Kerala High Court
N.M. Nahas vs State Of Kerala on 6 August, 2025
2025:KER:58673
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
CRL.MC NO. 1264 OF 2023
AGAINST THE FINAL REPORT IN FIR NO.VC 11/17/SCE DATED 30.03.2022 PENDING
ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA
PETITIONER/ACCUSED:
N.M. NAHAS
AGED 60 YEARS
S/O. LATE M. MOIDEEN, SUPERINTENDING ENGINEER (RETD.),
RESIDING AT FLAT NO.6124, PRESTIGE NEPTUNE COURT YARD,
MARINE DRIVE, KOCHI, PIN - 682018
BY ADV SRI.BABU JOSEPH KURUVATHAZHA
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
2 THE DIRECTOR
VIGILANCE & ANTI-CORRUPTION BUREAU, VIGILANCE DIRECTORATE,
THIRUVANANTHAPURAM, PIN - 695033
3 THE SUPERINTENDENT OF POLICE
VIGILANCE & ANTI-CORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM,
KOCHI, PIN - 682017
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.07.2025,
THE COURT ON 06.08.2025 PASSED THE FOLLOWING:
Crl.M.C. No. 1264 of 2023
2
"C.R"
ORDER
Dated this the 6th day of August, 2025 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash all further proceedings pursuant to Annexure-A14 Final Report in FIR No.V.C. 11/17/SCE of VACB, Special Cell, Ernakulam, now pending as C.C. No.6 of 2022 on the files of the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha. The petitioner herein is the sole accused in the above case.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the relevant materials available and the decisions placed by the learned Public Prosecutor.
3. In this matter, the prosecution allegation is that, the petitioner, who retired as Superintending Engineer, LSGD, South Circle, Thiruvananthapuram, while working as a Government servant during the period from 01.01.2006 Crl.M.C. No. 1264 of 2023 3 to 07.10.2017 had amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income and thereby committed offence punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as 'P.C. Act' for short].
4. While canvasing interference of the Final Report by way of quashment, it is submitted by the learned counsel for the petitioner that, in this case, by registering Annexure-A8 FIR as on 05.10.2017, as a result of a quick verification done earlier, the petitioner/accused alleged to have committed offences punishable under Section Section 13(1)(e) read with 13(2) of the P.C. Act and the allegation of the prosecution was that the petitioner amazed disproportionate asset to the tune of Rs.2,59,83,805/-, which is 82.80% of his total income. Aggrieved by Annexure-A8 FIR, the petitioner had filed Crl.M.C. No.7141/2017 before this Court and the same was disposed of as per Annexure-A11 order dated 09.01.2018. As per Annexure-A11 order, the grievance of the petitioner herein as regards to non consideration of Income Tax Returns submitted by the family members of the petitioner by the Crl.M.C. No. 1264 of 2023 4 Investigating Officer, before submitting the quick verification report had been addressed and finally a direction was given to the Investigating Officer to consider the Income Tax Returns and the bank statements of the petitioner and his family members before proceeding further in the matter. Pursuant to the said direction, Annexure-A12 summons was issued by the Investigating Officer directing the petitioner to appear before the Office of the Dy.S.P.-1, Special Cell Ernakulam on 23.01.2018. The petitioner appeared before the Investigating Officer and submitted Annexure-A13 representation along with 11 documents. However, without properly considering the documents produced by the petitioner, Annexure-A14 Final Report was filed alleging that the petitioner/accused amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income.
5. According to the learned counsel for the petitioner, when this matter came up for consideration before this Court, as per the order dated 29.10.2024, this Court directed the petitioner to produce Income Tax Returns for the years pertaining to 2007-2008 upto 2018-2019, with Crl.M.C. No. 1264 of 2023 5 direction to consider the same by the Investigating Officer. Even though, additional statement has been filed by the Vigilance, the grievance of the petitioner was not addressed, particularly, in the matter of calculation of the rent obtained by the petitioner and the income of his family members. Pointing out the said anomaly, a reply statement also has been filed by the petitioner.
