document was placed before him, was the contention of the first accused. PW7 in the course of the cross examination had admitted that, Ext,D3 was not in the file perused by him. Evidently, he had not seen Ext.D3. Non production of such a crucial document contrary to the prosecution case seems to have materially affected the decision of the sanctioning authority. Evidently, it cannot be said that, sanction was with due application of mind on the entire facts. It is also seen that, in the course of cross examination, a Crl.Appeal.1126/2019 8 suggestion was put to the accused as to the whether a draft sanction order was given to him by the VACB. He admitted that, he believes that such a draft sanction was given to him. If that be so, it is evident that, there is a possibility of a mechanical order being passed in terms of the draft order without due application of mind. Sanction in the above circumstances prima facie appears to be vitiated and the finding of the court below to that extent is also justifiable. 13. On merits, the prosecution had twin contentions. The first contention was that, the husband of the third accused had a property of his own and that, in the three cents of land admittedly owned by the third respondent situated in survey No.284 of 2013, no construction was made. The second contention was that, even without making any construction in the above 3 cents, three certificates suggesting completion of different stages of construction was obtained and produced before the authorities for getting the loan released. 14. To substantiate the first limb of the allegation that the husband had an item of property in his name, prosecution relied on the evidence of PW2 the LD Clerk of Veliyanand Grama Panchayath and PW6 the Village Officer in charge and PW9 the Secretary of the Panchayath. PW2 had produced Ext.P3 assessment register of 1993 in relation to ward No.3 and 5. Ext.P3(a) showed that a house existed in the name of Viswanathan Nedumparambu According to the witness, it was the name of the owner/occupier of the house. The point that was Crl.Appeal.1126/2019 9 sought to the introduced by the prosecution through the above witness was that the husband of the accused was the owner of the above house. In the cross examination, he admitted that, the hardboard cover of the register which was produced as Ext.P3, referred to ward No.1. However, the inside pages of the register indicated that it related to wards No.3 and 5. Though PW2 submitted that, whenever house tax was fixed, it would be endorsed by the Standing Committee Chairman. However, no such signatures were seen in Ext.P3. Th entries . Entires were also not in the handwriting of PW2. He also admitted that the owner of the house could not be ascertained only by furnishing the survey number of the property. He also admitted that, either the owner or the person in possession, and even the tenant, could remit the building tax. He also admitted that, he could not say the person who had got the entries done in Ext.P3(a). 15. Even though the witness stated that, the property covered by Ext.P3(a) was in the name of one Viswanathan Nedumparambu, he could not assert that it was the husband of the third accused. 16. PW6 was the Village Officer of the Veliyanadu Grama Panchayath. Ext.P10 was the thndaper register in relation to 3 cents in survey No.284 of 2013 in the name of the third accused. Records revealed that the registry was changed to her name on 04.11.1995. According to the witness, he had visited the property on 06.09.2010 and there was no house in that plot. Ext.P14 was the report submitted Crl.Appeal.1126/2019 10 by him. However, this version of PW6 was disbelieved by the court below for 2 specific reasons. The first one was that, even though he had prepared Ext.P14 and asserted at the time of evidence that, no house was seen in the property, that was not seen spoken to the police at the time of recording of his statement. The non disclosure of such a crucial material is fatal to the prosecution case. Another reason was that though the complainant had alleged that the house was not constructed in that 3 cents of property, evidently, witness had not measured the entire extent of property in that survey number to ascertain that Ext.P14 referred to the property belonging to the third accused covered by the title deed. PW9 was the Secretary of Veliyanadu Panchayath. Ext.P5 was the ownership certificate in relation to house No.5/94 belonging to one Viswanathan Nedumparambu. He asserted that the above person was the husband of the third accused. However, he admitted that, he could not confirm that the above person was the husband of the third accused. He had suggested a new case at the time of evidence that the money that was released to the third accused was utilized for renovating the house of the husband. He also submitted that, there was no house in the property of the third accused. However, he admitted that, he had not seen any records evidencing that Viswanathan Nedumpadath was the husband of the accused. 17. In the course of cross examination of the defacto Crl.Appeal.1126/2019 11 complainant as PW11, it was admitted by him that, there were atleast six houses in the locality with the house name of Nedumparambu. In other words, even though some vague references were there, that Viswanathan was the husband of the third accused, there was no clinging evidence to show that the property covered by Ext.P14 related to the husband of the third accused. It is also pertinent to note that, though the evidence of PW6 and PW9 was categoric that there was no construction in that property of 3 cents, this should fall to ground for the sole ground that, PW11, the defacto complainant himself had stated that, third accused had constructed atleast the foundation of the building. In the cross examination, he had admitted that, he had given a statement to the police that Valsamma had laid the foundation, showed it to the Village Officer and got the first installment of loan released. He also admitted that, on the south eastern corner of the 3 cents property, she had laid the foundation. In other words, this admission by the defacto complainant himself on whose basis the proceedings were initiated, atleast to the effect that third accused had constructed the foundation, strikes at the very allegation of PW6 that there was no construction at all in the property. To that extent, the finding of the courts below has to be confirmed. 18. Another limb of the prosecution case was that, third accused had submitted Ext.P7(a) to show that, she had completed the foundation and basement. As per the agreement, the first installment Crl.Appeal.1126/2019 12 was to be released only after the foundation and basement were constructed. The second installment could be released only after the lintel level was completed. The third and last installment would be released after the completion of building. It seems that, Ext.P7(a), P7(b) and P7(c) are the three separate completion certificates. The first installment was released on 26.05.1998. To establish that the amounts were released on the basis of the false document, two officers of the Kerala Housing Board were examined and were relied on by the prosecution. PW4 was the Account Officer of the Kerala State Housing Board. He asserted that the amounts were released on production of Ext.P7 series. In the meanwhile, they got a complaint that, certificates were false. Though the witness asserted that the certificates were false and that, amounts were released on the basis of the false certificates, PW4 admitted that, he had not conducted any physical verification to ascertain that false certificate was submitted. He also admitted that officers for inspection of the land were available in the KSHB. Normally, Assistant Engineer used to make inspection. However, to the knowledge of PW4, no such inspection was conducted. PW10 was the Executive Engineer of the Kerala State Housing Board. who also asserted that, false application was submitted by the third accused and false stage completion certificates were also produced. However he admitted that, though complaints were received regarding such certificates, no such inspection was conducted by them. Evidently, Crl.Appeal.1126/2019 13 though the Housing Board had a mechanism for ascertaining false certificates and false allegations of constructions, they were not not utilized. In other words, to substantiate the allegations on the part of the Board that false completion certificates were submitted, there is no supporting evidence. Further, in the light of the evidence of PW11, the allegation has to fall down. 19. It is true that, even though there are reasons to doubt that the money was not utilized, the prosecution has not completely succeeded in establishing the allegation. In the light of the consistent fact that there is a long way to go in between “may be true or is true”, I feel that, setting aside of a conviction in favour of the prosecution does not stand justified in the light of the shaky evidence. Hence, I am inclined to dismiss the appeal confirming the acquittal. In the result, the appeal fails and dismissed confirming the judgment of the trial court. Sd/- **SUNIL THOMAS Judge** Sbna/