K.V.Johny vs State Of Kerala
2024 Latest Caselaw 33470 Ker

Kerala High Court

K.V.Johny vs State Of Kerala on 21 November, 2024

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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

   THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946

                     CRL.MC NO. 11090 OF 2023

           CRIME NO.3/2023 OF VACB, THRISSUR, Thrissur

PETITIONERS/1ST AND 3RD ACCUSED:

    1     K.V.JOHNY
          AGED 61 YEARS
          SON OF KUNJUVAREETH KIDANGAN HOUSE, MALAYATTOOR P.O,
          ERNAKULAM DISTRICT, PIN - 683587

    2     THRESSIAC.C
          WIFE OF DAVIS JOHN PYNADATH HOUSE, CHALAKUDY P.O,
          THRISSUR, PIN - 680307


          BY ADVS.
          PEEYUS A.KOTTAM
          RAGESH CHAND R.G.




RESPONDENT/STATE AND 4TH ACCUSED:

    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, COCHIN, PIN - 682031

    2     DEPUTY SUPERINTENDENT OF POLICE
          VIGILANCE ANTI-CORRUPTION BUREAU, THRISSUR,
          PIN - 678001

    3     O.C.YOHANNAN @ JAMES
          SON OF O.J.OOKKEN, POOVATHUSSERY, PARAKKADAVU P.O,
          PIN - 683579
 Crl.M.C.No. 11090 of 2023

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ADDL. R4 NARAYANAN. P.
         S/O PEETHAMBARAN,
         PUTHIYATTIL HOUSE, KORATTY SOUTH P.O,
         THRISSUR -680308
         ADDITIONAL R4 IS IMPLEADED AS R4 AS PER THE
         ORDER DATED 24/10/2024 IN CRL MA 1/2024.


              BY ADV T.U.SUJITH KUMAR
                 ADV.A.RAJESH-SPECIAL PUBLICPROSECUTOR(VIGILANCE)
                 ADV.REKHA S.- SENIOR PUBLIC PROSECUTOR


       THIS     CRIMINAL    MISC.     CASE   HAVING    COME   UP   FOR
ADMISSION ON 21.11.2024, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 Crl.M.C.No. 11090 of 2023

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                            O R D E R

Dated this the 21st day of November, 2024

The petitioners herein are accused nos.1 and 3 in

Annexure-A1 F.I.R. bearing no.3/2023/TSR of the Vigilance

and Anti-Corruption Bureau, Thrissur ('V.A.C.B.', for

short). They seek to quash Annexure-A1 F.I.R. by invoking

the powers of this Court under Section 482 of the Code of

Criminal Procedure.

2. Heard Sri.Peeyus A.Kottam, learned counsel for the

petitioners, Sri.A.Rajesh, learned Special Public

Prosecutor (Vigilance) and Sri.T.U.Sujith Kumar, learned

counsel for the additional 4th respondent, who was the

defacto complainant.

3. Learned counsel for the petitioners would submit

that, Annexure-A2 Gift deed is not in the name of any of

the accused persons, but in the name of the Panchayat; and

the 1st accused/1st petitioner had purchased the said

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property only in his respective capacity as the Secretary

at the relevant time, for and on behalf of the Koratty

Grama Panchayat. Learned counsel would invite the

attention of this Court to Annexure-A6 application dated

18.12.2014, which was one preferred by Yohannan @ James

seeking to surrender five cents of land (with a length of

19.27 meters and width of 10.5 meters). The purpose stated

in Annexure-A6 is to dig a pond for effecting the lift

irrigation project at a place called Koottalappadam, a

vast extent of paddy fields. This application was

considered in the Grama Panchayat meeting, and the same

was allowed vide Annexure-A5 dated 25.02.2015. The reasons

for accepting the said application is contained in

Annexure-A7 minutes of the Grama Sabha, which took note of

the extreme scarcity of water in the area concerned.

Pursuant there to, Annexure-A9 application was preferred

by the Secretary Koratty Grama Panchayat on 10.06.2015

seeking to exclude collection of land tax in respect of

the property, since it was surrendered to the Panchayat.

