Manoharan Thampi B vs State Of Kerala
2024 Latest Caselaw 11197 Ker

Kerala High Court

Manoharan Thampi B vs State Of Kerala on 19 April, 2024

Author: K. Babu

Bench: K. Babu

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR.JUSTICE K. BABU
  FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
                  CRL.MC NO. 6412 OF 2023
 FIR NO.2/2023 OF VACB, SOUTHERN RANGE, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.1:

         MANOHARAN THAMPI B
         AGED 55 YEARS
         DEPUTY TAHSILDAR (UNDER SUSPENSION),
         S/O M. K. BASKARAN NAIR,
         RESIDING AT TC- NO.3020(2) AMOGH,
         POWDIKONAM P.O.,
         THIRUVANANTHAPURAM, PIN - 695587.
         BY ADVS.
         JOHNSON GOMEZ
         SANJAY JOHNSON
         JOHN GOMEZ
         ANN MARIA SEBASTIAN
         ARUN JOHNY
         DEEBU R.
         ABIN JACOB MATHEW

RESPONDENT/PROSECUTION:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM, PIN-682031
         THROUGH THE SUPERINTENDENT OF POLICE,
         VIGILANCE & ANTI-CORRUPTION BUREAU,
         SOUTHERN RANGE, THIRUVANANTHAPURAM.


         BY SRI.A.RAJESH (SPL.GOVT.PLEADER (VIGILANCE)
            SMT.REKHA S (SR.PUBLIC PROSECUTOR)



     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.6412 of 2023

                                    2




                                 ORDER

The petitioner was the Village Officer of Kadakampally

Village in Thiruvananthapuram District. He seeks to quash FIR No.2 of

2023 of the VACB, Southern Range, Thiruvananthapuram. He faces

offences punishable under Section 13(2) r/w Sections 13(1)(c) and

13(1)(d) of the Prevention of Corruption Act and Sections 120B, 465,

468 & 471 of the Indian Penal Code.

2. The prosecution case is as follows:-

The petitioner (Accused No.1), on 09.5.2016, while serving as the

Village Officer, Kadakampally Village, irregularly effected mutation in

respect of 10 cents of land in Survey No. 2623/101/C/1/136 in favour

of Smt.Valsamma (Accused No.3) though entry regarding the same was

not in the village records. The petitioner also fabricated mutation in

respect of 5 cents of property in Thandaper No.2593 in her favour. He

also added 6 cents of Government land in the name of Smt.Valsamma.

The petitioner and the other accused conspired together and committed

forgery in the village records for the purpose of creation of subsequent

sale deeds in respect of the property using the forged documents as

genuine. The petitioner, being a public servant, committed criminal

misconduct dishonestly, facilitated conversion of valuable property in

the name of accused No.3 by corrupt and illegal means.

3. The Superintendent of Police, VACB, Southern Range,

Thiruvananthapuram, based on a complaint, directed the Vigilance team

to conduct a surprise check at Kadakampally Village Office on

9.11.2021. In the surprise check, the Vigilance found that 4.05 ares of

land was seen in the possession of Smt.Valsamma (accused No.3) as

per PV No.354/16 and another 2.02 ares of land as per Thandaper

No.2593. The property was later transferred to many persons. The

Government accorded sanction to conduct a preliminary enquiry against

the petitioner who was the then Village Officer of Kadakampally

Village. The Vigilance conducted a preliminary enquiry and found

certain derelictions in respect of mutation of the land under Thandaper

No.48916 and recommended departmental action against the

petitioner. Thereafter, Smt.R.Rejani approached this Court by filing

W.P.(C)No.18740 of 2021 to direct the District Collector,

Thiruvananthapuram to take action in respect of the alleged

irregularities in the mutation effected in respect of the property in

favour of Smt.Valsamma and others. This Court directed the District

Collector to consider and dispose of the application submitted by

Smt.Rejani. The Vigilance thereafter suo motu registered Annexure A1

FIR against the petitioner and three others.

4. Heard the learned counsel for the petitioner and the

learned Special Government Pleader (Vigilance).

