Binu Viswambharan vs State Of Kerala
2022 Latest Caselaw 4065 Ker

Crl.M.C.No.601/19                         1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

      THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944

                        CRL.MC NO. 601 OF 2019

PETITIONERS/ACCUSED:

     1       BINU VISWAMBHARAN,
             AGED 42 YEARS,
             C.R.A.268, AMBALATHARA PUTHENVEEDU, CHOOZHAMPALA,
             MUKKOLA P.O., THIRUVANANTHAPURAM-695 043.
     2       SMT.LAKSHMY BINU,
             W/O.BINU VISWAMBHARAN, C.R.A.268,
             AMBALATHARA PUTHENVEEDU, CHOOZHAMPALA, MUKKOLA P.O.,
             THIRUVANANTHAPURAM-695 043.
             BY ADVS.
             S.K.BALACHANDRAN
             SMT.N.D.DEEPA

RESPONDENTS/STATE & DE FACTO COMPLAINANT:
     1     STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM-682 031.
     2     JAYASREE,
           D/O SAVITHRI, GANAM NEAR VILAPPIL SALA PHC,
           VILAPPIL VILLAGE, THIRUVANANTHAPURAM-695 573.
     3     BADUSHA,
           S/O.ABOOBAKER, AGED 36 YEARS,
           PINARVILAKAM VEETTIL, NEAR KILIKURISHADI JUNCTION,
           KOLLODE P.O., THIRUVANANTHAPURAM-695 572.
     4     CHERUPUSHPAM,
           D/O.AAGNAS, AGED 50, SATHEESH BHAVAN, NEAR MALAPPANAM
           CATHOLIC CHURCH, VILAPPILSALA P.O,
           THIRUVANANTHAPURAM-695 573.
           ADDL.R3 & R4 IMPLEADED AS PER ORDER DTD.30.11.21 IN
           CRL.M.A.NO.1 OF 2021
           SMT.MAJIDA.S
           ADV. RANJIT GEORGE - SR. PP

         THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

07.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.601/19                    2




                              ORDER

The petitioners herein are the husband and wife and are

accused Nos.1 and 2 in Crime No.978 of 2014 of

Malayankeezhu Police Station, which was later renumbered as

Crime No.100/CR/2018-EOW1/Kollam CBCID. The aforesaid

crime was registered based on a complaint submitted by the 2 nd

respondent herein for the offences punishable under Sections

406, 409, 420 read with Section 34 IPC.

2. The main allegation in the aforesaid complaint is that

the petitioners, who were agents of Life Insurance Corporation

of India (hereinafter referred to as LIC), have collected an

amount of Rs.21,812/- from the 2nd respondent and her husband

during the period from 2010 to 2014, making them believe that

the said amount will be paid towards her husband's insurance

premium, but the same was not paid and thereby cheated them.

3. Initially, the Sub Inspector of Police, Malayinkeezhu

police station conducted an investigation on the said complaint

after registering Crime No.978 of 2014. Later, the investigation

of the said case was taken over by the Deputy Superintendent

of Police, District Crime Branch (TVM Rural). Upon completion

of the investigation, the final report was submitted before the

Judicial First Class Magistrate Court, Kattakkada and

cognizance thereon were taken as C.C.No.2688 of 2016.

Annexure-2 is the aforesaid final report.

