Kerala High Court
Gopalakrishna Pillai vs State Of Kerala Rep. By Public ... on 22 October, 2024
2024:KER:79353
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 22ND DAY OF OCTOBER 2024/30TH ASWINA, 1946
WP(CRL.) NO.213 OF 2023
IN THE MATTER OF QUASHING ENTIRE PROCEEDINGS AGAINST THE
PETITIONER IN C.C.No.351/2016 [F.I.R. VC No.2/2006/SCE OF
SPECIAL CELL ERNAKULAM] ON THE FILE OF THE COURT OF ENQUIRY
COMMISSINER AND SPECIAL JUDGE, MUVATTUPUZHA
PETITIONER/ACCUSED:
M.GOPALAKRISHNA PILLAI, AGED 71 YEARS,
S/O.MADHAVAN PILLAI,FORMERLY U.D.CLERK,
SUB REGISTRAR OFFICE, ERNAKULAM, USHAS HOUSE,
PALACHUVADU,KAKKANAD,ERNAKULAM,, PIN - 682030.
BY ADVS.
T.ASAFALI
LALIZA.T.Y.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI, PIN - 682018.
2 THE DIRECTOR,
THE VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM, PIN - 695033.
3 DEPUTY INSPECTOR OF POLICE, VACB,
SPECIAL CELL POLICE STATION,
ERNAKULAM, KOCHI, PIN - 682017.
W.P (Crl) No.213 of 2023
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BY ADVS.
S.REKHA, SENIOR PUBLIC PROSECUTOR
A.RAJESH, SPECIAL PUBLIC PROSECUTOR (VIGILANCE)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 22.10.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Dated, this the 22nd day of October, 2024
The petitioner is the sole accused in C.C.No.351/2016 of the
Special Court, Muvattupuzha. The petitioner challenges the entire
proceedings in C.C.No.351/2016 and seeks to quash the same as
an abuse of the process of law. The offences alleged are under
Section 13(1)(e), read with Section 13(2) of the Prevention of
Corruption Act.
2. The allegation is that the investigation was conducted in a
shabby and improper manner, with preconceived notion and
deliberately omitted to take into account certain important items
of income of the petitioner. Certain vital documents produced by
the petitioner were not taken into consideration, for flimsy
reasons. A sum of Rs.16,43,389/- was wrongly calculated as
disproportionate income. The assets were over-estimated and the
income, under-estimated. An agreement for sale entered into by
the petitioner with one K.R.Krishna Kumar and the income thereof
was not reckoned, for the reason that the agreement was not
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registered. It was specifically pointed out that a shopping complex
at Palachuvadu, which was in the name of the petitioner's son,
Sri.Prasanth, pursuant to a gift deed executed by his maternal
uncle one K.R.Anil Kumar, was also treated and reckoned as the
asset of the petitioner, obtained during the check period. The
value of the said property is more than Rs.5 lakhs. The same is
liable to be excluded from the total assets acquired during the
check period. According to the learned counsel, a total sum of
Rs.8,70,000/- under various heads, is also liable to be included as
income. On such premise, it is the contention of the petitioner that
the Final Report filed is liable to be set aside and all proceedings
against the petitioner before the Special Court, liable to be
quashed.
3. In answer to the same, learned Special Public Prosecutor
(Vigilance) would submit that the petitioner earlier approached
this Court as against the Final Report filed then. The contentions of
the petitioner was accepted by this Court and a further
investigation was ordered. The anomalies in the investigation
detailed by the counsel for the petitioner were taken note of in
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paragraph no.6, based upon which, further investigation was
ordered, vide Ext.P10. After conducting such further investigation,
a supplementary Final Report was filed. The same was accepted
by the Special Court, at which stage, the instant Writ Petition (Crl.)
is filed, enumerating certain grounds. Learned Special Public
Prosecutor would submit that an itemwise analysis of the assets
and income of the petitioner is not liable to be undertaken by this
Court, in exercise of its powers under 226 of the Constitution.
4. Having heard the learned counsel appearing for the
respective parties, this Court is not inclined to look into the
various items of income and assets and to undertake a threadbare
analysis, as to whether the same is liable to be included/excluded,
or not. This Court notice that the petitioner challenged the original
Final Report preferred by the investigating agency with certain
specified items of objection as regards the way in which the
income and assets of the petitioner were treated by the
investigating agency. This is specifically referred to in Ext.P10
judgment, at page no.4, paragraph no.6. As many as five specific
objections are seen taken note of. Thereafter, this Court directed
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further investigation to be conducted. The same was done and a
supplementary Final Report was filed, which was accepted by the
Special Court. It is at this stage that the petitioner had again
chosen to approach this Court under Article 226 of the
Constitution, alleging anomalies in the manner in which income
and assets of the petitioner are treated by the investigating
agency.
