Kerala High Court
N.M. Nahas vs State Of Kerala on 6 August, 2025
2025:KER:58673
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
CRL.MC NO. 1264 OF 2023
AGAINST THE FINAL REPORT IN FIR NO.VC 11/17/SCE DATED 30.03.2022 PENDING
ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA
PETITIONER/ACCUSED:
N.M. NAHAS
AGED 60 YEARS
S/O. LATE M. MOIDEEN, SUPERINTENDING ENGINEER (RETD.),
RESIDING AT FLAT NO.6124, PRESTIGE NEPTUNE COURT YARD,
MARINE DRIVE, KOCHI, PIN - 682018
BY ADV SRI.BABU JOSEPH KURUVATHAZHA
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
2 THE DIRECTOR
VIGILANCE & ANTI-CORRUPTION BUREAU, VIGILANCE DIRECTORATE,
THIRUVANANTHAPURAM, PIN - 695033
3 THE SUPERINTENDENT OF POLICE
VIGILANCE & ANTI-CORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM,
KOCHI, PIN - 682017
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.07.2025,
THE COURT ON 06.08.2025 PASSED THE FOLLOWING:
Crl.M.C. No. 1264 of 2023
2
"C.R"
ORDER
Dated this the 6th day of August, 2025
This Criminal Miscellaneous Case has been filed under
Section 482 of the Code of Criminal Procedure, 1973,
seeking to quash all further proceedings pursuant to
Annexure-A14 Final Report in FIR No.V.C. 11/17/SCE of
VACB, Special Cell, Ernakulam, now pending as C.C. No.6 of
2022 on the files of the Court of the Enquiry Commissioner
and Special Judge, Muvattupuzha. The petitioner herein is
the sole accused in the above case.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor, in detail. Perused the
relevant materials available and the decisions placed by the
learned Public Prosecutor.
3. In this matter, the prosecution allegation is that,
the petitioner, who retired as Superintending Engineer,
LSGD, South Circle, Thiruvananthapuram, while working as
a Government servant during the period from 01.01.2006
to 07.10.2017 had amazed assets worth Rs.5,76,00,687.24,
which is 149.22% in excess of his known sources of income
and thereby committed offence punishable under Section
13(1)(e) read with 13(2) of the Prevention of Corruption Act,
1988 [hereinafter referred as 'P.C. Act' for short].
4. While canvasing interference of the Final Report
by way of quashment, it is submitted by the learned
counsel for the petitioner that, in this case, by registering
Annexure-A8 FIR as on 05.10.2017, as a result of a quick
verification done earlier, the petitioner/accused alleged to
have committed offences punishable under Section Section
13(1)(e) read with 13(2) of the P.C. Act and the allegation of
the prosecution was that the petitioner amazed
disproportionate asset to the tune of Rs.2,59,83,805/-,
which is 82.80% of his total income. Aggrieved by
Annexure-A8 FIR, the petitioner had filed Crl.M.C.
No.7141/2017 before this Court and the same was disposed
of as per Annexure-A11 order dated 09.01.2018. As per
Annexure-A11 order, the grievance of the petitioner herein
as regards to non consideration of Income Tax Returns
submitted by the family members of the petitioner by the
Investigating Officer, before submitting the quick
verification report had been addressed and finally a
direction was given to the Investigating Officer to consider
the Income Tax Returns and the bank statements of the
petitioner and his family members before proceeding
further in the matter. Pursuant to the said direction,
Annexure-A12 summons was issued by the Investigating
Officer directing the petitioner to appear before the Office
of the Dy.S.P.-1, Special Cell Ernakulam on 23.01.2018. The
petitioner appeared before the Investigating Officer and
submitted Annexure-A13 representation along with 11
documents. However, without properly considering the
documents produced by the petitioner, Annexure-A14 Final
Report was filed alleging that the petitioner/accused
amazed assets worth Rs.5,76,00,687.24, which is 149.22%
in excess of his known sources of income.
5. According to the learned counsel for the
petitioner, when this matter came up for consideration
before this Court, as per the order dated 29.10.2024, this
Court directed the petitioner to produce Income Tax Returns
for the years pertaining to 2007-2008 upto 2018-2019, with
direction to consider the same by the Investigating Officer.
Even though, additional statement has been filed by the
Vigilance, the grievance of the petitioner was not
addressed, particularly, in the matter of calculation of the
rent obtained by the petitioner and the income of his family
members. Pointing out the said anomaly, a reply statement
also has been filed by the petitioner.
