Kerala High Court
Thomas Cherian vs Cbi Thiruvananthapuram Unit, ... on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA,
1943
CRL.MC NO. 4620 OF 2019
SEEKING TO QUASH THE COURT CHARGE DT.01.04.2019 IN
CC NO.40/2011 OF SPL.JUDGE CBI/SPE, THIRUVANANTHAPURAM
PETITIONERS/ACCUSED NOS.6 AND 7:
1 THOMAS CHERIAN,
AGED 69 YEARS
S/O. CHERIAN, CHARTERED ACCOUNTANT, RESIDING AT
ANGADISSERIL HOUSE, P. O. KOLLADU, KOTTAYAM - 686
029
2 P. D. RAJENDRAN
AGED 56 YEARS
S/O. P. K. DIVAKARAN, TYPIST, RESIDING AT
PERUNDANATHU HOUSE, P. O. AYMANAM,
KOTTAYAM - 686 015
BY ADVS.
C.S.MANU
SRI.S.K.PREMRAJ
SMT.V.SARITHA
MRS.S.SREELAKSHMY
RESPONDENT/COMPLAINANT:
CBI THIRUVANANTHAPURAM UNIT, REPRESENETED BY
SPL.PP. P.VIJAYAKUMAR (ASGI)
MALABAR HOUSE, KESTOM ROAD, T. C. 11/304,
VELLAYAMBALAM, TIRUVANANTHAPURAM - 695 003.
REPRESENTED BY ITS INSPECTOR
ASG-SRI.P.VIJAYAKUMAR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03.11.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.M.C.No.4620/2019
2
R.NARAYANA PISHARADI, J
**********************
Crl.M.C.No.4620 of 2019
-------------------------------------
Dated this the 3rd day of November, 2021
-------------------------------------------
ORDER
The petitioners are the sixth and the seventh accused in the
case C.C.No.40/2011 pending in the Court of the Special Judge
(CBI/SPE), Thiruvananthapuram.
2. As per the charge-sheet filed by the CBI in the case,
the allegation against the accused is that they have committed
the offences punishable under Sections 13(1)(d) read with 13(2)
of the Prevention of Corruption Act, 1988 and also under Sections
420, 465, 471 and 120B of the Indian Penal Code.
3. The case relates to loan transactions conducted in the
State Bank of Travancore, Main Branch, Kottayam. The
substance of the allegations against the accused is that loan was
sanctioned on the basis of fictitious and forged documents,
pursuant to a conspiracy hatched by the bank officials, who are
Crl.M.C.No.4620/2019
public servants, with the persons who availed of the loans.
4. Accused 1 and 8 in the case were the AGM
(Officiating) and the Manager (SIB) of the Bank. The second
accused was the Managing Partner of the firm M/s.J.J.Exports.
The fourth accused in the case was the Managing Director of the
company by name 'Coromondal Foot Wears India Private
Limited'. The fifth accused was a Chartered Engineer. Accused 6
and 7, the petitioners, were Chartered Accountant and
Accountant respectively of the firm M/s.Ayyar and Cherian.
5. An idea regarding the allegations against the
petitioners, who are accused 6 and 7 in the case, can be obtained
from the charge described under the head "Charge - VII" in the
charge-sheet filed by the CBI, which reads as follows:
"Sri.Thomas Cherian being a Chartered
Accountant, A-6 during 2002-2003 dishonestly
prepared the loan application for Rs.200 lakhs as
LC and CC facilities in the name of
M/s.Corromondal Foot Wears India (P) Ltd, a
non-existing company and got forged the
signatures of Directors through his employee on
conspiracy with A-2, A-7 and other accused
Crl.M.C.No.4620/2019
persons and dishonestly offered 54.67 acres of
land situated at Ambasamundiram, properties of
his in-laws Shri George Dominic, Smt.Elima
George, Dominic George and Thomas Martin
George as collateral security for availing the said
facility with knowledge that the said property
would worth below 2 lakhs and got prepared an
exorbitant valuation report through
Sri.K.S.Ramakrishna Iyyer in conspiracy with
other accused and induced the bank to sanction
and disburse the loan amount to A-2 and A-4 in
the name of M/s.Corromondal Foot Wears
Pvt.Ltd., thereby caused a wrongful loss of
Rs.3,68,73,385/- to SBI and thus accused
committed offence punishable u/s 420 IPC."
6. The trial court has framed charge against the accused
in the case. The charge framed against the petitioners by the
trial court is in the same lines as contained in the charge-sheet
filed by the CBI. Further, the trial court has also framed charge
against the petitioners to the effect that "That you, the 6th and 7th
accused joined in the conspiracy and jointly prepared loan
application for M/s.Coromandal Foot Wears without the
knowledge of Sri.Raju Varghese whose name was incorporated as
Crl.M.C.No.4620/2019
Director of the company."
7. This application is filed by the petitioners under
Section 482 of the Code of Criminal Procedure, 1973 (for short
'the Code') for setting aside the charge framed against them by
the trial court.
8. Heard learned counsel for the petitioners and the
learned Central Government Standing Counsel who appeared for
the CBI.
9. Learned counsel for the petitioners submitted that
criminal liability cannot be attributed to the petitioners in respect
of the acts done by them in their professional capacity. Learned
counsel would further contend that the documents and other
materials produced by the prosecution are not sufficient even to
create a suspicion against the petitioners of committing the
offences alleged against them.
