Kerala High Court

Thomas Cherian vs The State Of Kerala on 19 February, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

     THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                              &

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

 FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                    WA.No.360 OF 2021

AGAINST THE JUDGMENT IN WP(C) 21419/2020(B) OF HIGH COURT
                OF KERALA DATEWD 8.12.2020


APPELLANT/PETITIONER:

           THOMAS CHERIAN
           AGED 68 YEARS
           ANGADISSERIL HOUSE, KALATHIKKADAVU,
           KOLLADU P.O., KOTTAYAM DISTRICT-686029.

           BY ADVS.
           SRI.VIJAI MATHEWS
           SRI.JOSEPH THEKKEKURUVANAL

RESPONDENTS/RESPONDENTS:

     1     THE STATE OF KERALA,
           REPRESENTED BY ITS HOME SECRETARY,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695001.

     2     THE ADDITIONAL DIRECTOR GENERAL OF POLICE,
           CRIME BRANCH HEADQUARTERS, PAZHAVANGADI,
           THIRUVANANTHAPURAM-695024.

     3     DEPUTY SUPERINTENDENT OF POLICE,
           DISTRICT CRIME BRANCH OFFICE,
           COLLECTORATE, KOTTAYAM-686002.


           SRI. ARAVINDAKUMAR BABU, SR. GOVT.PLEADER

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
    W.A.360/2021
                                     2



                                JUDGMENT

Dated this the 19th day of February, 2021

S. Manikumar, CJ.

Before the writ court, appellant has sought for a mandamus

directing the Additional Director General of Police, Crime Branch,

Thiruvananthapuram and the Deputy Superintendent of Police, District

Crime Branch Office, Kottayam/respondents 2 and 3 therein, to get the

actual market value of the lands, buildings, equipments sold by the

company, Roshini Seafoods Ltd., on the date of sale, and as of today,

by a State or Central Government approved Valuer before proceeding

with the investigation of the case and submitting the final report in Crime

No.1785/2015 registered in Kottayam West Police Station, investigated

by the Crime Branch, Kottayam.

2. Pending disposal of the writ petition, petitioner has sought for a

direction to the respondents therein not to submit the final report in

Crime No.1785/2015 registered in Kottayam West Police Station,

investigated by the Crime Branch, Kottayam.

3. Facts leading to filing of the writ petition are as hereunder:

"The petitioner is the Director of Roshini Seafoods Ltd., a limited company, registered in the year 1987. The petitioner is arrayed as the first accused in Crime No. 1785/2015 registered in Kottayam W.A.360/2021

West Police Station alleging offenses under sections 120B, 406, 465, 467, 468, 471 r/w 34 IPC. Crime No.1785/2015 was registered against the petitioner and 5 others based on a private complaint filed by the defacto complainant who is the wife of the former managing director of Roshini Seafoods Ltd, who died on 16.2.1998. At the time of the death of Sri. PG Radhakrishnan, the liability of the company was far exceeding its assets. The Company's issued share capital as of 31.03.1998, was assessed as Rs 59,18,150/- and the liability of the company and its associates was Rs 350 lakhs. It is submitted that as per the direction of this honourable court in Exhibit-P2 judgment the investigation in the case is entrusted to the Crime Branch. The entire allegation against the petitioner and the other accused are centered around the sale of the properties admeasuring a total extent of 78.16 acres situated in Re-Sy No.s 26/1,2,3, 27/6B1,2, 27/1A, 27/6B1, 27/6B2, 27/3, 27/4, 26/1,2,3, 28/4B, 28/1C, 28/4C, 27/5,2, 27/3, 27/4, 27/527/6B1, B2, 28/1B, 28/4A, 4B &4C sold by the Company by Document Nos. 1388/2008, 1389/2008,1886/2008, 1979/2008 and 2052/2008 of SRO Payyannur. The properties of the company were sold as per the then existing market value of the land.

It is submitted that picking one or 2 sentences from Exhibit- P2 judgment false news is spreading against the petitioner to the effect that he has misappropriated property having a value of more than 500 crores. It is submitted that the properties sold by the company in the year 2008 were subsequently purchased by the Believers Church India Trust, Thiruvalla along with plant and machinery, equipment, vehicles, etc. in the year 2017 for a total consideration of Rs.12,09,00,000 1 The present fair value of the entire property admeasuring 78.16 acres of land as per the revenue records of the Registration Department Kerala available W.A.360/2021

on their website is less than rupees 3 crores.