6. In gist, the point argued by the learned counsel
for the petitioner is that, the income of the petitioner from
various sources, particularly, the income he derived from
the rent was not properly considered by the Investigating
Officer and if so, the finding of the Investigating Officer
should be something different from what is alleged in the
Final Report.
7. In response to this argument, the learned Public
Prosecutor would submit that, since the grievance of the
petitioner, as directed by this Court as per the order dated
29.10.2024 has been addressed as stated in the additional
report, there is no reason to interfere with the Final Report,
where materials are in abundance to go for trial.
8. It is pointed out by the learned Public Prosecutor
that, in this matter, the income assessed as that of the
petitioner is for the period from 2005-2017. According to
the learned Public Prosecutor, the choice of the period must
necessarily be determined by the allegations of fact on
which the prosecution is founded and rests. However, the
period must be such as to enable a true and comprehensive
picture of the known sources of income and the pecuniary
resources and property in possession of the public servant
either by himself or through any other person on his behalf,
which are alleged to be so disproportionate. In the facts and
circumstances of a case, a ten year period cannot be said
to be incapable of yielding such a true and comprehensive
picture. The assets spilling over from the anterior period, if
their existence is probabilised would, of course, have to be
given credit to on the income side and would go to reduce
the extent and the quantum of the disproportion, as held by
the Apex Court in the decision reported in [1987 KHC
771 : 1987 Supp SCC 379 : 1988 SCC (Cri) 91] State
of Maharashtra v. Pollonji Darabshaw Daruwalla.
9. It is also pointed out that, when non exclusion of
certain alleged income of relatives is the allegation, it could
not be considered at the pre-trial stage and the same could
be considered by the Special Court during the trial alone. In
this regard, the learned Public Prosecutor placed decision of
the Apex Court reported in [2009 KHC 6147 : 2009 (15)
SCC 533 : 2011 (99) AIC 97] State of M.P. v. Virender
Kumar Tripathi, wherein in paragraph No.10 it has been
observed that, so far as the non - exclusion of certain
alleged income of relatives is concerned, it needs to be
noted that these are matters of evidence and in such
matters, the decision of this Court in State of Orissa v.
Debendra Nath Padhi, JT 2004 (10) SC 303 is relevant. The
High Court's judgment in this aspect does not suffer from
any infirmity.
10. Another decision of the Apex Court reported in
[2022 KHC OnLine 6920 : 2022 KHC 6920 : 2022 (2)
KLD 700 : 2022 SCC OnLine SC 1150] State through
Deputy Superintendent of Police v. R.Soundirarasu ,
has been placed by the learned Public Prosecutor with
reference to paragraph Nos.78 to 80. In paragraph Nos.78
to 80, the Apex Court held as under:
78. The High Court has acted completely
beyond the settled parameters, as discussed
above, which govern the power to discharge the
accused from the prosecution. The High Court
could be said to have donned the role of a
chartered accountant. This is exactly what this
Court observed in the case of Thommandru
Hannah Vijayalakshmi @ T. H. Vijayalakshmi
(supra). The High Court has completely ignored
that it was not at the stage of trial or considering
an appeal against a verdict in a trial. The High
Court has enquired into the materials produced
by the accused persons, compared with the
information complied by the investigation agency
and pronounced a verdict saying that the
explanation offered by the accused persons
deserves to be accepted applying the doctrine of
preponderance of probability. This entire exercise
has been justified on account of the investigating
officer not taking into the explanation offered by
the public servant and also not taking into
consideration the lawful acquired assets of the
wife of the public servant i.e. the Respondent No.
2 herein.
79. By accepting the entire evidence put
forward by the accused persons applying the
doctrine of preponderance of probability, the case
put up by the prosecution cannot be termed as
"groundless". As observed by this Court in C. D. S.
Swami (supra) that the accused might have made
statements before the investigating officer as to
his alleged sources of income, but the same,
strictly, would not be evidence in the case.
80. S.13(1)(e) of the Act 1988 makes a
departure from the principle of criminal
jurisprudence that the burden will always lie on
the prosecution to prove the ingredients of the
offences charged and never shifts on the accused
to disprove the charge framed against him. The
legal effect of S.13(1)(e) is that it is for the
prosecution to establish that the accused was in
possession of properties disproportionate to his
known sources of income but the term "known
sources of income" would mean the sources
known to the prosecution and not the sources
known to the accused and within the knowledge
of the accused. It is for the accused to account
satisfactorily for the money / assets in his hands.
The onus in this regard is on the accused to give
satisfactory explanation. The accused cannot
make an attempt to discharge this onus upon him
at the stage of S.239 of the CrPC. At the stage of
S.239 of the CrPC, the Court has to only look into
the prima facie case and decide whether the case
put up by the prosecution is groundless.
