Kerala High Court
Vincent John vs State Of Kerala on 1 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
CRL.MC NO. 3284 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 343/2016 OF COURT OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA
PETITIONER/1ST ACCUSED:
VINCENT JOHN
AGED 67 YEARS
ANCHUTHARA HOUSE,
POOCHAKKAL, CHERTHALA,
NOW RESIDENT AT FLAT NO. 18 C,
OLIVE KALISTA, EDACHIRA ROAD,
KAKKANAD, PIN - 686002
BY ADVS.
BLAZE K.JOSE
URMILA ZACHARIA
AKHILA M.
GOPIKA P.
RESPONDENTS/ COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTICORRUPTION BUREAU E/R UNIT II,
KOTTAYAM, PIN - 686002
BY
ADVOCATE GENERAL OFFICE KERALA
SRI.A.RAJESH SPL.P.P. VACB,
SMT.S.REKHA SR.P.P
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
01.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No. 3284/2022
..2..
ORDER
Dated this the 1st day of February, 2023
This Crl.M.C. has been filed to quash all further
proceedings in C.C.No.343/2016 on the files of the Court of
Enquiry Commissioner and Special Judge, Muvattupuzha (for
short, 'the court below').
2. The petitioner is the accused No.1. The offences
alleged against the petitioner are punishable under Section
13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988
and Sections 466, 468, 471 and 120B of the Indian Penal
Code.
3. The petitioner was the Managing Director of
Anchuthara Resort India Pvt. Ltd., a company incorporated
under the Indian Companies Act on 20/09/1994. The
prosecution case, in short, is as follows: The petitioner was
the holder of Patta No.221/94-C in patta files L.A.231/93
having an extent of 76.50 Ares of land situated in Survey
No.56/2 of block No.9 in T.P. Account No.109A of
Chinnakanal Village. It is an inalienable land. Though the
Crl.M.C.No. 3284/2022
..3..
property is an inalienable land, the petitioner transferred the
same in favour of a Company M/s. Anchuthara Resort India
Pvt. Ltd., in which he was the Managing Director, by
executing document No.68/02 of Sub Registrar's Office,
Rajakumari on 14/01/2002. Thereafter, he conspired with
accused No.2, Village Assistant of the Chinnakanal Village,
who is a public servant, to alienate the above land by
executing the transfer of registry in favour of
M/s.Anchuthara Resort India Pvt. Ltd., and pursuant to the
conspiracy, the accused No.2 abusing his official position as
Village Assistant, Chinnakanal, forged entries in the T.P.
Register and P.V. Register on 28/02/2005 whereby accused
No.1 got the undue pecuniary advantage to the tune of
Rs.95,000/- by illegal and corrupt means without any public
interest.
4. The learned counsel for the petitioner, Sri.Blaze K.
Jose submitted that even if the entire allegations in the final
report is believed in its entirety, no offence under Section
13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988
Crl.M.C.No. 3284/2022
..4..
and Sections 466, 468, 471 and 120B of the Indian Penal
Code have been made against the petitioner. On the other
hand, the learned Special Public Prosecutor Sri.A.Rajesh
stated that there are sufficient materials to connect the
petitioner with the alleged offences, and when a prima facie
case is made out, the jurisdiction vested with this Court
under Section 482 of Cr.P.C. cannot be invoked.
5. The allegations against the petitioner are twofold.
(i) the petitioner transferred an inalienable land covered by
patta in favour of the Company of which he was the
Managing Director. (ii) the petitioner, in collusion with the
accused No.2, forged entries in the T.P. Register and P.V.
Register to show that the land was transferred in favour of
the Company.
6. Section 466 of IPC deals with forgery of record of
Court or of public register, etc. Section 468 of IPC deals with
forgery for purpose of cheating. Section 471 of IPC deals
with using as genuine a forged document as original.
Offence of forgery is defined in Sections 463 and 464 of IPC.
Crl.M.C.No. 3284/2022
..5..
Under Section 463, the making of a false document with any
of the intents therein mentioned is forgery and Section 464
set forth when a person is said to make a false document.
Section 470 defines a "Forged document" as false document
made by forgery. The condition precedent for an offence
under Sections 466, 468 and 471 is forgery. The condition
precedent for forgery is making a false document or false
electronic document or part thereof. An analysis of Section
464 of IPC shows that a person is said to make a false
document if (i) he made or executed a document claiming to
be someone else or authorized by someone else or (ii) he
altered or tampered with the document or (iii) he obtained a
document by practicing deception or from a person not in
control of his senses. The prosecution allegation is that the
petitioner transferred an inalienable land belonging to him
under a patta in favour of a Company of which he was the
Managing Director. Thus, it is not a case where he executed
or made a document claiming to be someone else or
authorized by someone else or he altered or tampered with
Crl.M.C.No. 3284/2022
..6..
a document or he obtained a document by practicing
deception from a person. Thus, it cannot be said that the
document by which the petitioner had transferred his land to
the Company on 14/01/2002 is a false document as defined
under Section 464 of IPC. As it is not a forged document,
there cannot be any forgery. If there is no forgery, neither
Sections 466, 468 nor 471 of IPC are attracted.