5. The crux of the allegations in the FIR is as follows:-

a) Accused No.3 Smt.Valsamma had no title and possession over

15 cents of land in Survey No.2623/101/C-7.

b) The petitioner has irregularly mutated 10 cents of land in

Sy.No.2623/101/C/1/136 comprised in T.P.No.5364 in the name of one

Sreedharan in favour of Smt.Valsamma as per P.V.No.345/16 dated

9.5.2016 by allotting Thandaper No.48916.

c) The petitioner created a fabricated entry in respect of 5 cents

of land in Thandaper No.2593 in favour of Smt.Valsamma.

d) The petitioner facilitated the other accused to convey 6 cents

of Government purampokku along with the above said 15 cents of

land.

e) The petitioner and the other accused hatched a criminal

conspiracy to irregularly effect mutation in respect of the above said

property by fabricating revenue records.

f) The petitioner willfully omitted to record the balance land in

Thandaper No.48916 while effecting mutation as per PV application

Nos.458/16 and 459/16.

6. The learned counsel for the petitioner submitted that

Annexure A1 FIR does not disclose any offences. The learned counsel

also submitted that the factual findings in the FIR are not based on any

revenue records and are contrary to the findings in the preliminary

enquiry done by the Vigilance Department itself. The learned counsel

further submitted that the petitioner was not serving as the Village

Officer of Kadakampally Village on the date of creation of Annexure A8

settlement deed No.2631/1/2017 executed by accused No.3 in favour

of accused No.2.

7. The learned counsel for the petitioner relied on copy of

sale deed No.178/1983 executed by one Smt.Varangi Amma and others

(Annexure 3), certified copy of the sale deed No.1494/1/2016 executed

by accused No.3 in favour of one Benjamin (Annexure A4), true copy of

the sale deed No.1495/16 executed by Smt.Valsamma (accused No.3)

in favour of Mathews (Annexure A5), true copy of the extract of

Thandaper No.49099 (Annexure A6), true copy of the extract of

Thandaper No.49100 of Kadakampally Village (Annexure A7), true copy

of the settlement deed No.2631/2017 executed by accused No.3

(Annexure A8), extract of Thandaper No.48916 of Kadakampally Village

and true copies of the relevant pages of the digital data collected from

Kerala Land Information Mission (Annexure A12), in support of his

contention.

8. Sri.A.Rajesh, the learned Special Government Pleader

(Vigilance) made the following submissions:-

The FIR contains specific allegations against the petitioner. The

learned Special Government Pleader submitted that when the

allegations in the FIR make out cognizable offences the exercise of the

power under Section 482 Cr.P.C. to quash the criminal proceedings is

against the settled law. The learned Special Government Pleader relied

on Neeharika Infrastructure Pvt. Ltd. (M/s.) v. State of

Maharashtra and Others (2021 (3) KHC 25), State of Chattisgarh

v. Aman Kumar Singh (2023 KHC 6191) and Union of India and

Others v. B.R.Bajaj and Others (1994 KHC 773) in support of his

contentions.

9. On a perusal of the documents referred to above it can

be seen that accused No.3 Smt.Valsamma was holding an extent of five

cents of land in Thandaper No.2593. She purchased another 10 cents

of land in S.No.2623/101/C/136 from the legal heirs of one Sreedharan

Pillai who had obtained title over this property from one Sreedharan.

The materials would reveal that the application for mutation as per

PV.No.345/16 was supported by sale deed No.1936/1964 executed by

Sreedharan in favour of Sreedharan Pillai and sale deed No.178/1983

executed by the legal heirs of Sreedharan Pillai in favour of Valsamma.

It is also evident that T.P.No.5364 was in the name of Sreedharan

showing that he was the owner of the 10 cents of land in

Sy.No.2623/101/C/1/136. Therefore, the allegation that there is

irregularity in the mutation of the property in the name of

Smt.Valsamma is baseless. The further allegation of the prosecution is

that the petitioner created fabricated documents in respect of 5 cents of

land in Thandaper No.2593 in favour of Smt.Valsamma. The petitioner

relied on Annexure-A12, a true copy of the relevant pages of the digital

data collected from the Kerala Land Information Mission to contend that

the Survey Department had digitized TP No.2593 in respect of 5 cents

of land owned by Smt.Valsamma. This digital data is available from the

Director of Survey and Land Records. Therefore, the allegation of the

prosecution that the petitioner fabricated revenue records in respect of

5 cents of land in TP No.2593 in favour of Smt.Valsamma is also

unfounded.