6. In gist, the point argued by the learned counsel for the petitioner is that, the income of the petitioner from various sources, particularly, the income he derived from the rent was not properly considered by the Investigating Officer and if so, the finding of the Investigating Officer should be something different from what is alleged in the Final Report.
7. In response to this argument, the learned Public Prosecutor would submit that, since the grievance of the petitioner, as directed by this Court as per the order dated 29.10.2024 has been addressed as stated in the additional report, there is no reason to interfere with the Final Report, where materials are in abundance to go for trial. Crl.M.C. No. 1264 of 2023 6
8. It is pointed out by the learned Public Prosecutor that, in this matter, the income assessed as that of the petitioner is for the period from 2005-2017. According to the learned Public Prosecutor, the choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probabilised would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion, as held by the Apex Court in the decision reported in [1987 KHC 771 : 1987 Supp SCC 379 : 1988 SCC (Cri) 91] State of Maharashtra v. Pollonji Darabshaw Daruwalla.
9. It is also pointed out that, when non exclusion of Crl.M.C. No. 1264 of 2023 7 certain alleged income of relatives is the allegation, it could not be considered at the pre-trial stage and the same could be considered by the Special Court during the trial alone. In this regard, the learned Public Prosecutor placed decision of the Apex Court reported in [2009 KHC 6147 : 2009 (15) SCC 533 : 2011 (99) AIC 97] State of M.P. v. Virender Kumar Tripathi, wherein in paragraph No.10 it has been observed that, so far as the non - exclusion of certain alleged income of relatives is concerned, it needs to be noted that these are matters of evidence and in such matters, the decision of this Court in State of Orissa v. Debendra Nath Padhi, JT 2004 (10) SC 303 is relevant. The High Court's judgment in this aspect does not suffer from any infirmity.
10. Another decision of the Apex Court reported in [2022 KHC OnLine 6920 : 2022 KHC 6920 : 2022 (2) KLD 700 : 2022 SCC OnLine SC 1150] State through Deputy Superintendent of Police v. R.Soundirarasu , has been placed by the learned Public Prosecutor with reference to paragraph Nos.78 to 80. In paragraph Nos.78 to 80, the Apex Court held as under:
Crl.M.C. No. 1264 of 20238
78. The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to discharge the accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T. H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No. 2 herein.
79. By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case Crl.M.C. No. 1264 of 2023 9 put up by the prosecution cannot be termed as "groundless". As observed by this Court in C. D. S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.
80. S.13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of S.13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money / assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of S.239 of the CrPC. At the stage of S.239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case Crl.M.C. No. 1264 of 2023 10 put up by the prosecution is groundless.
11. Having addressed the rival submissions, at present, the grievance of the petitioner is that, the Income Tax Returns showing the income of the family members of the petitioner, particularly that of the income received by way of rent by the petitioner were not properly considered. But, according to the learned Public Prosecutor the same has been specifically considered as detailed in the additional statement.