7. It is further alleged by the prosecution that
thereafter on 28/02/2005, the petitioner in collusion with the
accused No.2 forged entries in T.P. Register and P.V. Register
to show that the land was transferred in favour of the
Company. Even according to the prosecution version, alleged
forgery was committed by the accused No.2. The definite
case of the petitioner is that he sold entire shares of the
Company and resigned from the directorship of the Company
on 31/01/2002. Annexure-2, the copy of the Form No.32 of
the Companies Act, 1956 would show that the petitioner
resigned from the directorship of the Company on that day.
Annexure-3 is the fresh certificate of incorporation
Crl.M.C.No. 3284/2022
..7..
consequent to the change of name in the Company.
Annexure-4, the Annual Return filed at the Ministry of
Corporate Affairs would show who all are holding shares in
the Company as on 30/09/2004 - 30/09/2005. It would
show that the petitioner was not holding any share in the
Company. Thus, Annexures A2 to A4 would clearly show that
on 28/02/2005 the petitioner did not have any connection
with the Company. The learned special public prosecutor
submitted that there are evidence on record to show that
subsequently, in the year 2007, the petitioner again became
the Director of the Company. The law does not bar a person
to transfer share in the Company and acquiring share later
on and becoming the Director of the Company. The question
is, whether as on the date of the alleged incident, the
petitioner had any role or interest in the affairs of the
Company. For the reasons stated above, the case of the
prosecution that the accused No.2, in collusion with the
petitioner, forged entries in the T.P. Register and P.V. Register
cannot be prima facie sustained.
Crl.M.C.No. 3284/2022
..8..
8. What remains is conspiracy under Section 120B of
IPC. I went through the final report. There are no sufficient
material to attract the offence under Section 120B of IPC as
well. That apart, since the petitioner did not have any
interest over the Company on 28/02/2005, the conspiracy
alleged by the prosecution cannot be believed.
9. In the light of the above findings, I am of the
view that the offence under Section 13(2) r/w 13(1)(d) of
the Prevention of Corruption Act, 1988 and Sections 466,
468, 471 and 120B of the Indian Penal Code are not prima
facie attracted against the petitioner. Hence, no purpose will
be served in proceeding further against the petitioner.
Accordingly, all further proceedings against the petitioner in
C.C.No.343/2016 on the files of the Court of Enquiry
Commissioner and Special Judge, Muvattupuzha hereby
stands quashed.
10. Lastly, the learned special public prosecutor
submitted that later on it was found that the patta itself is a
bogus one, and in these circumstances, VACB intends to
Crl.M.C.No. 3284/2022
..9..
initiate further investigation. At any rate, in the present final
report, the prosecution has no case that the patta itself is a
bogus one. The remedy open to the VACB is to initiate a
separate prosecution if it is permissible under law.
The Crl.M.C. is allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
Crl.M.C.No. 3284/2022
..10..
APPENDIX OF CRL.MC 3284/2022
PETITIONER'S ANNEXURES
Annexure - 1 A COPY OF THE RELEVANT PAGES OF THE CHARGE
SHEET SUBMITTED BY VIGILANCE AND
ANTICORRUPTION BUREAU E/R UNIT II,
KOTTAYAM DATED 30.07.2008 IN CRIME NO V.C.
2/08/ERK NOW PENDING ON THE FILES OF
HON'BLE COURT OF ENQUIRY COMMISSION AND
SPECIAL JUDGE MUVATTUPUZHA, AS C. C. NO.
343 OF 2016.
Annexure - 2 A COPY OF THE FORM NO. 32 OF THE COMPANIES
ACT,1956 SHOWING THE RESIGNATION OF THE
PETITIONER FROM DIRECTORSHIP OF THE
COMPANY ISSUED BY THE REGISTRAR OF
COMPANIES.
Annexure - 3 A COPY OF THE FRESH CERTIFICATE OF
INCORPORATION CONSEQUENT ON CHANGE OF NAME
AS AYUR COUNTY RESORTS LTD ISSUED BY THE
REGISTRAR OF COMPANIES
Annexure - 4 A COPY OF THE ANNUAL RETURN FILED IN THE
AYUR COUNTY RESORTS IN THE YEAR 2004 AND
2005 ISSUED BY THE REGISTRAR OF COMPANIES