10. The prosecution further alleges that the petitioner

helped the other accused to convey 6 cents of Government purampokku

along with the said 15 cents of land. The documents relied on by the

petitioner would show that he had effected mutation of land as per

document Nos.1494/2016 and 1495/2016 allotting Thandaper

Nos.49099 and 49100 respectively. It is also seen that the petitioner

served as the Village Officer of Kadakampally from 14.11.2017 to

27.3.2017. But, sale deed No.2631/2017 was executed on 18.09.2017.

The PV application was submitted only on 12.12.2017 and mutation was

effected on 6.3.2018, much after the transfer of the petitioner from

that office. The prosecution also alleges that the petitioner and the

other accused conspired together and facilitated irregular mutation in

respect of the properties as per PV.No.354/16 and used the same to

effect mutation as per PV.Nos.458/16 and 459/16 on 22.6.2016. PV

No.354/16 is the application submitted by Smt.Valsamma for mutation

of 10 cents of land comprised in TP No.5364 based on document

No.178/83 executed by Smt.Varangi Amma and others. The petitioner

has allotted TP No.48916 upon mutation of this 10 cents of land.

PV application Nos.458/16 and 459/16 were submitted by accused No.2

in respect of 3 cents of land based on document Nos.1494/16 and

1495/16 and based on these documents the petitioner effected

mutation and allotted TP Nos.49099 and 49100 to Mr.Benjamin and

Mr.Mathew respectively. The subsequent allegation against the

petitioner is that he omitted to record balance land in TP No.48916. In

the preliminary enquiry the vigilance found that it was only an

inadvertent omission on the part of the petitioner.

11. I am fully conscious of the principles enunciated by the

Supreme Court in the precedents relied on by the learned Special

Government Pleader that the power vested in the High Court under

Section 482 Cr.P.C. should be used sparingly when the prayer for

quashing FIR is made by the accused and that at that stage the Court

has to consider whether the allegations in the FIR disclose the

commission of the cognizable offence or not.

12. If the High Court is fully satisfied that the materials

produced by the accused are such that would lead to the conclusion

that his defence is based on sound, reasonable and indubitable facts, or

the same would rule out or displace the assertions in the complaint or

the materials relied on by the accused would reject and overrule the

veracity of the allegations, the judicial conscience of the High Court

would persuade to exercise its power under Section 482 of Cr.P.C. and

to quash such criminal proceedings to avoid or to prevent the abuse of

the process of the Court and secure the ends of justice (vide: Divya S.

S Rose v. State of Kerala (2023 (6) KLT 750), Rajiv Thapar and

Others v. Madan Lal Kapoor [(2013) 3 SCC 330] and Prashant

Bharti v. State (NCT of Delhi) [(2013) 9 SCC 293].

13. In the present case, the materials made available would

reveal that the petitioner has not committed any acts intentionally with

dishonest intention. An omission or irregularity or even dereliction of

duty would not attract the criminal liability.

14. A fundamental principle of criminal jurisprudence with

regard to the liability of an accused is the element of mens rea. On the

principles of actus reus and mens rea, the learned author Sri.Glanville

Williams in the 'Textbook of Criminal Law' [Third Edition,

Dennis.J.Baker, page 95] comments thus:

"The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence upon this fault element was the mark of advancing civilization."

15. On the principles of Criminal Liability, the learned

author Sri.K.D. Gaur in his book Criminal Law [Lexis Nexis,

Butterworths, page 37] explains thus:

"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."

16. Dishonest intention is sine qua non to attract the

offence punishable under Sections 13(1)(c) and 13(1)(d) of the Act.

17. In Zakia Ahsan Jafri v. State of Gujarat (AIR 2022

SC 3050), the Apex Court held that every act of commission and

omission would not result in hatching criminal conspiracy unless the

acts have been done deliberately and there is meeting of minds of all

concerned.

