Sunil Nair v. State of Kerala and G4S Secure Solutions (India) Pvt. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023/28TH AGRAHAYANA, 1945** **CRL.REV.PET NO. 387 OF 2019** **AGAINST THE ORDER IN CRLMP.857/2018 IN CC 172/2015 OF JMFC, KALAMASSERY (TEMPORARY)** ## **REVISION PETITIONER/ACCUSED NO.1:** **SUNIL NAIR, AGED 46 YEARS, S/O. PARAMESWARAN JAYACHANDRAN NAIR, GOKULAM ROAD, BUNDAM ROAD BHAGAM, THYKOODAM KARA, POONITHURA VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. MANU TOM SRI.K.R.JITHIN SRI.BALU TOM SRI.JERRY VARGHESE SRI.JOHNY GEORGE** ## **RESPONDENTS/COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2* G4S SECURE SOLUTIONS (INDIA) PVT. LTD., 5/13, 1ST MAIN ROAD, VASANTH NAGAR, NEAR KODAVA SAMAJA, OPP. CANARA BANK, BANGLORE, PIN - 560052** ***ADDL. R2 IMPLEADED AS PER ORDER DATED 08.04.2019 IN CRL. MA 3/2019) R1 BY SMT SEENA C., PUBLIC PROSECUTOR R2 BY ADV P RADHIKA RAJASEKARAN JACOB G PALLATH NAVEEN T U GEO PAUL SANU MATHEW C R PRAMOD** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 05.12.2023, THE COURT ON 19.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.387 of 2019 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.387 of 2019 ----------------------------------------------------------Dated this the 19[th] day of December, 2023 O R D E R** The petitioner is the 1st accused in C.C.No172 of 2015 on the files of Judicial Magistrate of the First Class, Kalamassery. There are three accused in the case. The Sub Inspector of Police, Kalamassery Police Station, filed final report that the accused have committed the offences punishable under 403, 405, 406, 408, 415, 420, 460, 468, 471 and 477 read with Section 34 of the Indian Penal Code, 1860 (IPC). the petitioner filed C.M.P.No.857 of 2018 seeking discharge. The 2nd accused also filed a similar petition. Both those petitions were dismissed by the learned Magistrate as per the order dated 11.01.2019. The petitioner challenges correctness, legality and propriety of the said order in this Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3 Crl.R.P.No.387 of 2019 3. The learned counsel for the petitioner would submit that the final report was filed with a few allegations, but without producing any materials sufficient to prove the allegations. It is his contention that no proper investigation was conducted, evidence required to prove the allegation of the breach of trust, misappropriation, cheating, creation of false documents, etc. is proposed in the final report and that the five witnesses, including the investigating officer cited by the prosecution, do not have any direct knowledge about the acts allegedly committed by the accused, particularly, the 1[st] accused. The learned counsel accordingly would submit that the charge against the petitioner would only be groundless. 4. The learned Public Prosecutor, on the other hand, would submit that all the documents relevant and required to prove the allegations of misappropriation and creation of false documents with a view to defraud and cheat the employer have been brought on record and therefore there is sufficient reason to proceed against all the accused. It is submitted that number of witnesses cited is not the relevant aspect, but 4 Crl.R.P.No.387 of 2019 whether the proposed evidence would be sufficient to prove the charge what that matters. It is pointed out that the unauthorised spending and misappropriation of various amounts by creation of forged documents are quite evident from the documents itself and therefore it is unnecessary to cite every witness concerning each such document. Accordingly, the learned Public Prosecutor would canvass that the impugned order does not suffer from any infirmity. 5. The 1[st] accused was the Manager General Operations, the 2[nd] accused was the Accounts Manager and the 3[rd] accused was the Regional Head at the Regional Office at Ponekkara of G4S Secure Solutions (India) Pvt.Ltd. The allegations are that in the audit of the accounts of the said office, several instances of manipulation of accounts, creation of false documents, vouchers, receipts, etc. and misappropriation of various amounts were found during the period from 28.02.2012 till 29.05.2013. It is alleged that a total amount of Rs.23,19,800/- was transferred from the company account to the bank account of the 1st accused 5 Crl.R.P.No.387 of 2019 through various transactions from 07.02.2012 till 07.08.2012. Various fake vouchers were created regarding the expenditure of the said amount and the same was misappropriated. It is further alleged that accused Nos.1 and 3 with the assistance of the 2nd accused forged fake bills and vouchers and withdrew an amount of Rs.87,62,103/from the company account during the period from 28.02.2012 to 29.05.2013. The fake bills and vouchers were signed by the accused knowing them to be genuine. There was a deficit in the statement of accounts of Rs.86,103/-. The accused had forged voucher for that amount in the name of witness No.4, who was the Rostering Executive in the company. The further allegation is that the 2nd accused grabbed Rs.87,225/- under the guise of payment of rent and in that regard false documents were created. They have also misappropriated amounts on the pretext of payment of rent for the air conditioners and laptops. The total amount thus misappropriated has been estimated as Rs.29,59,155/-. 