11. Having addressed the rival submissions, at
present, the grievance of the petitioner is that, the Income
Tax Returns showing the income of the family members of
the petitioner, particularly that of the income received by
way of rent by the petitioner were not properly considered.
But, according to the learned Public Prosecutor the same
has been specifically considered as detailed in the
additional statement.
12. Going by the additional statement, the income
declared before the Income Tax authorities by the petitioner
is tabled in page No.9, as under:
Assessment Income Income from Income Agricultural Tax paid
year from salary house from income
property other
source
2005-2006 167637 19327 12000.00 13827
2007-2008 209250 17500
2008-2009 269672 109550 37740 12000.00 7294
2009-2010 347735 6837 12000.00 9360
2010-2011 405532 20000.00 14012
2011-2012 447373 78900 1220 15000.00 18056
2012-2013 602702 100950 1770 20000.00 54946
2013-2014 1064635 97779 10000.00 142916
2014-2015 1064635 97779 10000.00 142916
2015-2016 987461 127153 134481
2016-2017 1097797 168460 159227
Total 66,64,429 7,80,571 66,894 1,11,000 7,14,535
Grand total 83,37,429.00
13. Similarly, the income declared before the Income
Tax authorities by Smt.Anitha Nahas, wife of the petitioner
is extracted hereunder:
Asses Income Capital Income Busines Income Agricu Tax paid
sment from gain from s from ltural
year house salary income other incom
property source e
2007- 54394 178986 194309 6000 16198
2008- 47250 35690 30867 40000 6000 Nil
2009- 126960 16618 96781 122150 10000 9354
2010- 49620 290705 115875 20000 26870
2011- 16755 100516 547652 40000 51968
2012- 356 189000 410000 40000 35918
2013- 56111 462028 49000 30000 27515
2014- 158460 283605 12573
2015- 133478 332382 69522 15000 25900
2016- 482912 33658 582039 5564
2017- 626021 22800 20420
1752317 1350067 582129 415927 1274111 16700 232280
Grand Total 55,41,551
14. The income declared before the Income Tax
authorities by Sri.Shalif M.Nahas, son of the petitioner is
extracted hereunder:
Assessment Refund Income Business Income Agricultur Tax paid
year from income from al income
house other
property source
2010-11 99061 69340 9907
2011-12 36840 314916 390 8096
2012-13 262430 37450 7646
2013-14 275990 39428 3080 7300
2014-15 Returns not filed for the assessment year
2015-16 255500 544964 186089 141333
2016-17 246400 28600 106876 10604
Total 36840 1355236 749503 365779
Grand Total 25,07,354.00
15. The income declared before the Income Tax
authorities by Smt.Simna Nahas, daughter of the petitioner
is extracted hereunder:
Assessmen Refund Income Business Income Agricultur Tax paid
t year from income from al income
house other
property source
2013-14 126000 18000
2014-15 26000 168000
2015-16 175840 25120
Total 26000 4,69,840
Grand Total 46,98,400.00
16. In the additional statement, it has been
specifically submitted that, even after considering the
income of the family members of the petitioner and his
other source of income as stated therein, no substantial
change as regards the finding of amazement of
disproportionate assets by the petitioner, as alleged by the
prosecution in the Final Report.
17. Going by the additional statement filed by the
Deputy Superintendent of Police, VACB, Special Cell,
Ernakulam, which is the summary of assessment of income
of the petitioner and his family members, it could be
gathered that the grievance raised by the petitioner has
been addressed and according to the VACB, even after
considering the income of the family members of the
petitioner and his other source of income, the same would
not make any substantial change in the income and
expenditure of the petitioner during the check period. In
fact, as rightly pointed out by the learned Public Prosecutor,
non-exclusion of the Income Tax Returns filed by the family
members of the petitioner and the income he derived from
rent, could not be considered by the Court at the pre-trial
stage and the same can be considered only during trial.
18. Similarly, the power available to a court of law to
discharge an accused can be exercised based on evaluation
of the prosecution materials, with a view to find out
whether the prosecution materials prima facie suggest
necessity of trial or atleast a strong suspicion warranting
trial. Anything more is not within the domain of the Court
dealing with plea of discharge and such contentions are
matters of evidence, after trial. Similarly, it is the settled
law that, non-exclusion of certain alleged income of the
relatives of the accused is not a matter to be considered at
the pre-trial stage.