12. Going by the additional statement, the income declared before the Income Tax authorities by the petitioner is tabled in page No.9, as under:
Assessment Income Income from Income Agricultural Tax paid year from salary house from income property other source 2005-2006 167637 19327 12000.00 13827 2007-2008 209250 17500 2008-2009 269672 109550 37740 12000.00 7294 2009-2010 347735 6837 12000.00 9360 2010-2011 405532 20000.00 14012 2011-2012 447373 78900 1220 15000.00 18056 2012-2013 602702 100950 1770 20000.00 54946 2013-2014 1064635 97779 10000.00 142916 2014-2015 1064635 97779 10000.00 142916 2015-2016 987461 127153 134481 2016-2017 1097797 168460 159227 Crl.M.C. No. 1264 of 2023 11 Total 66,64,429 7,80,571 66,894 1,11,000 7,14,535 Grand total 83,37,429.00
13. Similarly, the income declared before the Income Tax authorities by Smt.Anitha Nahas, wife of the petitioner is extracted hereunder:
Asses Income Capital Income Busines Income Agricu Tax paid sment from gain from s from ltural year house salary income other incom property source e 2007- 54394 178986 194309 6000 16198 2008 2008- 47250 35690 30867 40000 6000 Nil 2009 2009- 126960 16618 96781 122150 10000 9354 2010 2010- 49620 290705 115875 20000 26870 2011 2011- 16755 100516 547652 40000 51968 2012 2012- 356 189000 410000 40000 35918 2013 2013- 56111 462028 49000 30000 27515 2014 2014- 158460 283605 12573 2015 2015- 133478 332382 69522 15000 25900 2016 2016- 482912 33658 582039 5564 2017 2017- 626021 22800 20420 2018 1752317 1350067 582129 415927 1274111 16700 232280 0 Grand Total 55,41,551 Crl.M.C. No. 1264 of 2023 12
14. The income declared before the Income Tax authorities by Sri.Shalif M.Nahas, son of the petitioner is extracted hereunder:
Assessment Refund Income Business Income Agricultur Tax paid year from income from al income house other property source 2010-11 99061 69340 9907 2011-12 36840 314916 390 8096 2012-13 262430 37450 7646 2013-14 275990 39428 3080 7300 2014-15 Returns not filed for the assessment year 2015-16 255500 544964 186089 141333 2016-17 246400 28600 106876 10604 Total 36840 1355236 749503 365779 Grand Total 25,07,354.00
15. The income declared before the Income Tax authorities by Smt.Simna Nahas, daughter of the petitioner is extracted hereunder:
Assessmen Refund Income Business Income Agricultur Tax paid t year from income from al income house other property source 2013-14 126000 18000 2014-15 26000 168000 2015-16 175840 25120 Total 26000 4,69,840 Grand Total 46,98,400.00
16. In the additional statement, it has been Crl.M.C. No. 1264 of 2023 13 specifically submitted that, even after considering the income of the family members of the petitioner and his other source of income as stated therein, no substantial change as regards the finding of amazement of disproportionate assets by the petitioner, as alleged by the prosecution in the Final Report.
17. Going by the additional statement filed by the Deputy Superintendent of Police, VACB, Special Cell, Ernakulam, which is the summary of assessment of income of the petitioner and his family members, it could be gathered that the grievance raised by the petitioner has been addressed and according to the VACB, even after considering the income of the family members of the petitioner and his other source of income, the same would not make any substantial change in the income and expenditure of the petitioner during the check period. In fact, as rightly pointed out by the learned Public Prosecutor, non-exclusion of the Income Tax Returns filed by the family members of the petitioner and the income he derived from rent, could not be considered by the Court at the pre-trial stage and the same can be considered only during trial. Crl.M.C. No. 1264 of 2023 14
18. Similarly, the power available to a court of law to discharge an accused can be exercised based on evaluation of the prosecution materials, with a view to find out whether the prosecution materials prima facie suggest necessity of trial or atleast a strong suspicion warranting trial. Anything more is not within the domain of the Court dealing with plea of discharge and such contentions are matters of evidence, after trial. Similarly, it is the settled law that, non-exclusion of certain alleged income of the relatives of the accused is not a matter to be considered at the pre-trial stage.
19. In this case, the contention raised by the petitioner was considered by the VACB and for the reasons explained and discussed, the VACB sticks on the allegation that the accused amazed assets worth Rs.5,76,00,687.24, which is 149.22% in excess of his known sources of income. But, the accused/petitioner is disputing the said finding. In fact, non-exclusion of certain alleged income of the relatives of the accused is to be considered by the trial court during trial and pre-trial interference is absolutely unwarranted in this case, since the prosecution materials Crl.M.C. No. 1264 of 2023 15 would prima facie show the allegation, warranting trial. In view of the said finding the quashment sought for herein is liable to fail and accordingly this petition also is liable to fail.
20. In the result, this petition stands dismissed. Interim order in this matter stands vacated. It is specifically ordered that, the observations made in this order are for the purpose of considering quashment and the same have no binding effect during the trial and the Special Court shall decide the case on merits, after adducing evidence.
Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and compliance.
Sd/-
A. BADHARUDEEN JUDGE SK Crl.M.C. No. 1264 of 2023 16 APPENDIX OF CRL.MC 1264/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPIES OF THE RELEVANT PORTIONS OF STATEMENTS A, B, C AND D, SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT, PERTAINING TO THE ALLEGED INCOME OF THE PETITIONER. Annexure A2 TRUE COPY OF THE REPRESENTATION DATED 1.6.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
Annexure A3 TRUE COPY OF THE SOURCES OF INCOME OF THE PETITIONER, INCLUDING ASSETS AND EXPENDITURES FROM THE COMMENCEMENT OF HIS SERVICE, ENCLOSED ALONG WITH ANNEXURE-A2.
Annexure A4 TRUE COPY OF THE PROCEEDING NO.E19-22232/2010 DATED 24.6.2011 ISSUED BY THE 2ND RESPONDENT. Annexure A5 TRUE COPY OF THE DRAFT SENIORITY LIST OF SUPERINTENDING ENGINEERS IN LSGD, PUBLISHED BY THE CHIEF ENGINEER, LSGD, THIRUVANANTHAPURAM. Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 22.9.2017 SUBMITTED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY, LSGD AND OTHERS, WITH THE PRAYER TO PROMOTE HIM TO THE POST OF CHIEF ENGINEER.
Annexure A7 TRUE COPY OF THE ORDER DATED 28.9.2017 OF THE HON'BLE KAT IN O.A. (EKM) NO.2154/2017. Annexure A8 TRUE COPY OF THE FIR NO.VC.11/17/SCE DATED 5.10.2017 REGISTERED AGAINST THE PETITIONER. Annexure A9 TRUE COPY OF THE INCOME TAX STATEMENT FILED BY THE PETITIONER FOR THE PERIOD 2004-2005 TO 2017-2018, HIS WIFE ANITHA NAHAS FROM 2006- 2007 TO 2017-2018, HIS SON SHALIF M. NAHAS FROM 2010-2011 TO 2017-2018 AND HIS DAUGHTER SIMNA NAHAS FROM 2009-2010 TO 2017-2018. Annexure A10 TRUE COPY OF THE SELF MADE STATEMENT PREPARED BY THE PETITIONER, DETAILING THE ASSETS GAINED, AND THE EXPENSES INCURRED BY HIM, INCLUDING LOAN DETAILS, FROM JANUARY 2006 TO APRIL 2017.
Annexure A11 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT ORDER DATED 9.1.2018 IN CRL.M.C NO.7141/2017. Annexure A12 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT, SUMMONING THE PETITIONER TO APPEAR ON 23.1.2018.
Annexure A13 TRUE COPY OF THE REPRESENTATION DATED 23.1.2018 SUBMITTED BY THE PETITIONER ALONG WITH OTHERS BEFORE THE 3RD RESPONDENT.
Annexure A14 TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE
3RD RESPONDENT IN ANNEXURE A8 FIR ON
30.3.2022.
Annexure A15 TRUE COPY OF EXHIBIT 73 ENCLOSED ALONG WITH
Crl.M.C. No. 1264 of 2023
17
ANNEXURE A14.
Annexure A16 TRUE COPY OF EXHIBIT 75 ENCLOSED ALONG WITH
ANNEXURE A14.
Annexure A17 TRUE COPY OF THE PLINTH AREA RATES REGARDING
COST OF CONSTRUCTION AS ON 1.10.2012,
PUBLISHED BY THE CPWD IN ANNEXURE I AND V. Annexure A18 TRUE COPY OF EXHIBIT 120 ENCLOSED ALONG WITH ANNEXURE A14.
Annexure A19 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 27.5.2009, ENTERED IN TO BETWEEN M/S.VAISHNOVI ENGINEERS AND PETITIONER.
Annexure P20 TRUE COPY OF EXHIBIT 70 ENCLOSED ALONG WITH ANNEXURE A14.