6 Crl.R.P.No.387 of 2019 6. Witness No.1 is the Assistant Vice President (Quality) of G4S Secure Solutions. He has filed a complaint before the Magistrate regarding the allegations against the accused, which was forwarded for investigation. After such an investigation, the final report was filed. From his statement before the police and also the complaint, it is evident that he has no direct knowledge about the allegations of forging documents and misappropriation of various amounts levelled against the accused persons. As far as the petitioner is concerned, the allegations are that various amounts were transferred from the account of the company to his personal account. It is alleged that fake vouchers were created with a view to deceive the company that such amounts were spent for the purpose of the company. The other allegations against the petitioner is that he connived accused Nos.2 and 3 inasmuch as, he also signed the vouchers to support various amounts said to have been misappropriated. The allegations as regards creation of a false voucher in the name of the 4[th] witness and also in relation to payment of rent for the 7 Crl.R.P.No.387 of 2019 building, laptop and air conditioners, are essentially against accused Nos.2, who was in charge of such matters. 7. Witness No.2, Nagraj, was the person, who conducted the audit. The report of audit is not produced. But the vouchers said to have been forged are seized and produced by the investigating officer. The 3[rd] witness is the successor officer of the 2[nd] accused. The 4[th] witness is the person, who signed the voucher, which was misused by the accused for substantiating the over expenditure of Rs.86,103/-. The 4[th] witness in his statement before the police stated that he had signed the voucher, but to his knowledge the 2[nd] accused has entered false entries in it and therefore the expenditure covered by the same is not genuine. 8. 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 8 Crl.R.P.No.387 of 2019 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 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 9 Crl.R.P.No.387 of 2019 cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 9. In **Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** the Apex Court held that the judge who 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. 10. In the absence of the audit report, it is not able to identify the items of expenditure allegedly falsely incurred and 10 Crl.R.P.No.387 of 2019 misappropriated. The oral testimony of the auditor or the 1st witness, who was the officer under whose supervision the Regional Office at Ponekkara was functioning would not be enough to prove the allegations that bills and vouchers in regard to the transfer of the funds from the company account to the account of the petitioner were false. Unless the person in whose name such vouchers were created is examined or a mismatch between the vouchers and the audit report is established, it is not able to prove beyond doubt that such misappropriations were occurred. Unless it is established that such expenditures were not really received by the beneficiaries, no charge of misappropriation and cheating would lie. In the absence of such evidence, channelling the amount from the company account to the personal account of the petitioner cannot be a case of misappropriation of the amount, but would be an irregular transfer of money. That would not then be a criminal offence. The evidence proposed by the prosecution is therefore insufficient to create a grave suspicion that the petitioner had committed criminal offence 11 Crl.R.P.No.387 of 2019 in regard to the alleged crediting of the amounts from the company account to his personal account. 11. The common intention in creation of false documents and misappropriation of amounts on the part of the petitioner is attributed for the reason that he also is a signatory to the vouchers and bills supporting such expenditure. Going by the allegations itself, it is seen that the 2[nd] accused was in charge of the accounts. Unless it is proved that such vouchers and bills are false, the petitioner, who signed such documents as the General Manager (Operations) in the Regional Office of the company, cannot be held responsible for a criminal charge. Only by producing the evidence to prove the allegations of creation of false bills, vouchers, etc. such offences could be proved. When no witness to prove that such documents are actually forged, there would not be evidence to prove such allegations. Similarly, in the case of payment of rent for the building, air conditioner and laptop also, no witness is cited as to when the building was vacated and to prove that no such laptop and air conditioners were availed on rent. 12 Crl.R.P.No.387 of 2019 12. Witness Nos.1 to 4, who are the employees of the company, had not stated in police that the petitioner had signed such vouchers and bills knowing such documents to be forged or manipulated. In such circumstances, even if the evidence proposed by the prosecution is accepted in toto, that would not be sufficient to establish that the petitioner misappropriated the amount said to have been credited to his personal account and also that he was a party to the alleged siphoning of various amounts on the pretext of expenditure incurred in connection with the affairs of the company. Therefore, I hold that enough material to frame a charge against the petitioner is not produced by the prosecution. The court below did not consider the materials produced by the prosecution with a view to ascertain whether such materials are enough to create a grave suspicion that the petitioner has committed the offence alleged against him. The impugned order therefore is wrong. It is liable to be set aside. 13. In the result, the Revision Petition is allowed. C.M.P.No.857 of 2015 stands allowed. The petitioner/1[st] 13 Crl.R.P.No.387 of 2019 accused in C.C.No.172 of 2015 is discharged. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 14 Crl.R.P.No.387 of 2019 ## **APPENDIX OF CRL.REV.PET 387/2019** **PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA. ANNEXURE B TRUE COPY OF THE FINAL REPORT IN FIR.160/14 FILED BY THE S.I. OF KALAMASSERY POLICE STATION BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, II, ALUVA.**