19. In this case, the contention raised by the
petitioner was considered by the VACB and for the reasons
explained and discussed, the VACB sticks on the allegation
that the accused amazed assets worth Rs.5,76,00,687.24,
which is 149.22% in excess of his known sources of income.
But, the accused/petitioner is disputing the said finding. In
fact, non-exclusion of certain alleged income of the
relatives of the accused is to be considered by the trial
court during trial and pre-trial interference is absolutely
unwarranted in this case, since the prosecution materials
would prima facie show the allegation, warranting trial. In
view of the said finding the quashment sought for herein is
liable to fail and accordingly this petition also is liable to
fail.
20. In the result, this petition stands dismissed.
Interim order in this matter stands vacated. It is specifically
ordered that, the observations made in this order are for
the purpose of considering quashment and the same have
no binding effect during the trial and the Special Court shall
decide the case on merits, after adducing evidence.
Registry is directed to forward a copy of this order to
the Special Court, forthwith, for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
SK
PETITIONER ANNEXURES
Annexure A1 TRUE COPIES OF THE RELEVANT PORTIONS OF
STATEMENTS A, B, C AND D, SUBMITTED BY THE 3RD
RESPONDENT TO THE 2ND RESPONDENT, PERTAINING
TO THE ALLEGED INCOME OF THE PETITIONER.
Annexure A2 TRUE COPY OF THE REPRESENTATION DATED 1.6.2011
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
Annexure A3 TRUE COPY OF THE SOURCES OF INCOME OF THE
PETITIONER, INCLUDING ASSETS AND EXPENDITURES
FROM THE COMMENCEMENT OF HIS SERVICE, ENCLOSED
ALONG WITH ANNEXURE-A2.
Annexure A4 TRUE COPY OF THE PROCEEDING NO.E19-22232/2010
DATED 24.6.2011 ISSUED BY THE 2ND RESPONDENT.
Annexure A5 TRUE COPY OF THE DRAFT SENIORITY LIST OF
SUPERINTENDING ENGINEERS IN LSGD, PUBLISHED BY
THE CHIEF ENGINEER, LSGD, THIRUVANANTHAPURAM.
Annexure A6 TRUE COPY OF THE REPRESENTATION DATED
22.9.2017 SUBMITTED BY THE PETITIONER BEFORE
THE PRINCIPAL SECRETARY, LSGD AND OTHERS, WITH
THE PRAYER TO PROMOTE HIM TO THE POST OF CHIEF
ENGINEER.
Annexure A7 TRUE COPY OF THE ORDER DATED 28.9.2017 OF THE
HON'BLE KAT IN O.A. (EKM) NO.2154/2017.
Annexure A8 TRUE COPY OF THE FIR NO.VC.11/17/SCE DATED
5.10.2017 REGISTERED AGAINST THE PETITIONER.
Annexure A9 TRUE COPY OF THE INCOME TAX STATEMENT FILED BY
THE PETITIONER FOR THE PERIOD 2004-2005 TO
2017-2018, HIS WIFE ANITHA NAHAS FROM 2006-
2007 TO 2017-2018, HIS SON SHALIF M. NAHAS
FROM 2010-2011 TO 2017-2018 AND HIS DAUGHTER
SIMNA NAHAS FROM 2009-2010 TO 2017-2018.
Annexure A10 TRUE COPY OF THE SELF MADE STATEMENT PREPARED
BY THE PETITIONER, DETAILING THE ASSETS
GAINED, AND THE EXPENSES INCURRED BY HIM,
INCLUDING LOAN DETAILS, FROM JANUARY 2006 TO
APRIL 2017.
Annexure A11 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT
ORDER DATED 9.1.2018 IN CRL.M.C NO.7141/2017.
Annexure A12 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT, SUMMONING THE PETITIONER TO APPEAR
ON 23.1.2018.
Annexure A13 TRUE COPY OF THE REPRESENTATION DATED
23.1.2018 SUBMITTED BY THE PETITIONER ALONG
WITH OTHERS BEFORE THE 3RD RESPONDENT.
Annexure A14 TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE
3RD RESPONDENT IN ANNEXURE A8 FIR ON
30.3.2022.
Annexure A15 TRUE COPY OF EXHIBIT 73 ENCLOSED ALONG WITH
ANNEXURE A14.
Annexure A16 TRUE COPY OF EXHIBIT 75 ENCLOSED ALONG WITH
ANNEXURE A14.
Annexure A17 TRUE COPY OF THE PLINTH AREA RATES REGARDING
COST OF CONSTRUCTION AS ON 1.10.2012,
PUBLISHED BY THE CPWD IN ANNEXURE I AND V.
