T.V. Raphel v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935 Crl.MC.No. 691 of 2013 () -------------------------(FINAL CHARGE REPORT NO.6/2012 DATED 1.10.2012 IN FIR NO.VC20/09 TSR ON THE FILE OF THE HON'BLE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE) ## PETITIONER(S)/4TH ACCUSED: ---------------------------------- T.V.RAPHEL, S/O.THE LATE T.D.VAREED, AGED 50 YEARS, WORKING AS CIRCLE INSPECTOR OF EXCISE, EXCISE CIRCLE OFFICE, KUTHUPARAMBA, KANNUR, RESIDING PERMANENTLY AT THAIKKATTIL HOUSE DOLPHIN COLONY, VIYYUR POST THRISSUR DISTRICT 680 010. BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH ## RESPONDENTS/COMPLAINANT(S): -------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU THIRUVANANTHAPURAM - 695 033. 3. DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, THRISSUR - 680 022. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.2.2013, THE COURT ON 21-08-2013 PASSED THE FOLLOWING: Crl.MC.No. 691 of 2013 () ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-I: CERTIFIED COPY OF THE CHARGE SHEET NO.6/2012 DATED 01.10.2012 IN FIR IN VC NO.20 OF 2009 ON THE FILE OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR. ANNEXURE-II: PHOTOCOPY OF THE REPORT OF TRANSFER OF CHARGE DATED 23.1.2005. ANNEXURE-III: PHOTOCOPY OF THE LETTER DATED 16.11.2004 OF THE MANAGING PARTNER ARAMANA HOTEL TO THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. ANNEXURE-IV: PHOTOCOPY OF THE LETTER NO.XC6-472/05 DATED 22.1.2005 OF THE COMMISSIONER OF EXCISE TO THE ASST.EXCISE COMMISSIONER, THRISSUR. ANNEXURE-V: PHOTOCOPY OF THE APPLICATION DATED 16.3.2005 OF THE T.K.SAJEEVAN MANAGING PARTNER ARAMANA HOTEL TO THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. ANNEXURE-VI: PHOTOCOPY OF THE ORDER NO.XC6-472/05 DATED 28.5.2005 OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. ANNEXURE-VII: PHOTOCOPY OF THE REQUISITION DATED 15.5.2010 ALONG WITH THE ENCLOSURES OF THE PETITIONER TO THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.M.C.No.691 of 2013 ---------------------------Dated 21[st] August, 2013 ## **ORDER** The petitioner who is working as Circle Inspector of Excise presently at Koothuparamba is arraigned as the 4[th] accused in VC20/09 TSR on the files of the Court of Enquiry Commissioner and Special Judge, Thrissur. Annexure-I final report No.6/2012 was filed on 1.10.2012 against the petitioner and his co-accused alleging commission of offences punishable under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Sections 420, 468, 471 and 120(B) of the Indian Penal Code. This petition has been filed seeking quashment of Annexure-I final report to the extent it pertains to the petitioner. 2. The gist of the allegations in Annexure-I against the petitioner and his co-accused are as hereunder:- “During the year 2005, accused A4 Sri.T.V.Raphel while working as the Circle Inspector of Excise, Thrissur and accused A5 Sri.Sebastian George while working as Assistant Excise Commissioner, Thrissur and as such being public servants, with an intention to drop out deceased E.Satheeshkumar, husband of the de facto complainant Murugarselvi from the reconstitution of partnership of Aramana Bar and Restaurant, Thrissur through forged declaration dated 30.09.2004, through corrupt and illegal means, by abusing their position as public servants, for pecuniary Crl.M.C.No.691/2013 2 advantage, conspired with A1 T.K.Sajeevan, A2 T.K.Rajeevan and A3 Smt.Rukmani, as a result of the said conspiracy, on 20.03.2005 a forged deposition of Smt.Murugar Selvi W/o.Late E.Satheeshkumar, 144-145, DPF Street, Papanaicker Palayam Coimbatore is prepared by the accused to the effect that she is willing to opt out from the partnership of Aramana Bar and Restaurant, Thrissur, where her husband E.Satheeshkumar had 45% of share. On knowing this, de facto complainant Murugar Selvi approached A5 and communicated the forgery committed by the accused. A5 willfully avoid her contentions and proceeded and used the forged deposition as genuine and got the partnership deed of Aramana Bar and Restaurant reconstituted in an illegal and unlawful manner excluding Smt.Murugar Selvi and her minor child Dhina Eswar being the legal heirs of the deceased Satheeshkumar. With this reconstitution