4. The petitioner approached the Human Rights

Commission alleging victimization on the ground that the

aforesaid crime was registered against them as a retaliation for

the initiation of certain criminal proceedings against some

private financiers, at whose instance, the petitioners were

subjected to harassment on demand of exorbitant interest. It

was also averred in the aforesaid complaint before the Human

Rights Commission that the registration of the Crime No.978 of

2014 by Malayinkeezhu Police station was at the instance of the

said private financiers, and the police was aiding them. The

complaint submitted by the petitioner before the Human Rights

Commission was numbered as HRMP.No.2836/15/TVM. In the

aforesaid complaint, an investigation was conducted by the

Human Rights Commission through the Chief Investigation

Officer attached to the Commission. Annexure-3 is the detailed

report submitted by the Chief Investigation Officer, and a

perusal of the same would indicate several discrepancies in the

investigation conducted by the police in the crime in which the

petitioners were accused and also highlighted inaction on the

part of the Station House Officer concerned in acting upon the

complaint submitted by the petitioners herein. In the said

report, crime Nos.978 of 2014, 979 of 2014 and 615 of 2013,

which were registered in connection with the transactions and

complaints against the petitioners herein, were directed to be

further investigated by the Additional Director General of Police

(HQ), who was holding the charge of Nodal Officer, 'Operation

Kubera', a drive conducted by the police, against illegal

money lending. In addition to the above, departmental

inquiry was ordered against Sri.Muhammed Rajas, SI of Police,

Malayinkeezhu Police Station from 18.04.2012 onwards. The

aforesaid report was accepted by the Human Rights

Commission, and as per Annexure-A4 order, further

proceedings under the aforesaid report were ordered.

5. Subsequently, as apparently further measures in strict

compliance with the order passed by the Human Rights

Commission were not taken, another petition was submitted by

the petitioners before the Commission highlighting this aspect.

Accordingly, as per Annexure-5, the Commission directed the

police to submit a report of the action taken on the orders

passed. In pursuance to the same, the Additional Director

General of Police (Crimes) forwarded vide Annexure-6

communication, an investigation report conducted by the

Superintendent of Police, CBCID, EOW1, Kollam to the

Commission. The annexure-6 report contained a detailed

investigation. Among other findings therein, it was also

observed in the said report that the allegation raised against

the petitioners herein in Crime No.978 of 2014 is false. It was

found that, even though the allegation against the petitioners is

that the amount collected from the husband of the de facto

complainant towards premium of insurance policy during the

relevant period was not remitted by the petitioners towards

premium, on inquiry, it was revealed that there was no default

in paying the premium in the particular policy. Based on the

aforesaid findings in Annexure-6, the Deputy Superintendent of

Police directed further investigation in Crime Nos.978 of 2014,

979 of 2014, 982 of 2014, 397 of 2015 and 190 of 2015

through an independent agency as requested by the petitioners

herein. The Human Rights Commission considered the

aforesaid report. It passed Annexure-7 order directing further

investigation by the Officer, not below the rank of Deputy

Superintendent of Police, Crime Branch in respect of Crime

Nos.979 of 2014, 982 of 2014 and 397 of 2015. As regards to

the further investigation in Crime No.978 of 2014, which is the

subject matter, in this case, it was observed by the Human

Rights Commission that since the final report is already

submitted and the court concerned has taken cognizance

thereof, it is not proper to direct a further investigation in the

matter, by the Commission. However, Annexure-7 report would

indicate that the observations made by the Superintendent of

Police in Annexure-6 report regarding the falsity in the

allegations against the petitioners in Crime No.978 of 2014

were accepted, and only because the cognizance was already

taken by the Magistrate concerned, further investigation was

not ordered. Even though the said report was challenged by

the 2nd respondent de facto complainant before this Court; the

same was dismissed as per Annexure-8 judgment in W.P.(C).

No.37014 of 2017.

6. Subsequently, the petitioners herein submitted a

representation before the Director General of Police (Crimes),

praying for orders directing further investigation in Crime

No.978 of 2014 of Malayinkeezhu Police Station, as well. After

perusing the records relating to the aforesaid case, Annexure-9

communication was issued by the Director General of Police

(Crimes) to the State Police Chief recommending further

investigation in Crime No.978 of 2014. Consequently, the

Annexure-10 order was passed by the State Police Chief,

ordering further investigation in Crime No.978 of 2014 by the

CBCID. Accordingly, information regarding further

investigation under Section 173(8) of Cr.P.C. was submitted by

the CBCID, Kollam, before the Judicial First Class Magistrate

Court, Kattakkada and the crime was renumbered as Crime

No.100/CR/2018-EOWI/Kollam and later investigation was

handed over to Crime Branch, Thiruvananthapuram. While the

investigation mentioned above was pending, this Crl.M.C. was

filed by the petitioners seeking to quash all further proceedings

in the crime mentioned above.