After the investigation is taken over by the Crime Branch the petitioner is facing questions regarding the sale of the properties of the company. The petitioner pointed out the grave mismatch in the claim of the petitioner and the figure shown in Exhibit P2 judgment and also the actual market value of the land sold by the company and requested the investigating officer to get the lands, Buildings, and Equipment sold by the company, Roshini Seafoods Ltd, valued by a State or Central Government approved Valuer before proceeding with the investigation in Crime No. 1785/2015. Petitioner had also submitted a representation to the 3 rd respondent for the said purpose but the same has not evoked any response. It appears that the investigating officer is preparing to submit the final report in the case without assessing the market value of the lands, Buildings, and Equipment, etc. sold by the company. Hence the writ is filed.

The petitioner is ready to meet the expenses for the valuation of the property."

4. Before the writ court, investigating officer has filed a statement,

as hereunder:

"Written statements filed by Baijukumar K., Dy.Supdt.of Police-I, Crime Branch, Kottayam on behalf of the 1 st respondent as directed by the Honourable High Court on 12-10-2020.

1. I am the Investigating Officer of Crime No. 508/CB/KTM/2019 (Kottayam West P.S. Crime No. 1785/2015 U/s 120 (B), 406, 465, 467, 468, 471 r/w 34 IPC) of Crime Branch, Kottayam. The above WP (C) 21419/2020 was filed by Sri. Thomas Cherian, Angadisseril House, Kalathickadavu, Kollad, Kottayam Dist. who was the defacto accused in above case.

W.A.360/2021

2. A case in Crime No.1785/2015 U/s 120 (B), 406, 465, 467, 468, 471 r/w 34 IPC was registered at Kottayam West Police Station by Sub Inspector of Police, Sri. Shajimon V.V., on 01.12.2015 on the basis of Crl. Miscellaneous petition submitted by the Smt. Beena Radhakrishnan, Mathrusmrithi, Near Union Club, Kottayam before the Honourable Judicial First Class Magistrate Court - III, Kottayam. The Complainant of this petition Sri. Thomas Cherian, Angadisseril House, Kalathickadavu, Kollad, Kottayam, (2) Muraleedharan Namboothiri, Chaithram House, Erayil Kadavu, Kottayam, (3). A.V. Divakaran S/o Vasu, Padmaragam, Vadakke Nada, Ettumanoor, (4). Anjo Jose, S/o T.T. Jose, Thachedathu House, Mass Enterprises, Kakkanadu, Kochi, (5). Smt. Anu Thomas, W/o Thomas Cherian, Kalathickadavu, Kollad, Kottayam, (6). Smt. Theresa Elizabeth Thomas D/o Thomas Cherian, Angadisseril House, Kalathickadavu, Kollad, Kottayam were arrayed as the accused in FIR.

3. The brief of the case is that, in the year of 1987 Sri. P.G. Radhakrishnan (Late), who was the husband of petitioner Smt. Beena Radhakrishnan in Cr.508/CB/KTM/2019 (Kottayam West P.S. Crime No. 1785/2015 U/s 120 (B), 406, 465, 467, 468, 471 r/w 34 1PC) along with Smt. Beena Radhakrishnan and one M.C.Joseph, started a private limited company in the name of Roshini Sea Foods Private Limited for aquaculture farming and allied activities. On 11.02.1991 Sri. Thomas Cherian, Angadisseril House, Kalathickadavu, Kollad, Kottayam (The complainant of WP (C)) being a financial adviser/Farm Organizer posted as one of the Director in the company. Initially the Managing Director Sri.P.G. Radhakrishnan, Smt. Beena Radhakrishnan Sri. M.C. Joseph, Sri M.G.Sasidharan and Smt. Leena Joseph are the W.A.360/2021

Directors and share holders of the company. On 07.10.1992 Roshini Sea Foods Private Limited Company converted to a Public Limited Company. A1 Thomas Cherian had no share holding or investment in the company.

4. For starting aquaculture activity and farming of prawns for the company P.G. Radhakrishnan bought 90 acres of land in Payyannur, Kannur District in the name of Roshini Sea Foods Limited by selling his property at Kainady in Alappuzha District and Malampuzha in Palakkad District. He took a loan of Rs.25 lakhs from Lord Krishna Bank by pledging his landed properties at Kottayam for the farming purposes in the company. The company decided to develop the farming by modernising its infrastructure. So company decided to take loan from ADAK (Agency for Development of Aqua Culture, Kerala). The condition of ADAK for providing loan for Aqua Culture farming is that they provide loan only to farmers directly, but not to the company. Hence the company formed a group of 20 persons and leased 73.25 Acres of companies land at Payyannur to those 20 persons. The 20 lease holders entered in to an agreement with ADAK on 20.11.1993 for availing a loan amount of Rs.1.40 Crore and authorised 4 directors of Roshini Sea Foods Limited P.G.Radhakrishnan, Thomas Cherian, M.C. Joseph and Suresh Jacob to receive the loan amount and execute the farming and allied activities. During that time, some financial misappropriations and fraudulent activities on the part of Al Thomas Cherian (The complainant of WP (C)) was noticed by the Director Board of the Company and subsequently he resigned from the company on 26.06.1995.