of the partnership firm through illegal manner by which complainant sustained loss of her right and her minor child's right in the partnership of the said Aramana Bar and Restaurant and corresponding undue pecuniary advantage to others by the criminal misconduct of the accused. The above said acts of the accused constitutes criminal conspiracy, abuse of official position in the capacity of public servants, criminal misconduct, forgery, cheating and using the forged documents as genuine and thereby committed the offences punishable U/s 13(2) r/w 13(1)(d) of PC Act 1988 and Section 420, 468, 471 and 120(B) IPC.” 3. I have heard the learned Senior Counsel appearing for the petitioner and also the learned Public Prosecutor. 4. It is contended by the petitioner that the allegations in Crl.M.C.No.691/2013 3 Annexure-I do not disclose the necessary ingredients to constitute the offences alleged against him and even if the entire allegations therein are taken on face value and accepted they would not disclose any cognizable offence. The allegations and the evidence collected and recorded do not disclose commission of any offence by the petitioner and in fact, they make out no case against him, it is contended. The further contentions are hereunder:- The petitioner took charge as Circle Inspector of Excise, Excise Circle Office, Thrissur on 23.1.2005 as is obvious from AnnexureII. The declaration dated 30.9.2004 made mention in the final report was therefore, obviously, obtained prior to his taking charge there. While admitting the fact that a deposition/statement dated 20.3.2005 (alleged to have been made by the defacto complainant Smt.Murugar Selvi) was obtained to the effect that herself and her minor child opted out from the partnership of Aramana Bar and Restaurant it is contended that the allegation of forgery of the handwriting and signature of Smt.Murugar Selvi in the said deposition/statement is inconsequential and absolutely irrelevant in view of the position of the relevant rule as on 20.3.2005. Going by Rule 19 of the Foreign Liquor Rules (for short `the F.L. Rules' only) obtaining such a statement/deposition was absolutely Crl.M.C.No.691/2013 4 unnecessary for the reason that as on that date previous sanction of the Excise Commissioner was not a pre-condition for transfer of licence. According to the petitioner, on 20.3.2005 Sri.T.K.Sajeevan (A1) and Smt.Rukmani (A2), the mother of the deceased partner E.Satheeshkumar, came to his office along with a lady and they introduced that lady as the wife of the deceased partner E.Satheeshkumar. The mother of the deceased Smt.Rukmani produced her identify card and the imposter produced an identity card issued by Eye Foundation, Lasik Centre (India) Pvt. Ltd. though it did not contain her photograph. In such circumstances there was no room for any suspicion of impersonation, is the contention. Rule 19(i) of the F.L. Rules on 20.3.2005, the date on which the statement/deposition in question allegedly obtained from the defacto complainant, stood as follows:- “19(i) under no circumstances shall any licence obtained under this notification be sold, transferred or subrented”. The words “without the previous sanction of the Excise Commissioner” were omitted by SRO 257/2003 with effect from 25.3.2003. In fact, it is in the said circumstances that the petitioner raised the contention that there was absolutely no necessity for obtaining such a deposition/ Crl.M.C.No.691/2013 5 statement from the defacto complainant and as such the mere fact that such a deposition/statement had been taken got no consequence or relevance as previous sanction of the Excise Commissioner was not a pre-condition for transfer of licence going by the position of law viz., Rule 19(i) of the F.L. Rules as on 20.3.2005. The words “without the previous sanction of the Excise Commissioner” which were omitted by SRO 257/2003 were re-introduced only with effect from 1.4.2005 as per SRO 293/2005 and therefore, it is the further contention of the petitioner that it would not have been in the contemplation of anybody that Rule 19 would be amended and the aforesaid words would be re-introduced in Rule 19(i) of the Rules. In such circumstances the learned Senior Counsel