7. During the pendency of this Crl.M.C., the investigation

was completed. A final report was submitted which is produced

as document No.4 by the petitioners herein along with a memo

submitted on 10.03.2021. In these circumstances, this Crl.

M.C. is being considered.

8. In the final report submitted by the Crime Branch,

Thiruvananthapuram, before the Judicial First Class Magistrate

Court, Kattakkada, the findings regarding the falsity of the

allegations against the petitioners were confirmed. It is evident

from the aforesaid report that all the witnesses cited in

Annexure-2 final report submitted earlier were re-examined,

and further statements were recorded. The records maintained

by the Life Insurance Corporation of India pertaining to the

insurance policy of the husband of the 2 nd respondent de facto

complainant were also examined. After evaluating all the

materials above, the investigating officer arrived at a specific

conclusion in document No.4 to the effect that there was no

default in payment of premium in respect of the de facto

complainant's husband's policy during the relevant period.

Certain discrepancies which go to the root of the complaint put

forward by the de facto complainant concerning the amount of

payment were also explicitly taken note of. It was found that

there was some marked difference between the amount

allegedly collected by the petitioners herein and the purposes

for which the same was collected, going by the First

Information Statement in Crime No.978 of 2014 and in the

subsequent complaints submitted by the de facto complainant.

However, in the supplementary report, despite arriving at a

specific conclusion that the allegation against the petitioners

herein was false, the case was referred as undetected. The

grievance highlighted by the petitioners is that, since the case

is remaining as undetected despite having all the materials to

refer the case as a false case, it causes serious prejudice to the

petitioners herein.

9. Heard, Sri.S.K.Balachandran learned counsel for the

petitioners, Smt.S.Majitha learned counsel for the 2 nd

respondent de facto complainant and Sri.Sudheer

Gopalakrishnan learned Public Prosecutor for the State.

10. Subsequent to the filing of this Crl.M.C., additional

respondents 3 and 4 were also impleaded in the party array,

and notices were sent to them. Even though the service of

notices against them was completed, there is no appearance on

their part.

11. The subject matter of this Crl.M.C. relates to the

sustainability of the criminal prosecution pending against the

petitioners herein. The records reveal that the petitioners have

already undergone several rounds of litigations through various

forums and Government Authorities. The specific case of the

petitioners is that they are being victimized at the instance of

certain private financiers because the petitioners have initiated

certain criminal proceedings against them for collection of

interest at exorbitant rates. According to him, the crime, which

is the subject matter of this case, was registered at their

instance, and the disastrous consequences as far as petitioners

are concerned due to the said complaint are that, the agency-

ship of LIC of both the petitioners were cancelled due to this

complaint. It is a fact that in the repeated investigations

conducted by various agencies, including the Chief

Investigating Officer of Human Rights Commission and Crime

Branch, the specific finding entered by all such agencies is to

the effect that the allegations raised against the petitioners are

false. Despite the above, a final report was filed by referring it

as a case of undetected instead of reporting it as a false case.

Since specific materials were brought out indicating that the

allegations are false, the case should have been referred to as a

false case. Since such a report has not been filed, the learned

counsel for the petitioners submits that it causes serious

prejudice to them, and therefore, this is a fit case in which

powers of this Court under Section 482 Cr.P.C. has to be

invoked.

12. When the materials on record are considered, I find some

force in the contention of the learned counsel for the

petitioners. In Annexure-2 final report originally filed in Crime

No.978 of 2014, the specific allegation against the petitioners is

misappropriation of the amounts collected from the husband of

the 2nd respondent and the respondents 3 and 4 herein. As per

the findings in Annexure-2, the aforesaid amounts were handed

over to the petitioners herein towards payment of premium of

insurance policies in their respective names. The Annexure-3

investigation report submitted by the Chief Investigation

Officer attached to the Human Rights Commission subsequently

investigated the aforesaid allegations. The said report contains

a specific finding that the said allegations are false. The above

mentioned finding is reiterated in Annexure-6 report submitted

by the Superintendent of Police, CBCID, EOW1-Kollam. The

reports mentioned above also fortify the petitioner's

contentions that they were being victimized at the instance of

certain private financiers. The specific directions issued by the

Human Rights Commission that the matter is to be investigated

by the officer in charge of Nodal Officer of 'Operation Kubera'

