K.G.Kumaran Nair vs State Of Kerala
2022 Latest Caselaw 2286 Ker

Crl.M.C.6328/2019
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               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
    WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                        CRL.MC NO. 6328 OF 2019
       AGAINST THE ORDER/JUDGMENT IN CC 138/2008 OF ENQUIRY
                COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
PETITIONER/S:

             K.G.KUMARAN NAIR, AGED 76 YEARS
             KUMARA SADANAM, POOTHAKKUZHY P.O., SOUTH PAMPADY, PIN
             - 686 521, (FORMERLY ADMINISTRATOR, ESCB LTD.NO.3576,
             KOORALI).

             BY ADV G.BHAGAVAT SINGH



RESPONDENT/S:

             STATE OF KERALA,
             REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH
             COURT OF KERALA, ERNAKULAM - 682 031.

             BY ADV GOVERNMENT PLEADER



OTHER PRESENT:

             SPL.GP SRI. A RAJESH




      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.6328/2019
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                                JUDGMENT

Petitioner herein stands arrayed as the 4 th accused in C.C.No.138

of 2008 of the Court of Enquiry Commissioner and Special Judge,

Kottayam for offences punishable under sections 409, 468(iii), 471,

477A, 120B, 109 and 34 IPC, 13(1)(c) & (d) r/w 13(2) of the PC Act.

Final report filed discloses that the petitioner herein was the

administrator of Elamkulam Service Co-operative Bank Limited

No.3576, Koorali during the period from 10.02.1992 to 31.01.1993.

During the above period, 20 loans were released allegedly in favour of

13 fictitious persons. The allegation against the petitioner herein is, in

relation to a loan sanctioned by him to one Southern Rubber

Chemicals, which is revealed from the Loan Register. The loan was

sanctioned by the petitioner being the Administrator, on 31.03.1992.

Records further reveal that, it was closed on 29.04.1992. The

prosecution has a specific case that, it was only a book transfer. The

crux of the allegation as against the petitioner herein is that, accused

No.1 being the Secretary, accused No.2 being the Senior Clerk and

accused nos.3 and 4 being public servants entered into criminal

conspiracy with the petitioner herein to misappropriate the funds by

cheating and in furtherance of their conspiracy, fraudulently and

dishonestly availed Hundy loan No.155/91-92 for Rs.5,22,473/- on Crl.M.C.6328/2019

31.03.1992 by using a forged Hundy in the fictitious name of Southern

Rubber Chemicals by falsifying the accounts.

2. Learned counsel for the petitioner, assailing the prosecution

contended that the petitioner herein was holding the charge of three

other co-operative banks along with present one, in addition to his

regular duties as a Co-operative Inspector, during the relevant period.

It was also contended by the learned counsel that the petitioner had no

reason to suspect any of the transactions and none of the materials

placed before him during the relevant period indicated that, either the

Southern Rubber Chemicals or the fictitious firm or that Hundy loan

was not liable to be issued as per the byelaw.

3. In answer to it and asserting that the allegations against the

petitioner stands established from the statements of crucial witnesses

CW2 and CW6, learned Special Government Pleader invited me to their

statements. It seems that, CW2 was the concerned officer who

unearthed the alleged manipulations. According to him, in the printed

byelaw made available, certain amendments were incorporated, which

did not have the approval of the Joint Registrar. According to him,

Director Board members and the Secretary were responsible for

forging of the byelaw.

4. This version of CW2 itself indicate that, as far as the forging

of byelaw is concerned, no allegation is attributed to the petitioner Crl.M.C.6328/2019

herein. If the persons concerned together forged the byelaw, in the

absence of any materials on record to show that the petitioner was

aware of that, no criminal liability can be fastened on him, since he

went by the available byelaw.

5. It was also pointed out by the learned Special Government

Pleader with reference to the Loan Register that the Southern Rubber

Chemicals was a fictitious company. Essentially, the charge indicates

that the petitioner has entered into criminal conspiracy with the

remaining accused. However, the version of CWs.2 and 6 does not

refer to any conspiracy. On the other hand, the version of CW6 only

refers as far as the petitioner is concerned to the tenure of the

petitioner and that, he has signed the register. Absolutely, no material

is revealed to establish conspiracy through the statement of CW6 or

CW2.

6. Though there is a specific allegation that, Southern Rubber

Chemicals was a fictitious company, the Loan Register itself shows that,

even prior to the disputed transaction entered and ratified by the

petitioner, several other transactions were entered into by the

Elamkulam Service Co-operative Bank with Southern Rubber

Chemicals. Records are available, which shows that, loans were

advanced to Southern Rubber Chemicals even during the period 1991

to 1992, much prior to the disputed Hundy transaction during 155/91- Crl.M.C.6328/2019

92 dated 31.03.1992.

7. In this background, it is clear that, when the Southern

Rubber Chemicals was a standing client of the bank and bank itself had

advanced loans to the company even prior to the disputed transaction,

there was no materials before the Administrator to suspect that,

Southern Rubber Chemicals was a fictitious company. The version of

CWs.2 and 6 are silent as to how the Administrator was aware of the

dubious constitution of the above institution.

8. In short, absolutely there is no material to cast liability on

the petitioner. Learned counsel for the petitioner also submitted at the

time of hearing that, accused Nos.3 and 4 were discharged by the

Vigilance Court itself. However, there is no material before this Court

to substantiate it.

9. Having evaluated the available materials, I am satisfied that,

there is nothing on record to proceed against the petitioner.

In the result, Crl.M.C is allowed quashing the charge as against

the petitioner herein in C.C.No.138 of 2008 of the Court of Enquiry

Commissioner and Special Judge, Kottayam.

Sd/-

SUNIL THOMAS JUDGE Sbna/ Crl.M.C.6328/2019

APPENDIX OF CRL.MC 6328/2019

PETITIONER ANNEXURES

ANNEXURE 1 CERTIFIED COPY OF THE FINAL REPORT FILED BY THE VIGILANE DATED 30/09/2003 BEFORE THE COURT BELOW.

ANNEXURE 2 COPY OF THE STATEMENT OF THOMAS T.PUNNAN W-

ANNEXURE 3 COPY OF THE STATEMENT OF P.A.SEBASTIAN PRODUCED ALONG WITH ANNEXURE-1.