5. The farming in the new firm was not profitable due to virus decease and later a Supreme Court verdict on CRZ (Costal Regulation Zone) Violation had badly affected and also led to stop W.A.360/2021

farming of prawns. The unexpected demise of Managing Director Sri. P.G. Radhakrishnan on 16.02.1998 forced the company to stop its functioning completely. The loan taken for the development of the company from Lord Krishna Bank and ADAK remained unpaid and caused huge liability to the company.

6. Complainant in Cr. 508/CB/KTM/2019 Smt. Beena Radhakrishnan alleges that in the midst of these struggles, Thomas Cherian (The complainant of WP (C)) approached the petitioner and family by pointing out the ways to reinstate the functioning of the company and its development. Subsequently he took over the charge of the company fraudulently, by exploiting the situation of the petitioner and family. Thomas Cherian (The complainant of WP (C)) fraudulently obtained money and titles deeds of the landed property owned by the company. He conspired with Muraleedharan Namboothiri, Chaithram House, Erayil Kadavu, Kottayam and A.V.Divakaran, S/o Vasu, Padmaragam, Vadakke Nada, Ettumanoor (who are arrayed as the 2nd and 3rd accused in Crime No.1785/2015 of Kottayam West Police Station) and acquired the landed properties and shares of the company to the kith and kin of 1 st accused. By putting forged signature of the petitioner and other shareholders of the company and by preparing bogus documents without the knowledge and consent of the petitioner and other shareholders, 1st accused transferred the shares of the company to the accused persons who are his associates and beloved ones. They adopted the same modus to transfer the landed properties owned by the company to the names of the accused persons causing huge financial loss and severe mental agony to the petitioner Smt. Beena Radhakrishnan and her family, W.A.360/2021

7. As per the direction of Inspector General of Police, Kochi Range Sri. Nirmal Bose, Inspector of Police, Kottayam West Police Station, took up the investigation on 07.09.2016. During the course of investigation, statements of witnesses were recorded office room of the company was searched and documents were seized and produced before court by local police.

8. Meanwhile Smt. Beena Radhakrishnan submitted writ petition before the honourable High Court of Kerala alleging perfunctory investigation. District Police, Kottayam vide Order No.D2- 45783/2018/K Dtd.22.6.2018 entrusted the investigation of the case to the Dy Supdt, of Police, Kottayam. Dyp of Police, Kottayam took up the investigation on 05.07.2018. Dy.Supdt. of Police Kottayam submitted an affidavit before Hon'ble High Court on with a plea of handing over the case for a detailed investigation by Crime Branch,

9. On this basis the Hon'ble Court vide order in, WP(C) No.17170 of 2018 (U) instructed Director General of Police Kerala to pass necessary orders entrusting the investigation in respect of Crime 1785/2015 of Kottayam west police station to State Crime Branch. Accordingly a case in Crime No 908/19, U/S 406, 465, 467, 468, 120 (B), IPC was re-registered at Crime Branch Police station Thiruvananthapuram and vide order No.U5-173236/2019/PHQ Dated 05-12-2019 & Order No DI-9453/2019/CB-Ktm Dated 05- 12-2019 this case was entrusted to DYSP, Crime Branch Kottayam. The Local Police handed over the CD file on 11.12.2019. After perusing the CD file DYSP Crime Branch prepared a detailed plan of action in this case and recorded the statement of complainant and other witnesses in this case. During the course of investigation in Crime Branch 52 witnesses were W.A.360/2021

questioned, documents seized and produced before the Hon'ble Court.

10 The case is under investigation, a comprehensive investigation on the transactions of the land, property and shares is essential in this case. In this regard investigation is progressing. In the Writ Petition the petitioner demanded for a direction to the investigating agency to get the actual market value of the lands, buildings and equipments sold by the company, Roshini Sea Foods Limited on the date of sale and as on today by State or central Government approved valuer before proceeding with the investigation of the case and submitting final report in Cr. No.1785/2015 registered in Kottayam West Police Station investigated by Crime Branch, Kottayam. But it is not acceptable it is prerogative of the Investigation Officer under Section 156 CrPC to proceed with the investigation. The complainant being the accused person arrayed as A1, he has no powers to meddle or suggest in which way the investigation should be proceeded.