is a clear indication of the fact above. In the final report

submitted after further investigation by the Crime Branch, the

above mentioned finding of harassment and the falsity in the

allegations regarding the misappropriation of the amounts

collected towards premium is affirmed. It is discernible from

the final report that all the witnesses who were cited to support

the prosecution under Annexure-2 were re-examined, and their

statements were recorded. The conclusion as to the falsity of

the allegations against the petitioners herein was based on the

same. Despite all such findings by all the aforesaid authorities,

the conclusion in the subsequent final report is to refer to the

case as undetected. I am of the view that despite having

collected so many materials in a series of investigations by

investigating officers belonging to various authorities, the

reluctance expressed by the investigating agency in referring

the same as a false case is suspicious. Considering the entire

facts and circumstances of the case, I am of the view that filing

such a report terming the offence as undetected is improper.

Indeed, the same would cause serious prejudice to the

petitioners, particularly because the documents and

proceedings I have already referred to above clearly indicate

continuous harassment of the petitioners herein. The materials

and findings unearthed by the investigating agencies through

the investigations conducted at various levels at various

occasions clearly indicate the innocence of the petitioners

herein. The learned counsel for the petitioners places reliance

upon the decisions of this Court in Sahadevan v. State of

Kerala [2003 KHC 1996], wherein it is held that inherent

powers of the High Court can be invoked when the proceedings

against the accused are malafide and instituted with an ulterior

motive. In State of Haryana v. Bhajan Lal [1992 KHC 600]

also, it was held that, when the proceedings are initiated to

wreak vengeance, the powers of this Court can be invoked. In

this case, I am convinced that the filing of a final report after

further investigation, observing that the offence is undetected,

despite having all the materials to conclude that no offence is

made out, is harassment. In such circumstances, I am of the

view that this is a fit case in which powers of this Court under

Section 482 Cr.P.C. can be invoked.

In the result, this Crl.M.C. is allowed, and the proceedings

in Crime No.100/CR/2018-EOW1, Kollam CBCID, in which

investigation was completed by CBCID, Thiruvananthapuram as

Crime No.100/CB/TVM/2018 (Original Crime No.978 of 2014 of

Malayinkeezhu Police Station) are hereby quashed.

Sd/-

ZIYAD RAHMAN A.A.

                                            JUDGE
DG/18.3.22


                    APPENDIX OF CRL.MC 601/2019

PETITIONER ANNEXURES

ANNEXURE 1             CERTIFIED COPY OF THE FIR IN CRIME

NO.978/2014 OF MALAYANKEEZHU POLICE STATION

ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT IN FIR NO.978/2014 OF DISTRICT CRIME BRANCH (TVM-

RURAL)

ANNEXURE 3 TRUE COPY OF THE REPORT DATED 1.7.2015 SUBMITTED BY THE INVESTIGATION AGENCY ATTACHED TO THE KERALA STATE HUMAN RIGHTS COMMISSION

ANNEXURE 4 TRUE COPY OF THE FINAL ORDER DATED 2.7.2015 OF THE KERALA STATE HUMAN RIGHTS COMMISSION

ANNEXURE 5 TRUE COPY OF THE ORDER DATED 26.12.2016 OF THE HUMAN RIGHTS COMMISSION

ANNEXURE 6 TRUE COPY OF THE REPORT DATED 27.5.2017 BY ADGP (CRIMES)

ANNEXURE 7 TRUE COPY OF THE ORDER DATED 7.6.2017 OF THE HUMAN RIGHTS COMMISSION

ANNEXURE 8 TRUE COPY OF THE JUDGMENT DATED 1.6.2018 INWPC.37014/2017

ANNEXURE 9 TRUE COPY OF THE REPORT DATED 7.3.2018 OF DGP (CRIMES) TO DGP OF KERALA ALONG WITH REPORT OF POLICE SUPDT. CBCID, EOW 1 DATED 28.2.2018

ANNEXURE 10 TRUE COPY OF THE ORDER NO.D6/53156/2018/PHQ DATED 16.3.2018 ISSUED BY THE STATE POLICE CHIEF