10. Per contra, learned Central Government Standing
Counsel who appeared for the CBI invited the attention of this
Court to the statements of certain witnesses and contended that
there are sufficient materials produced by the prosecution to
Crl.M.C.No.4620/2019
proceed against the petitioners.
11. The prosecution has produced along with the final
report a list of 47 witnesses to be examined during the trial of
the case. The prosecution has also produced 180 documents to
prove the charges levelled against the accused in the case.
12. In answer to a query made by this Court, the learned
counsel for the petitioners conceded that the petitioners had not
made any application for discharge in the trial court at the
appropriate stage. Without even filing any application for
discharge at the appropriate stage, the petitioners now challenge
the charge framed against them by the trial court, by filing an
application under Section 482 of the Code, that too, purely on
factual grounds.
13. Under Section 227 of the Code, the trial court is
required to discharge the accused if it "considers that there is not
sufficient ground for proceeding against the accused". However,
discharge under Section 239 of the Code can be ordered when
"the Magistrate considers the charge against the accused to be
groundless". The power of discharge under Section 245(1) of the
Crl.M.C.No.4620/2019
Code has to be exercised by the Magistrate when, "the Magistrate
considers, for reasons to be recorded that no case against the
accused has been made out which, if unrebutted, would warrant
his conviction". There is difference in the language employed in
the above provisions. But, notwithstanding these differences,
whichever provision may be applicable, the court is required at
this stage to see that there is a prima facie case for proceeding
against the accused (See State v. Suresh Rajan : (2014) 11
SCC 709 and Tarun Jit Tejpal v. State of Goa : 2019 SCC
OnLine SC 1053).
14. It is well-settled that at the stage of framing the
charge, the trial court is required to evaluate the materials and
documents on record with a view to find out whether the facts
emerging therefrom, taken at their face value, disclose the
existence of the ingredients constituting the offences alleged
against the accused (See State v. M.R. Hiremath: (2019) 7
SCC 515 : AIR 2019 SC 2377).
15. It is also well settled that the trial court, while
considering the discharge application, has to sift through the
Crl.M.C.No.4620/2019
evidence in order to find out whether there are sufficient grounds
to try the accused. The trial court has to consider the broad
probabilities, total effect of evidence and documents produced
and the basic infirmities appearing in the case and so on (See
Sanjay Kumar Rai v. State of U.P : AIR 2021 SC 2351).
16. Framing of charge is the first major step in a criminal
trial where the court is expected to apply its mind to the entire
record and documents placed therewith before it. The satisfaction
of the trial court in relation to the existence of constituents of an
offence and the facts leading to that offence is a sine qua non for
exercise of the jurisdiction in framing the charge against the
accused (See State v. Anup Kumar Srivastava : (2017) 15
SCC 560 : AIR 2017 SC 3698).
17. In the instant case, since the petitioners had not filed
any application for discharge, the trial court had no occasion to
state the reasons for framing the charge against them. Of course,
the trial court has no obligation to write an order showing the
reasons for framing charge. Reasons have to be given only when
the trial court dismisses an application for discharge. But, when
Crl.M.C.No.4620/2019
the charge framed against the accused by the trial court is
directly challenged before the High Court in a petition under
Section 482 of the Code, it would be necessary for this Court to
peruse all documents and materials produced by the prosecution
in the trial court along with the final report to ascertain whether
the facts emerging from them constitute the offences alleged
against the accused. In the instant case, the petitioners have not
produced before this Court the documents and other materials
produced by the prosecution along with the final report to enable
this Court to undertake such an exercise.
18. In the above circumstances, I am inclined to accept
the prayer made by the learned counsel for the petitioners to
grant the petitioners an opportunity to file application for
discharge before the trial court. Granting such an opportunity
can be done only after setting aside the charge already framed
against them by the trial court.
19. Consequently, the charge framed against the accused
by the trial court, as far as it relates to the petitioners alone, is
set aside. The petitioners are granted liberty to file application
Crl.M.C.No.4620/2019
for discharge before the trial court within a period of one month
from today. If such application is filed by them, the trial court
shall dispose of it within a period of one month from the date of
filing it. If the petitioners fail to file any application for discharge
before the trial court within the aforesaid period, the charge
framed against them by the trial court shall stand restored and it
would be then at liberty to proceed with the trial of the case. The
Crl.M.C is disposed of as above.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
Crl.M.C.No.4620/2019
APPENDIX OF CRL.MC 4620/2019
PETITIONER'S ANNEXURES
ANNEXURE A-1 TRUE COPY OF THE FIR IN C.C.NO.40 OF
2011 ON FILES OF THE HON'BLE COURT OF
THE SPL.JUDGE CBI/SPE, TIRUVANANTHAPURAM
ANNEXURE A-2 TRUE COPY OF THE FINAL REPORT IN
C.C.NO.40 OF 2011 ON FILES OF THE
HON'BLE COURT OF THE SPL.JUDGE CBI/SPE,
TIRUVANANTHAPURAM
ANNEXURE A-3 CERTIFIED COPY OF THE COURT CHARGE DATED
01.04.2019 IN C.C.NO.40 OF 2011 ON FILES
OF THE HON'BLE COURT OF THE SPL.JUDGE
CBI/SPE, TIRUVANANTHAPURAM
ANNEXURE A-4 TRUE COPY OF THE JUDGMENT IN CRL.
R.P.NO.926 OF 2018 ON FILES OF THIS
HON'BLE COURT
RESPONDENTS'
NIL
EXHIBITS :
TRUE COPY
PS TO JUDGE