appearing for the petitioner submitted that the allegations in Annexure-I would not make out any offence against the petitioner and therefore, continuation of proceedings against the petitioner would be a wasteful exercise and consequently, liable to be quashed by invoking the inherent power under Section 482, Cr.P.C. The learned Senior Counsel relied on the decisions of the Hon'ble Apex Court in **Harmanpreet Singh Ahluwalia** v. **State of Pubjab ((2009) 7 SCC 712)** , **Guru Bipin Singh** v. **Chongtham Manihar Singh and Another ((1996) 11 SCC 622)** and **Punjab National Bank and Others** v. **Surendra Prasad Sinha (1993 Supp (1) SCC 499)** to buttress the said contention. Crl.M.C.No.691/2013 6 5. Per contra, the learned Public Prosecutor contended that the allegations in Annexure-I final report satisfy the ingredients to constitute the alleged offences and the sufficiency or otherwise of the evidence is not a matter for this Court to consider as sifting of the evidence is not to be done in this proceedings. It is further contended that the question is not whether as on 20.3.2005 obtaining such a deposition/statement from the defacto complainant was essential or relevant and whether the previous sanction of the Excise Commissioner was a pre-condition for transfer of the licence. According to the learned Public Prosecutor what matters is the action in obtaining such a deposition/statement that too, from a lady who impersonated as the wife of the deceased partner E.Satheeshkumar and then forwarding it to the Excise Commissioner and therefore, according to him such actions would be sufficient to connect the petitioner with the commission of the alleged offences in Annexure-I final report. In short, according to the learned Public Prosecutor the instant case is not a fit case for invocation of the inherent power under Section 482, Cr.P.C. 6. As noticed hereinbefore, the very case of the prosecution Crl.M.C.No.691/2013 7 is that the petitioner had fabricated the deposition of Smt.Murugar Selvi, the defacto complainant, to the effect that herself and her minor child opted out from the partnership of Aramana Bar and Restaurant, by forging her handwriting and signature and based on the same the partnership deed of Aramana Bar and Restaurant was reconstituted excluding the legal heirs of the deceased E.Satheeshkumar. The case of the petitioner is that on 20.3.2005 Sri.T.K.Sajeevan (A1) and Smt.Rukmani, the mother of the deceased partner E.Satheeshkumar (A3), came to his office along with a woman and introduced that lady as the wife of the deceased partner E.Satheeshkumar. Evidently, the contention of the petitioner is that at that time the mother of the deceased viz., Smt.Rukmani (A3) produced her identity card and the imposter had also produced an identity card issued by Eye-foundation, Lasik Centre (India) Pvt. Ltd. At the same time, in paragraph 5 of this petition the petitioner himself stated that the identity card produced by the imposter did not contain her photograph. When the very allegation is that the petitioner fabricated the deposition/statement in the aforesaid manner the case of the petitioner as aforesaid, is a matter of proof and even if it is proved whether it would save the petitioner from the culpability is also not a matter for this Court to consider in this proceedings. As stated earlier, the case of the petitioner is that there Crl.M.C.No.691/2013 8 was absolutely no legal requirement for obtaining such a statement/deposition from the wife of the deceased partner as on the relevant date viz., on 20.3.2005 because the words “without the previous sanction of Excise Commissioner” remained omitted by SRO 257/2003 with effect from 25.3.2003 from Rule 19 of the F.L. Rules. I am afraid, that contention also cannot be taken as a ground for terminating the proceeding instituted against the petitioner pre-maturily. Going by the very contention of the petitioner in paragraph 7 of the petition it is evident that the words “without the previous sanction of Excise Commissioner” were omitted by SRO 257/2003 from Rule 19 of the Rules with effect from 25.3.2003 and the statement/deposition in question was allegedly obtained on 20.3.2005 and those words were reintroduced as per