Kerala High Court
To Quash The Fir In Vigilance Case ... vs By Advs on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942
Crl.MC.No.235 OF 2019(H)
TO QUASH THE FIR IN VIGILANCE CASE NO.13/16/PKD OF THE VIGILANCE
AND ANTI CORRUPTION BUREAU, PALAKKAD AND ALL FURTHER PROCEEDINGS
THEREON AS AGAINST THE PETITIONER/1ST ACCUSED
PETITIONER:
PRAKASH JOSEPH
AGED 48 YEARS
S/O. JOSEPH, MANNOORETTONNIL HOUSE, HOUSE NO.238,
CHANDRANAGAR HOUSEING COLONY, CHANDRANAGAR P.O.,
PALAKKAD.
BY ADVS.
SRI.T.A.SHAJI (SR.)
SRI.ATHUL SHAJI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM
(REPRESENTING THE DEPUTY S.P. VIGILANCE AND ANTI
CORRUPTION BUREAU, PALAKKAD).
2 ADDL. R2. JOY KAITHARATH,
AGED 67 YEARS, S/O.ANTONY, GENERAL SECRETARY, STATE
HUMAN RIGHTS PROTECTION CENTRE, VELLIKULANGARA,
THRISSUR - 680 699.
(IMPLEADED AS ADDL.R2 AS PER ORDER DATED 21.05.2019
IN CRL.M.A.NO.3 OF 2019 IN CRL.M.C.NO.235/2019)
R2 BY ADV.JOHN K.GEORGE
SMT K B SONY -PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
18.02.2021, THE COURT ON 24.02.2021 PASSED THE FOLLOWING:
Crl.M.C.No.235/2019
2
R.NARAYANA PISHARADI, J
************************
Crl.M.C.No.235 of 2019
-----------------------------------------------
Dated this the 24th day of February, 2021
ORDER
The petitioner is the first accused in the case registered as
V.C.No.13/16/PKD by the Vigilance and Anti-Corruption Bureau
(VACB), Palakkad.
2. As per the first information report (Annexure-A), there
are four accused in the case. The first accused was the Legal
Officer and the second accused was the Managing Director of the
company 'Malabar Cements Limited'. The third accused was the
Managing Director and the fourth accused was the Executive
Director of the company 'ARK Wood and Metals Private Limited'.
3. The case is registered against the accused for the
offences punishable under Sections 13(1)(c) and 13(1)(d) read
with 13(2) of the Prevention of Corruption Act, 1988 (for short
'the Act') and Sections 409, 420 and 120B I.P.C.
Crl.M.C.No.235/2019
4. The material allegations against the accused, which
are contained in Annexure-A F.I.R, are as follows: The first and
the second accused had entered into a conspiracy with the third
and the fourth accused and pursuant to such conspiracy, the first
and the second accused acted against the interest of the
company Malabar Cements Limited (hereinafter referred to as
'the company'). The company had entered into an agreement on
18.11.2004 with the company of the third and the fourth accused
for supply of fly ash for a period of nine years. As per Clause 19
of the agreement, it was provided that any dispute arising out of
the contract shall be within the jurisdiction of the courts of
Tuticorin, from where the supplies are effected. The first accused
advised the company to institute suit against the company of the
third and the fourth accused in the Munsiff's Court, Palakkad
against invocation of bank guarantee by the third accused, on the
ground that the bank was located in Palakkad. Pursuant to the
conspiracy, the first accused instituted the suit O.S.No.555/2008
in the Munsiff's Court, Palakkad only on 22.09.2008. The
Munsiff's Court, Palakkad returned the plaint with a direction to
Crl.M.C.No.235/2019
present it before the court concerned having jurisdiction to
entertain the dispute. After return of the plaint by the Munsiff's
Court, Palakkad, the first accused misled the company and filed
an appeal before the District Court, Palakkad against the order of
the Munsiff's Court, knowing fully well that there was no scope
for an appeal. The said appeal was dismissed. Subsequently,
the first accused misled the company and the Managing Director
of the company filed a petition before the Banking Ombudsman
against the Canara Bank, Palakkad and it was dismissed on
03.03.2019. Thus, the first accused had wasted precious time
and failed to take effective steps to file suit against the company
of the third and the fourth accused in the proper court and as a
result, the bank guarantee of fifty lakhs rupees was invoked by
the third accused causing loss to the company. The first and the
second accused committed grave criminal misconduct by
knowingly delaying the filing of the suit before the court at
Tuticorin and the suit became time barred. Thus, the first and
the second accused aided the company of the third and the
fourth accused to invoke the bank guarantee, causing loss of fifty
Crl.M.C.No.235/2019
lakhs rupees and interest thereon to the company.
5. The first accused has filed this petition under Section
482 of the Code of Criminal Procedure, 1973 (for short 'the
Code') for quashing Annexure-A F.I.R in the case.
6. Heard learned senior counsel who appeared for the
petitioner and the learned Public Prosecutor and also the learned
counsel for the second respondent, who has got himself
impleaded in the case.
7. Learned senior counsel who appeared for the
petitioner submitted that it was not the duty of the petitioner to
advise the company regarding the forum for filing a civil suit.