5. This Court is of the opinion that this exercise, as sought to be
done by the petitioner, cannot go on indefinitely. The petitioner
had raised certain specific grounds in the earlier round, which
were directed to be addressed. According to the learned Public
Prosecutor, the same were addressed afresh and a supplementary
Final Report has been filed. The reasons as to why each item has
been included/excluded is narrated in the counter affidavit filed by
the Investigating Officer before this Court. It is neither feasible,
nor proper to look into the correctness of the inclusion/exclusion of
each item of income and asset in exercise of the powers of this
Court under Article 226 of the Constitution. This Court is of the
definite opinion that, unless a glaring instance of an inclusion/
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exclusion of an asset or an income, based on a broad principle, is
espoused, the exercise under Article 226 cannot be made to
ascertain the correctness of such inclusion or exclusion of an item
of income or asset. This Court also take stock of the fact that the
correctness of such inclusion or exclusion may also depend upon
evidence to be adduced by the parties, which exercise is certainly
not contemplated under Article 226.
6. In the circumstances, the relief sought for in this Writ Petition
are refused, except in respect of one item, which pertains to a
shopping complex at Palachuvadu in the name of the petitioner's
son. The same has been treated as an asset acquired by the
petitioner during the check period. The petitioner had produced
Ext.P8 document, which is titled as a gift deed, executed on
27.12.2004 by the maternal uncle of the donee, the minor son of
the petitioner then. In further support, Ext.P9 possession
certificate is also produced.
7. If this document is to be treated as valid and genuine, the
inclusion of the said asset as an asset acquired by the petitioner
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during check period may have to be revisited. Per contra, if the
investigating agency has got any special reason or explanation for
including this particular property, even after perusing and
addressing Ext.P8 document, the same have to be stated or
explained. This Court therefore directs the investigating agency to
file an additional report before the Special Court as to why that
particular asset has been reckoned as an asset of the petitioner,
dehors Ext.P8 document, unless the same has already been done
in the supplementary Final Report filed. In respect of this item, it
will be for the Special Court to consider the correctness and the
propriety of inclusion of the said item, as an asset.
8. Learned counsel for the petitioner wants his liberty to be
kept open to file necessary discharge application in respect of the
original Final Report, as also, the supplementary Final Report. Such
liberty is granted, however, subject to the condition that grounds,
which are already urged and considered by this Court in the two
rounds of litigation, cannot be re-agitated again.
9. Learned counsel for the petitioner submits that the petitioner
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is aged 78 years and he is bedridden. In such circumstances,
learned counsel would seek a direction excluding the personal
presence of the petitioner. it will be open for the petitioner to file
necessary application before the Special Court in this regard and
the Special Court will consider favourably the request to exclude
the petitioner's personal appearance, except on occasions where
such appearance is a must for the progress of the proceedings
before the trial court.
With the aforesaid directions, this Writ Petition will stand
disposed of.
Sd/-
C.JAYACHANDRAN, JUDGE
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT-P1 CERTIFIED COPY OF THE FIR VC
NO.2/2006/SCE DATED 17.2.2006.
EXHIBIT-P2 CERTIFIED COPY OF THE FINAL REPORT DATED
7.4.2011 FILED BY THE THIRD RESPONDENT
BEFORE THE SPECIAL VIGILANCE COURT,
THRISUR.
EXHIBIT-P3 ATTESTED TRUE COPY OF THE PASS BOOK
COVERING THE PERIOD FROM 9.7.1994 TO
24.9.2002.
EXHIBIT-P4 TRUE COPY OF THE SALE AGREEMENT DATED
24.1.2005 EXECUTED BETWEEN THE
PETITIONER AND KRISHNA KUMAR.
EXHIBIT-P5 TRUE COPY OF THE AFFIDAVIT SWORN TO
BEFORE A NOTARY PUBLIC BY N.DEVAKI AMMA
REGARDING THE PAYMENT OF A SUM OF
RS.1,50,000 DURING THE CHECK PERIOD.
EXHIBIT-P6 TRUE COPY OF THE LEASE DEED DATED
24.6.2003 EXECUTED BETWEEN THE
PETITIONER AND THE TENANT
MR.M.M.SIDDIQUE.
EXHIBIT-P6(A) LEGIBLE COPY OF EXHIBIT P6 DOCUMENT.
EXHIBIT-P7 CERTIFIED COPY OF THE LETTER ISSUED BY
THE CHIEF MANAGER, M.G.ROAD, ERNAKULAM
TOGETHER WITH BANK STATEMENT OF THE
PETITIONER FOR THE PERIOD FROM 3.7.2003
TO 31.3.2006.
EXHIBIT-P8 TRUE COPY OF THE GIFT DEED VIDE
NO.3157/2005 OF SRO THRIKKAKARA.
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EXHIBIT-P9 TRUE COPY OF THE CERTIFICATE DATED
12.4.2012 ISSUED BY THE SECRETARY,
THRIKKAKARA MUNCIPALITY TO PROVE THE
CHANGE OF MUTATION IN FAVOUR OF DONEE
MR.PRASANTH
EXHIBIT-P10 TRUE COPY OF THE JUDGMENT DATED 3RD
AUGUST 2022 MADE IN W.P. (CRL) NO.321 OF
2022 OF THIS HON'BLE COURT.
EXHIBIT-P11 CERTIFIED COPY OF THE SUPPLEMENTARY
CHARGE SHEET DATED 23RD NOVEMBER 2022
VIDE NO. 08/2022 BEFORE THE SPECIAL
COURT ,MUVATTUPUZHA.
EXHIBIT-P12 CERTIFIED COPY OF THE CHARGE DATED
11.02.2021 MADE BY SPECIAL COURT,
THRISSUR.