11. In this case, the Founder and the Managing Director of Roshini Sea Foods Limited, Sri. P.G.Padhakrishnan was deceased on 16.02.1998. Even though A1 Thomas Cherian exited the company on 26.06.1995, it is to be ascertained that in which way Sri. Thomas Cherian assumed the post of a Director in Roshini Sea Foods Limited in 2008. And after the assumption he sold properties approximately 68 acres of land to his daughter Treesa Elizabeth Thomas, daughter-in-law Swetha Louis, relative Praveen Baby, friend Mathew Jose and friend Josy Thomas. Sri. Thomas Cherian transferred 1,00,000 shares of deceased Sri P.G.Radhakrishnan to his name and 1,00,000 shares of deceased Sri. P.G.Radhakrishnan to the name of Thomas Cherian's wife W.A.360/2021

Anu Thomas (Annamma George) without the consent of legal heirs of Sri. P.G.Radhakrishnan on 28.09.2013. And in 2014 Thomas Cherian returned 2 lakhs shares to the name of deceased Sri.P.G.Radhakrishnan. All these aspects in this case are thoroughly investigated for expediting investigation in this case.

12. For assessing the valuation of the property involved in this case, letter was send to Village Officer, Kunjimangalam Village on 24.02.2020. In his reply vide No. 147/2020 Dtd. 12.06.2020, Village Officer intimated that, the value of buildings situated in the land involved in the case was being above 50 thousand rupees, he will submitted the combined valuation report after receiving valuation report of building from Asst. Engineer, Kunjimangalam Panchayath. And it is the prerogative of the investigating officer to avail service of any professional agency for assessing the valuation of the building and machineries involved in the case.

13 The averments made by the complainant in this petition, that the investigating officer may falsely implicate the petitioner and others in criminal case by the unnecessary pressure of complainant is baseless and false. And it is submitted to the Hon'ble Court that a fair and impartial investigation is progressing in this case. Since the investigation is not completed and progressing the apprehensions raised by the complainant is baseless. And the investigation is expedited after a comprehensive investigation."

5. Adverting to the rival contentions, by judgment dated

8.12.2020, writ court has dismissed the prayers sought for in the writ W.A.360/2021

petition. Paragraphs 3 and 4 of the said judgment reads thus:

"3. In the written statement filed by the investigating officer, it is stated that late P.G.Radhakrishnan, along with the de facto complainant and one M.C.Joseph, had established Roshini Seafoods Pvt.Ltd, with the objective of conducting aquaculture, farming and allied activities. The petitioner being the financial advisor and farm organiser was nominated as a Director. Later, Roshini Seafoods Pvt.Ltd was converted as a Public Ltd Company.

P.G.Radhakrishnan had bought 90 Acres of land in the name of Roshini Seafoods Pvt. Ltd by selling his properties at Kainadi in Alappuzha and Malampuzha in Palakkad District and had taken a loan of Rs.25 lakhs from the Lord Krishna Bank by pledging his landed properties at Kottayam. While so, petitioner resigned from the Director Board of the Company on 26.06.1995, when allegations of misappropriation and fraud were raised against him. The activities of the Company did not progress in the manner expected resulting the Company being huge financial debt. The situation worsened when P.G.Radhakrishnan, the Managing Director, died on 16.02.1998. Utilising this difficult situation faced by the family of the deceased, petitioner assumed the role of the Director in the year 2008 and thereafter, sold 68 Acres of the Company's land to his daughter and other relatives. The petitioner is also alleged to have transferred shares belonging to late P.G.Radhakrishnan fraudulently, without consent of his legal heirs. According to the investigating officer, a comprehensive investigation on the transactions pertaining to the land, buildings and shares is essential. The investigation is progressing in a proper manner and the W.A.360/2021

petitioner cannot be permitted to meddle with the investigation.

4. The manner in which investigation in a criminal case is to be conducted is the absolute prerogative of the investigating officer and the scope of interference, in exercise of the jurisdiction under Article 226, is very limited. No interference is warranted unless patent and glaring illegalities are committed by the investigating officer. I am satisfied that the investigation in the case at hand is being conducted in a proper manner and hence, the relief sought is liable to be declined.