SRO 293/2005 with effect from 1.4.2005. If that be the case, it is ununderstable as to why the petitioner had obtained a deposition/statement on 20.3.2005 whether from the defacto complainant or from anybody on getting introduced as the wife of the deceased partner E.Satheeshkumar if it was not a legal requirement and statutorily insisted as a condition for the purpose of transfer of licence. It is in this context that the re-introduction of the words “without the previous sanction of Excise Commissioner” in Rule 19(i) of the Rules with effect from 1.4.2005 as per SRO 293/2005 assumes relevance. The Crl.M.C.No.691/2013 9 contention of the petitioner is that it would not be in contemplation of anybody that Rule 19(i) of the Rules would be amended by reintroducing the aforesaid condition. The factual position obtained in this case would reveal that such a statement/deposition was taken on 20.3.2005 and within a couple of weeks the aforesaid words “without the previous sanction of Excise Commissioner” were re-introduced in Rule 19(i) of the Rules. It cannot be believed that such an amendment was made in Rule 19 of the Rules all of a sudden on a fine morning without any deliberation at all. It is common knowledge that if there was no proposal and it was not in contemplation sufficiently earlier it would not have been amended by re-introducing the aforesaid words with effect from 1.4.2005. Whether it was within the petitioner's knowledge and whether the statement/deposition was obtained with the knowledge and for what purpose are not matters to be considered in this proceedings. At any rate, the said contention of the petitioner cannot form the basis for abruptly terminating the proceedings initiated against the petitioner. In the aforesaid circumstances, the question whether there was any intention on the part of the petitioner for cheating or whether there was any criminal conspiracy are matters of evidence and at any rate, the aforesaid contentions raised on behalf of the petitioner cannot be accepted as a sufficient reason for invoking the inherent jurisdiction to Crl.M.C.No.691/2013 10 quash Annexure-I F.I.R. carrying such a serious accusation. The very case of the defacto complainant is that the petitioner had forged the deposition/statement of the defacto complainant on 20.3.2005 and later, the partnership deed of Aramana Bar and Restaurant was reconstituted without the legal heirs of Late E.Satheeshkumar. In **Harmanpreet Singh Ahluwalia's** case (supra) the allegation was one of breach of trust relating to dowry articles. There was no allegation of commission of offences punishable under Section 3 or 4 of the Dowry Prohibition Act and the couple concerned were in joint possession of those articles. Quashability of the FIR was considered and allowed taking into account such circumstances. In **Guru Bipin Singh's** case (supra) the complaint was quashed on the ground that allegations therein do not make out any case against the appellant and such other circumstances which are lacking in the instant case. In **Punjab National Bank's** case (supra) the action taken by bank authorities in terms of a security bond executed by guarantor for recovery of outstanding debt was held insufficient to constitute criminal breach of trust and accordingly, issuance of process by the Magistrate at the instance of the guarantor was held as one without application of mind and not justified. On the facts obtained in this case I am of the considered view that the petitioner cannot seek for quashment of Annexure-I relying on those decisions of the Hon'ble Crl.M.C.No.691/2013 11 Supreme Court. I am of the considered view that interfering with the proceedings instituted against the petitioner and terminating the proceedings against him would adversely affect the very prosecution case. I have no hesitation to hold that the petitioner has failed to make out a case for invocation of the inherent power under Section 482 of the Code of Criminal Procedure. In the above circumstances, this petition is liable to fail and accordingly, it is dismissed. It is made clear that the observations/ findings made hereinbefore are made solely for the purpose of disposal of the case on hand. Sd/C.T.RAVIKUMAR Judge TKS