All the dates afore-referred assume significance in the

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context of the fact that the 1st petitioner/1st accused took

charge as the Secretary of the Grama Panchayath only on

25.08.2016 and the 2nd petitioner/2nd accused took charge as

the Assistant Engineer, L.S.G.D., Koratty Grama Panchayat

only on 27.06.2015. Learned counsel would emphasize that

all the afore-referred acts took place before the accused

persons took charge in their respective offices. It was

then pointed out that, Annexure-A9 application seeking

exemption from payment of tax was not considered by the

Revenue Divisional Officer for the reason that there is no

registered document in favour of the Panchayat. It is

accordingly that Annexure-A2 Gift deed was executed by the

said Yohannan @ James in favour of the Panchayat

represented by its Secretary, the 1st petitioner/1st

accused. On the allegation that there was illegal

reclamation of the land in violation of the Kerala

Conservation of Paddy Land and Wetland Act, 2008, learned

counsel would rely on a judgment of this Court, produced

at Annexure-A13, which held that since a paddy land

includes a pond, the prohibition under the Kerala

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Panchayat Building Rules, 2011, cannot be understood to

mean that digging a well or a pond inside a paddy land

would amount to conversion or reclamation of paddy land.

Learned counsel would also point out that though the

defacto complainant (additional R4 herein) preferred a

private complaint before the Special Court concerned and

the same was forwarded for preliminary enquiry, the

Vigilance team have filed a negative report, indicating

that the commission of the offence is not disclosed. Only

departmental action as against the persons in-charge then

for the alleged violation of the procedure/norms was

recommended. It was in rejection of that report that the

learned Special Judge, for fanciful reasons, directed the

registration of the crime leading to Annexure-A1 F.I.R.

According to the learned counsel, Annexure-A1 F.I.R. has

no legs in law, and the same is liable to be quashed.

4. Learned Special Public Prosecutor (Vigilance) would

confirm the fact that a Vigilance enquiry was ordered by

the Special Court concerned, pursuant to a private

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complaint preferred by the defacto complainant/R4, and

that a negative enquiry report was filed, suggesting

departmental action alone. Learned Special Public

Prosecutor would submit that in the enquiry conducted by

the Vigilance team, no offence under the Prevention of

Corruption Act was disclosed.

5. Per contra, these submissions were seriously opposed

by the learned counsel for the defacto complainant.

Learned counsel would point out that the intention of

Sri.Yohannan @ James was to get a road constructed upto

his paddy field having an extent of 1 acre, with an eye

fixed on selling the same by dividing it into several

plots, after reclamation. The idea of digging a pond

allegedly for the purpose of irrigation was only a ruse to

get the road constructed in favour of the said

Sri.Yohannan @ James. It was in such circumstances that

the private complaint was preferred. Learned counsel would

also submit that an order has been passed by the District

Collector concerned, directing to restore the paddy land

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to its original position after filling up the pond dug.

6. Having heard the learned counsel appearing for the

respective parties, this Court finds substantial merit in

the submissions made by the learned counsel for the

petitioner. As rightly pointed out, the petitioners took

charge on 25.08.2016 and 27.06.2015 respectively in their

offices. The proceedings for relinquishing the land of

Sri. Yohannan @ James vide Annexure-A6, the approval of

the Panchayat to accept such relinquishment vide Annexure-

A5, the decision of the Panchayat reflected in Annexure-A7

minutes detailing the reasons for such acceptance etc.,

took place before the petitioners assumed their respective

offices. The same is the situation with respect to

Annexure-A9 request by the then Secretary to the Revenue

Divisional Officer to exclude the subject land from the

purview of remittance of land tax. If that be so, the

petitioners cannot be roped in, in respect of the alleged

crime, dehors and independent of the fact, whether such

crime is liable to be registered or not.

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7. Coming to the facts, it has been found by the

investigating team, based on a preliminary enquiry, that

no offence, whatsoever, has been disclosed in the enquiry.

All what is seen alleged is the violation of the

procedure/norms, and what has been suggested is a

departmental action. If at all such departmental action is

to be initiated, the same has to be done as against the

Secretary and the Assistant Engineer, L.S.G.D., who were

officiating at the relevant time when the decisions were

taken, allegedly in violation of the norms. Admittedly,

the petitioners were not the office bearers at the

relevant time. If that be so, there cannot be any reason

which would justify the petitioners being proceeded

against as per Annexure-A1 F.I.R., so as to fasten a

criminal liability on them. This Court specifically take

stock of the fact that all the transactions which are

recorded in Annexure-A5, A6, A7, A8 and A9 took place

before the petitioners assumed their office. All what has

transpired, after petitioners assumed office, is the

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execution of Annexure-A2 Gift deed, that too, in favour of

the Koratty Grama Panchayat. The petitioner had

represented the said Panchayat only in his capacity as the

Secretary, at the relevant time.