Annexure A18 TRUE COPY OF EXHIBIT 120 ENCLOSED ALONG WITH
ANNEXURE A14.
Annexure A19 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED
27.5.2009, ENTERED IN TO BETWEEN M/S.VAISHNOVI
ENGINEERS AND PETITIONER.
Annexure P20 TRUE COPY OF EXHIBIT 70 ENCLOSED ALONG WITH
ANNEXURE A14.
Annexure A21 TRUE COPY OF THE STATEMENT OF IT RETURNS
SUBMITTED BY THE PETITIONER APPROVED BY IT
DEPARTMENT.
Annexure A22 TRUE COPY OF THE STATEMENT OF IT RETURNS
SUBMITTED BY ANITHA NAHAS, THE PETITIONER'S
WIFE, APPROVED BY IT DEPARTMENT.
Annexure A23 TRUE COPY OF THE STATEMENT OF IT RETURNS
SUBMITTED BY SHALIF MUHAMMED, THE PETITIONER'S
SON, APPROVED BY IT DEPARTMENT.
Annexure P24 TRUE COPY OF THE STATEMENT OF IT RETURNS
SUBMITTED BY SIMNA NAHAS, THE PETITIONER'S
DAUGHTER, APPROVED BY IT DEPARTMENT.
Annexure A25 TRUE COPY OF THE CONSOLIDATED STATEMENT OF THE
IT RETURNS OF THE PETITIONER AND HIS FAMILY,
BASED UPON ANNEXURES A21 TO A24.
Annexure A26 TRUE COPY OF THE CERTIFICATE NO.74/2017-DATED
14.12.2017 ISSUED BY THE CHARTERED ACCOUNTANT
OF THE PETITIONER NAMELY VARGIS JACOB &
ASSOCIATES.
Annexure A27 TRUE COPY OF EXT.P21, PRODUCED ALONG WITH
ANNEXURE A14.
Annexure A28 TRUE COPY OF THE STATEMENT OF THE ASSET,
INCOME AND EXPENSES OF THE PETITIONER AND HIS
FAMILY, DURING THE CHECK PERIOD.
Annexure A29 True copy of G.O.(Rt) No.3580/2017/LSGD dated
6.11.2017 issued by the Government.
Annexure A30 True copy of the note file, pertaining to the
recommendation made by the Hon'ble Chief
Minister and Hon'ble LSG Minister, to promote
the petitioner to the post of Chief Engineer.
Annexure A31 True copy of the GST Registration Certificate
of M/s Essen Builders and Quick Convenience
Store, bearing one and same number, under the
same proprietorship.
Annexure A32 True copy of the letter dated 14.7.1997 issued
by the competent officer of the HDFC Home
Loan, to the petitioner and his wife.
Annexure A33 True copy of the schedule of property (page
Nos.10 and 11) pertaining to the loan
agreement dated 5.2.1997 entrusted with HDFC
Home Loan by the petitioner's wife.
Annexure A34 True copy of the occupancy certificate dated
19.12.2014 issued on behalf of the Cochin
Corporation.
Annexure A36 True copy of Document No.44/1/15 dated
7.1.2015 of SRO, Maradu.
Annexure A35 True copy of the age certificate dated
8.1.2018, pertaining to the age of the
building bearing No.53/615 (Old No.31/159A) as
19 years.
Annexure A37 TRUE COPY OF THE DETAILS OF THE IT RETURNS
SUBMITTED BY THE PETITIONER FOR THE PERIOD
2007-2008 TO 2018-2019.
Annexure A38 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE
PETITIONER AND HIS WIFE PERTAINING TO A/C
NO.30090976913, FOR THE PERIOD FROM 2007-2008
TO 2018-2019.
Annexure A39 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE
PETITIONER PERTAINING TO A/C NO.10396756743,
FOR THE PERIOD FROM 2007-2008 TO 2018-2019.
Annexure A40 TRUE COPY OF THE CONSOLIDATED STATEMENT
PERTAINING TO THE IT RETURNS OF THE PETITIONER
FOR THE PERIOD FROM 2007-2008 TO 2018-2019,
PREPARED, BASED UPON ANNEXURE A37.
Annexure A41 TRUE COPY OF THE CONSOLIDATED STATEMENT
PREPARED BY THE PETITIONER, BASED UPON
ANNEXURES A38 AND A39 STATEMENT OF ACCOUNT,
EMPHASIZING THE RECEIPT OF RENT FOR THE FOR
THE PERIOD FROM 2007-2008 TO 2018-2019.
