# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943**
**CRL.MC NO. 256 OF 2021**
**AGAINST THE ORDER DATED 13.11.2020 IN CMP 509/2020 IN CRIME NO.83/2020 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA**
## **NAME AND ADDRESS OF THE PETITIONER/PETITIONER:**
VISHNU PRASAD AGED 31 YEARS S/O. S.S.INDUCHOODAN, A-26, VAISHNAVAM, MAVELIPURAM, GCDA COLONY, KAKKANAD, ERNAKULAM - 682 030. BY ADVS. J.RAMKUMAR SRI.P.J.JOSEPH JOHN
## **NAME AND ADDRESS OF THE RESPONDENTS/STATE:**
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 ASSISTANT COMMISSIONER DISTRICT CRIME BRANCH, KOCHI, PIN - 682 018. BY SMT.REKHA S, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING:
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## **R.NARAYANA PISHARADI, J**
## **************************
Crl.M.C.No.256 of 2021
------------------------------------Dated this the 10[th] day of August, 2021 -------------------------------------------
## **O R D E R**
The petitioner is the first accused in the case registered as Crime No.83/2020 of the Thrikkakkara Police Station under Section 13(1)(a) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 406, 408, 409, 465, 468, 471, 477A, 420 and 120B of the Indian Penal Code and also for offences under the Information Technology Act, 2000.
2. The prosecution case, in short, is as follows: The petitioner was the section clerk in the Disaster Management Cell of the Ernakulam District Collectorate, which was constituted for the release of money from the Chief Minister's Distress Relief Fund (CMDRF). As per the system prevalent in the cell, amount due to the victims of the flood that occurred in Kerala was being
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distributed from the CMDRF through Bill Information Management System. The petitioner, pursuant to the conspiracy hatched with the other accused, misappropriated Rs.27,73,500/by committing digital fraud during the period from 14.01.2019 to 24.01.2020.
3. During the investigation of the case, the Toyota Innova car bearing registration number KL-07-CB/1110 and the Royal Enfield motorcycle bearing registration number KL-07-CS/7000 owned by the petitioner, were seized by the investigating officer and produced before the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha.
4. The petitioner filed an application as Crl.M.P.No.509/2020 before the Special Court under Section 451 Cr.P.C for releasing the car and motorcycle to his interim custody.
5. As per Annexure-A1 order dated 13.11.2020, the Special Court allowed the aforesaid application filed by the petitioner on certain conditions. Conditions 6 to 8 mentioned in Annexure-A1 order are as follows:
_“6. The petitioner shall execute bond for Rs.5,00,000/- (Five Lakhs only) with two solvent_
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_sureties each for like sum to the satisfaction of this court._
_7. R.T.O Kakkanadu is directed to depute a Motor Vehicle Inspector, at the request of Investigating Officer, to inspect both the vehicles and to assess the value of both vehicles within 4 days of request by the Investigating Officer._
_8. The petitioner shall produce Bank guarantee equal to the value of the vehicles assessed by MVI.”_
6. Aggrieved by the order of the Special Court, imposing conditions 7 and 8 as above, the first accused has filed this petition under Section 482 Cr.P.C for modifying/deleting those conditions.
7. Heard learned counsel for the petitioner and the learned Public Prosecutor.
8. Learned counsel for the petitioner submitted that the condition imposed by the Special Court, that the petitioner shall furnish bank guarantee equal to the value of the vehicles, is harsh and unreasonable. Learned counsel for the petitioner would submit that, the petitioner is only a Clerk in a Government department, who gets only a nominal salary and he is not in a
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position to furnish the bank guarantee.