The duty of the petitioner was only to get the opinion of the
lawyers engaged by the company and report it to the
management and act upon the instructions of the management.
Learned counsel would submit that it was not for the petitioner to
take a decision as to whether any case had to be filed or not.
The court in which a case has to be filed had to be decided by the
management and the lawyers engaged by the company. Learned
senior counsel would submit that the petitioner was exonerated
Crl.M.C.No.235/2019
from all charges in the departmental enquiry conducted against
him by the company. Learned senior counsel further contended
that, even if the entire allegations against the petitioner in the
F.I.R are accepted as true, the offences alleged against him
would not be attracted and that the present case is a classical
example of the misuse of the provisions of the Prevention of
Corruption Act.
8. Learned Public Prosecutor has submitted that, after
completing the investigation, the VACB has submitted final report
in the case in the competent court and therefore, this Court may
not consider quashing of the F.I.R.
9. The crux of the allegations against the petitioner is
that, as a Legal Officer of the company, he gave wrong advice to
the management of the company to institute the suit against
invoking of bank guarantee of fifty lakhs rupees by the company
of the third and the fourth accused and the suit was instituted
not in the proper court having jurisdiction. It is further alleged
that the petitioner advised the company to file an appeal against
the order of the Munsiff's Court, Palakkad returning the plaint
Crl.M.C.No.235/2019
and thus wasted time and that he did not file the suit in the Court
at Tuticorin which had jurisdiction over the dispute, thereby
causing loss of fifty lakhs rupees to the company. There is
considerable force in the contention of the learned senior counsel
for the petitioner that the aforesaid allegations, without anything
more, do not attract the ingredients of the offences under
Sections 13(1)(c) and 13(1)(d) of the Act and under Sections
409 and 420 I.P.C.
10. However, the VACB has now completed the
investigation of the case and filed final report in the competent
court. It is not known whether the investigating agency has
been able to collect any evidence or material against the
petitioner to connect him with the offences alleged in the F.I.R.
Without knowing the nature of the evidence and the materials
collected by the investigating agency, if any, against the
petitioner and without ascertaining the allegations in the final
report filed in the competent court and without considering the
documents and the other materials forwarded by the VACB to the
competent court along with the final report, it will not be proper
Crl.M.C.No.235/2019
for this Court now to quash the F.I.R, at a stage after completing
the investigation of the case.
11. When the investigating officer has spent considerable
time to collect the evidence and to file charge-sheet before the
competent court, further action cannot be short-circuited by
quashing the first information report itself by invoking the power
of this Court under Section 482 of the Code. The accused has to
resort to appropriate remedy against the charge-sheet filed
against him.
12. In the aforesaid circumstances, I find that the prayer
for quashing Annexure-A F.I.R cannot be allowed. The petition is
liable to be dismissed.
13. Consequently, the petition is dismissed. The petitioner
is at liberty to challenge the final report filed in the case, if he
still figures as an accused in it.
All pending interlocutory applications are closed.
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr
Crl.M.C.No.235/2019
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A TRUE COPY OF THE FIR DATED 09/07/2016
IN VIGILANCE CASE NO.13/16/PKD OF THE
VIGILANCE AND ANTI CORRUPTION BUREAU,
PALAKKAD.
ANNEXURE-B TRUE COPY OF THE LEGAL OPINION DATED
10/07/2009 OF M/S. M.K. DAMODARAN AND
ASSOCIATES.
ANNEXURE-C TRUE COPY OF THE ORDER DATED 03/04/2012
OF THE MANAGER (P&A) I/C THE COMPANY.
ANNEXURE-D TRUE COPY OF THE OFFICE ORDER DATED
03/12/2009 IN THE COMPANY.
ANNEXURE-E TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 24/05/2013 ISSUED TO THE
PETITIONER.
ANNEXURE-F TRUE COPY OF THE REPLY DATED 07/06/2013
SUBMITTED BY THE PETITIONER TO
ANNEXURE-E NOTICE.
ANNEXURE-G TRUE COPY OF THE ORDER DATED 10/06/2015
EXONERATING THE PETITIONER FROM ALL THE
CHARGES AND REVOKING THE SUSPENSION OF
THE PETITIONER.
ANNEXURE-H TRUE COPY OF THE ORDER DATED 18/01/2017
IN BAIL APPLICATION NO.6714/2016 OF
THIS HON'BLE COURT.
ANNEXURE-I TRUE COPY OF THE STATEMENT DATED
22/06/2018 FILED BY THE INVESTIGATING
OFFICER IN CRL. M.C. NO.3335/2018.
Crl.M.C.No.235/2019
ANNEXURE-J TRUE COPY OF THE JUDGMENT DATED
27/07/2018 IN CRL. MC.NO.3335/2018 OF
THIS HON'BLE COURT.
1ST RESPONDENTS' EXHIBITS :
R(a) : TRUE COPY OF THE ORDER DATED 08.07.2016
R(b) : TRUE COPY OF THE ORDER DATED 27.09.2016
R(c) : TRUE COPY OF THE ORDER DATED 07.12.2017
TRUE COPY
PS TO JUDGE