Annexure A21 TRUE COPY OF THE STATEMENT OF IT RETURNS SUBMITTED BY THE PETITIONER APPROVED BY IT DEPARTMENT.
Annexure A22 TRUE COPY OF THE STATEMENT OF IT RETURNS SUBMITTED BY ANITHA NAHAS, THE PETITIONER'S WIFE, APPROVED BY IT DEPARTMENT.
Annexure A23 TRUE COPY OF THE STATEMENT OF IT RETURNS SUBMITTED BY SHALIF MUHAMMED, THE PETITIONER'S SON, APPROVED BY IT DEPARTMENT.
Annexure P24 TRUE COPY OF THE STATEMENT OF IT RETURNS SUBMITTED BY SIMNA NAHAS, THE PETITIONER'S DAUGHTER, APPROVED BY IT DEPARTMENT.
Annexure A25 TRUE COPY OF THE CONSOLIDATED STATEMENT OF THE IT RETURNS OF THE PETITIONER AND HIS FAMILY, BASED UPON ANNEXURES A21 TO A24.
Annexure A26 TRUE COPY OF THE CERTIFICATE NO.74/2017-DATED 14.12.2017 ISSUED BY THE CHARTERED ACCOUNTANT OF THE PETITIONER NAMELY VARGIS JACOB & ASSOCIATES.
Annexure A27 TRUE COPY OF EXT.P21, PRODUCED ALONG WITH ANNEXURE A14.
Annexure A28 TRUE COPY OF THE STATEMENT OF THE ASSET, INCOME AND EXPENSES OF THE PETITIONER AND HIS FAMILY, DURING THE CHECK PERIOD.
Annexure A29 True copy of G.O.(Rt) No.3580/2017/LSGD dated 6.11.2017 issued by the Government.
Annexure A30 True copy of the note file, pertaining to the recommendation made by the Hon'ble Chief Minister and Hon'ble LSG Minister, to promote the petitioner to the post of Chief Engineer. Annexure A31 True copy of the GST Registration Certificate of M/s Essen Builders and Quick Convenience Store, bearing one and same number, under the same proprietorship.
Annexure A32 True copy of the letter dated 14.7.1997 issued by the competent officer of the HDFC Home Loan, to the petitioner and his wife.
Annexure A33 True copy of the schedule of property (page Nos.10 and 11) pertaining to the loan Crl.M.C. No. 1264 of 2023 18 agreement dated 5.2.1997 entrusted with HDFC Home Loan by the petitioner's wife.
Annexure A34 True copy of the occupancy certificate dated 19.12.2014 issued on behalf of the Cochin Corporation.
Annexure A36 True copy of Document No.44/1/15 dated 7.1.2015 of SRO, Maradu.
Annexure A35 True copy of the age certificate dated 8.1.2018, pertaining to the age of the building bearing No.53/615 (Old No.31/159A) as 19 years.
Annexure A37 TRUE COPY OF THE DETAILS OF THE IT RETURNS SUBMITTED BY THE PETITIONER FOR THE PERIOD 2007-2008 TO 2018-2019.
Annexure A38 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE PETITIONER AND HIS WIFE PERTAINING TO A/C NO.30090976913, FOR THE PERIOD FROM 2007-2008 TO 2018-2019.
Annexure A39 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE PETITIONER PERTAINING TO A/C NO.10396756743, FOR THE PERIOD FROM 2007-2008 TO 2018-2019. Annexure A40 TRUE COPY OF THE CONSOLIDATED STATEMENT PERTAINING TO THE IT RETURNS OF THE PETITIONER FOR THE PERIOD FROM 2007-2008 TO 2018-2019, PREPARED, BASED UPON ANNEXURE A37.
Annexure A41 TRUE COPY OF THE CONSOLIDATED STATEMENT PREPARED BY THE PETITIONER, BASED UPON ANNEXURES A38 AND A39 STATEMENT OF ACCOUNT, EMPHASIZING THE RECEIPT OF RENT FOR THE FOR THE PERIOD FROM 2007-2008 TO 2018-2019.