18. In the present case, the prosecution failed to connect

the petitioner with the alleged conspiracy. As far as the petitioner is

concerned, at the most, what can be inferred is that Annexure A1 FIR

contains allegations of the offences referred to above. But, the

complaint does not `disclose' the offences alleged. The Court must be

satisfied that an offence is `disclosed' by the materials including

documents, circumstances, etc. substantiating the allegations in the

complaint (vide: Manoj Abraham v. Chandrasekharan Nair (2018

(1) KLT 174).

19. I am of the view that the petitioner has placed

materials, which are of sterling and impeccable quality, to rule out the

assertions contained in Annexure A1 FIR. Those materials are sufficient

to reject and overrule the factual assertions in the FIR against the

petitioner. Therefore, the proceedings initiated against the petitioner

would result in abuse of the process of the Court and would not serve

the ends of justice.

20. FIR No.2 of 2023 of the VACB, Southern Range,

Thiruvananthapuram and all further proceedings pursuant to it, as

against the petitioner, stand quashed. It is made clear that the

observations made in this order are restricted to the petitioner alone.

The Crl.M.C. is allowed.

Sd/-

K.BABU Judge

TKS

PETITIONER'S ANNEXURES Annexure A1 A TRUE COPY OF THE FIR 02/2023 DATED 02/05/2023 OF VACB, SOUTHERN RANGE, THIRUVANANTHAPURAM. Annexure A2 A TRUE COPY OF THE LETTER NO. 1/151065/2023 DATED 20.07.2023 ALONG WITH THE ENQUIRY REPORT NO. PE-02/2022/SIU-1, DATED 08/11/2022 CONDUCTED BY THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT-1, THIRUVANANTHAPURAM Annexure 3 A TRUE COPY OF SALE DEED NO. 178/1983 EXECUTED BY SMT. VARAMGI AMMA AND OTHERS (LEGAL HEIRS OF THE LANDOWNER) Annexure A4 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO.

1494/16 EXECUTED BY ACCUSED NO.3/VALSAMMA IN FAVOR OF BENJAMIN BEFORE THE SUB REGISTRY OFFICE, THIRUVANANTHAPURAM Annexure A5 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO.

1495/16 EXECUTED BY ACCUSED NO.. 3/VALSAMMA IN FAVOR OF MATTHEW Annexure A6 A TRUE COPY OF EXTRACT OF THANDAPER ACCOUNT NO.

49099 OF KADAKAMPALLY VILLAGE Annexure A7 A TRUE COPY OF EXTRACT OF THANDAPER ACCOUNT NO.

49100 OF KADAKAMPALLY VILLAGE Annexure A8 A TRUE COPY OF CERTIFIED COPY OF SETTLEMENT DEED NO. 2631/2017 EXECUTED BY ACCUSED NO.

3/VALSAMMA IN FAVOR OF BENJAMIN MICHEAL Annexure A9 A TRUE COPY OF EXTRACT OF THANDAPER NO. 48916 OF KADAKAMPALLY VILLAGE Annexure A10 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO.

222/17 EXECUTED BY BENJAMIN IN FAVOR OF RAJESH JOSEPH BEFORE THIRUVANANTHAPURAM SUB-REGISTRY OFFICE Annexure A11 A TRUE COPY OF CERTIFIED COPY OF SALE DEED NO.

1230/17 EXECUTED BY MATHEW TO RAJESH JOSEPH Annexure A12 A TRUE COPY OF RELEVANT PAGES OF THE DIGITAL DATA (IN COMPACT DISC) COLLECTED FROM KERALA LAND INFORMATION MISSION (KLIM)

Annexure A13 A TRUE COPY OF THE JUDGMENT DATED 7.12.2022 IN

Annexure A14 A TRUE COPY OF PROCEEDINGS BEARING NO. B12- 2861/2019 DATED 12/05/2023 ISSUED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM Annexure A15 A TRUE COPY OF THE REPRESENTATION DATED 5.07.2023 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.

TKS