9. Learned Public Prosecutor has submitted that the petitioner is accused of misappropriating public funds to the tune of Rs.27,73,500/- during the period from 14.01.2019 to 24.01.2020 and it was during the aforesaid period that the petitioner had purchased the vehicles and therefore it is evident that he had acquired the vehicles by using the misappropriated amount. Learned Public Prosecutor would submit that, considering the aforesaid circumstance, it cannot be found that the condition regarding furnishing of bank guarantee imposed by the Special Court is harsh or unreasonable. Learned Public Prosecutor has also submitted that the petitioner is an accused in another case in which he is alleged to have misappropriated an amount of Rs.67,78,100/- from public funds.
10. In the statement filed by the investigating officer, it is mentioned as follows:
_“Investigation has revealed that he and his accomplices has misappropriated an amount of Rs.27,73,500/- between the period from 14.01.2019 to 24.01.2020. During this period he bought an Innova Car on 18.10.2019 by spending_
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_Rs.13,75,000/- (Rupees Thirteen Lakh Seventy Five Thousand only). On 18.07.2019 he bought a Royal Enfield Motor Cycle by spending Rs.1,99,903/(Rupees One Lakh Ninety Nine Thousand and Three Only). Investigation has revealed that during the period of acquisition of these vehicles he has no sufficient source of income to account for the money spent. So it is assumed in good faith that he has used the proceeds of crime from the misappropriated amount of CMDRF Fund for the purpose of buying these two vehicles._
_5. So believing in good faith that the petitioner had acquired these assets by spending the proceeds of this crime, the Investigating Officer seized Tayota Innova Car bearing Registration No. KL 07-CB-1110 and Royal Enfield bearing Registration Number KL-07-CS-7000 and their two keys each vide Mahazar dated 25.09.2020. The properties have been produced before the Hon'ble Vigilance Court Muvattupuzha in KPF 151A and KPF 15.”_
11. Ordinarily, this Court would have interfered with the order of the Special Court directing the petitioner to furnish bank guarantee equal to the value of the vehicles as a condition for releasing the vehicles to him. But, the facts of this case are very peculiar. The legality and validity of the condition regarding
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furnishing of bank guarantee imposed by the Special Court have to be considered in the background of the facts stated by the investigating officer which have been quoted earlier.
12. Misappropriation of public funds was allegedly committed by the petitioner during the period from 14.01.2019 to 24.01.2020. The Toyota Innova car was purchased by him on 18.10.2019. The Enfield Motorcycle was purchased by him on 18.07.2019. The learned counsel for the petitioner has not disputed the submission made by the learned Public Prosecutor regarding the date of purchase of the vehicles by him.
13. Learned counsel for the petitioner submitted that the petitioner is only a Clerk employed in a Government department and that he is not in a position to furnish bank guarantee as directed by the Special Court. If this submission is accepted as true, it is not explained how the petitioner acquired the car and the motorcycle worth lakhs of rupees. The very fact that, the car and the motorcycle were purchased by him during the period in which he has allegedly misappropriated huge amount of public funds, leads to a reasonable presumption that he had acquired those vehicles by using the misappropriated amount.
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14. At this juncture, it is apt to quote the words of the Apex Court in **K.Veeraswami v. Union of India : (1991) 3 SCC 655** , which read as follows:
_“If one possesses assets beyond his legitimate means, it goes without saying that the excess is out of ill-gotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary”._
15. Having considered the above facts and circumstances of the case, I find no sufficient ground to interfere with the order of the Special Court directing the petitioner to furnish bank guarantee equal to the value of the vehicles, as a condition for releasing the vehicles to his interim custody. The Crl.M.C is liable to be dismissed.
Consequently, the petition is dismissed.
(sd/-) **R.NARAYANA PISHARADI, JUDGE**
jsr
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## **APPENDIX OF CRL.MC 256/2021**
PETITIONER'S ANNEXURE
ANNEXURE A1
CERTIFIED COPY OF THE ORDER DATED 13.11.2020 IN C.M.P. NO.509/2020 ON THE FILES OF THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA.
## RESPONDENTS' ANNEXURE **:**
NIL
TRUE COPY
PS TO JUDGE