8. The overall facts and circumstances would not reveal

any incriminating circumstances as against the

petitioners. In such state of affairs, Annexure-A1 F.I.R.

cannot survive in the test of law. It is relevant to note

that F.I.R. was registered only on the order passed by the

Special Court which rejected the preliminary enquiry

report, which was negative as regards the disclosure of

the cognizable offence. The very premise in the F.I.R.

that five cents of land was transferred in favour of the

1st accused/1st petitioner as a gift for the undue advantage

given to A4 itself is completely wrong, inasmuch as,

Ext.A2 gift deed is not in favour of the 1 st accused, but

in favour of the Panchayat. Therefore, this Court is of

the opinion that, the allegation in the F.I.R. does not

disclose the commission of a cognizable offence,

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wherefore, non interference in this Crl.M.C. would result

in miscarriage of justice. Annexure-A1 is therefore,

hereby quashed by invoking the powers under Section 482 of

the Cr.P.C.

Sd/-

C. JAYACHANDRAN JUDGE TR

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APPENDIX OF CRL.MC 11090/2023

PETITIONER ANNEXURES

Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO.3/2023/TSR OF VACB, THRISSUR PRODUCED BEFORE THE HON'BLE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THRISSUR

Annexure A2 THE TRUE COPY OF THE GIFT DEED NO.

1519/2017 OF ANNAMANADA SRO EXECUTED BY 4TH ACCUSED IN FAVOUR OF THE KORATTY GRAMA PANCHAYATH Annexure A3 THE TRUE COPY OF TAX RECEIPT DATED 17.11.2017 SHOWING PAYMENT OF PROPERTY TAX IN THE NAME OF THE PANCHAYATH FOR THE YEAR 2017-2018

Annexure A4 THE TRUE COPY OF THE ASSET REGISTER MAINTAINED BY THE KORATTY GRAMA PANCHAYATH

Annexure A5 THE TRUE COPY OF THE MINUTES OF THE DECISION NO. 2 (15) OF THE COMMITTEE MEETING HELD ON 25.02.2015 OF KORATTY GRAMA PANCHAYATH

Annexure A6 THE TRUE COPY OF THE LAND RELINQUISHMENT APPLICATION SUBMITTED BY THE 3RD RESPONDENT/4TH ACCUSED TO THE PANCHAYATH DATED 18.12.2014

Annexure A7 TRUE COPY OF THE MINUTES OF THE GRAMA SABHA HELD ON 05.07.2015

Annexure A8 THE TRUE COPY OF THE MINUTES OF THE GRAMA SABHA HELD ON 13.07.2014 IN THE PRESENCE OF THE PANCHAYATH PRESIDENT

Annexure A9 THE TRUE COPY OF THE LETTER DATED

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10.06.2015 FORWARDED BY THE SECRETARY, KORATTY GRAMA PANCHAYH TO THE REVENUE DIVISIONAL OFFICER, THRISSUR FOR EFFECTING MUTATION IN THE NAME OF THE PANCHAYATH AND TO AVOID THIS PROPERTY FROM PAYMENT OF PROPERTY TAX IN THE LIGHT OF LAND RELINQUISHMENT MADE BY THE 3RD RESPONDENT

Annexure A10 THE TRUE COPY OF THE RECEIPT SHOWING THE DETAILS OF THE PAYMENT MADE BY THE PANCHAYATH FOR PURCHASING THE STAMP DUTY AND REGISTRATION FEE FOR EXECUTION OF THE GIFT DEED IN FAVOUR OF THE PANCHAYATH,

Annexure A11 THE TRUE COPY OF THE FULLY VOUCHED CONTINGENT BILL PERTAINING TO REGISTRATION OF THE GIFT DEED AND EXPENSES MET BY THE PANCHAYTH

Annexure A12 THE TRUE COPY OF THE DECISION TAKEN BY THE PANCHAYAT COMMITTEE HELD ON 07.10.2017

Annexure A13 THE TRUE COPY OF THE JUDGMENT REPORTED IN 2022 KHC 903 (SHAJU C.J. VS. STATE OF KERALA)

Annexure A14 THE TRUE COPY OF THE REPORT SUBMITTED BY THE TAHSILDAR, CHALAKUDY TO THE DISTRICT COLLECTOR DATED 18.12.2014 WITH CATEGORIC FINDING THAT NO ILLEGAL CONVERSION OR DEVELOPMENTS EFFECTED IN THE 3RDRESPONDENT'S PROPERTY

Annexure A15 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PRESIDENT TO THE REVENUE MINISTER DATED 20.07.2018