Kerala High Court
Aneesh K.T vs Sri. Tomy George on 14 February, 2025
2025:KER:12930
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
OP(CRL.) NO. 293 OF 2021
AGAINST THE ORDER DATED 05.03.2018 IN CRMP NO.1348 OF
2013 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
PETITIONER:
TOMY GEORGE,
AGED 64 YEARS
AGRICULTURIST, S/O. DEVASSIYA (LATE).
EDAYADIYIL, VADAKKEKKARA, POONAJAR NEDUMBHAGOM
VILLAGE, MEENACHIL TALUK, KOTTAYAM-686581.
BY ADVS.
J.JULIAN XAVIER
ASHA TREESA JOSE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,
SECRETARIAT, GOVERNMENT PRESS P.O.,
THIRUVANANTHAPURAM-695001.
2 MATHEW THOMAS,
KANDAMPARAMBIL, POONAJAR P.O., POONAJAR,
NEDUMBHAGOM VILLAGE, MEENACHIL TALUK,
KOTTAYAM-682582.
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O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
3 JINSY MATHEW,
W/O. MATHEW, KANDAMPARAMBIL, POONAJAR P.O.,
POONJAR, NEDUMBHAGOM VILLAGE, MEENACHIL TALUK,
KOTTAYAM-682582.
4 R.P. RAJAM,
W/O. KARUNAKARA PISHARADI, PADINJARE PISHARATH,
KIDANGOOR KARA, MEENACHIL TLAUK, KOTTAYAM
-686572.
5 HAREESH K.,
S/O. KARUNAKARA PISHARADI, PADINJARE PISHARATH,
KIDANGOOR KARA, MEENACHIL TALUK, KOTTAYAM-
686572.
6 ABDUL SAMAD S.,
SUB REGISTRAR'S OFFICE, MATHAMANGALAM, KANNUR-
670307.
7 ANEESH K.T.,
SUB REGISTRAR'S OFFICE, KARUKACHAL, KOTTAYAM-
686540.
8 SOUMYA K.S.,
CLERK, SUB REGISTRAR'S OFFICE, POONJAR,
KOTTAYAM-686581.
9 SHAMEELA,
CLERK, SUB REGISTRAR'S OFFICE, POONJAR,
KOTTAYAM-686581.
0 PRAKASH,
CLERK, SUB REGISTRAR'S OFFICE, POONJAR,
KOTTAYAM-686581.
11 MATHEW JOSEPH,
S/O. C.M. JOSEPH, LICENSE NO.252, CHAKKALAKKAL,
POONJAR P.O., KOTTAYAM-686581.
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O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
BY ADVS.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
GEORGEKUTTY MATHEW
BIJU MARTIN
P.R.REENA
M.M.SALIM
THIS OP (CRIMINAL) HAVING COME UP FOR FINAL HEARING
ON 07.02.2025, ALONG WITH OP(Crl.).587/2022, THE COURT ON
14.02.2025 DELIVERED THE FOLLOWING:
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O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
O.P.(CRL.) NO. 587 OF 2022
AGAINST THE ORDER DATED 05.03.2018 IN CRMP NO.1348 OF
2013 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
PETITIONERS:
1 ANEESH K.T
AGED 43 YEARS
S/O THANKAPPAN, AGED 43 YEARS, RESIDING AT
KOOVAPUZHA HOUSE, EDAYARICKPUZHA P.O., KOTTAYAM
DISTRICT PIN - 686541, WORKING AS CLERK, SUB
REGISTRAR'S OFFICE, KARUKACHAL, KOTTAYAM, PIN -
686540.
2 SOUMYA K.S
AGED 45 YEARS
D/O. THANKAPPAN, PARAKKAT HOUSE,POONJAR P.O.
KOTTAYAM, WORKING AS CLERK, SUB REGISTRAR'S
OFFICE, POONJAR, KOTTAYAM, PIN - 686581.
3 SHAMEELA,C.H
AGED 43 YEARS
D/O C A HASSAN, RESIDING AT
KOORUMULLAMTHADATHIL HOUSE, ERATTUPETTA - P.O
KOTTAYAM DISTRICT WORKING AS CLERK, SUB
REGISTRAR'S OFFICE, POONJAR, KOTTAYAM, PIN -
686581.
BY ADV BIJU MARTIN
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RESPONDENTS:
1 SRI. TOMY GEORGE
AGED 64 YEARS
AGRICULTURIST, S/O DEVASSIA ( LATE) EDAYADIL,
VADAKKEKKARA, POONJAR NEDUMBHAGOM VILLAGE,
MEENACHIL TALUK, KOTTAYAM, PIN - 686581.
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,
SECRETARIAT, GOVT. PRESS P.O,
THIRUVANANTHAPURAM PIN 695001.
3 MATHEW THOMAS
KANDAPARAMBIL, POONJAR P.O. POONJAR NEDUMBHAGOM
VILLAGE, MEENACHIL TALUK, KOTTAYAM, PIN -
686582.
4 JINSY MATHEW
W/O MATHEW, KANDAPARAMBIL, POONJAR P.O. POONJAR
NEDUMBHAGOM VILLAGE, MEENACHIL TALUK, KOTTAYAM,
PIN - 686582.
5 R.P. RAJAM
W/O KARUNAKARA PISHARADI, PADINJARE PISHARATH,
KIDANGOOR KARA, MEENACHIL TALUK, KOTTAYAM, PIN
- 686572.
6 HAREESH K.,
S/O KARUNAKARA PISHARADI, PADINJARE PISHARATH,
KIDANGOOR KARA, MEENACHIL TALUK, KOTTAYAM, PIN
- 686572.
7 ABDUL SAMAD S.,
SUB REGISTRAR'S OFFICE MUTHAMANGALAM, KANNUR,
PIN - 670307.
8 PRAKASH,
CLERK, SUB REGISTRAR'S OFFICE POONJAR,
KOTTAYAM, PIN - 686581.
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O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
9 MATHEW THOMAS,
S/O C.M. JOSEPH, LICENSE NO. 252, CHAKKALAKKAL,
POONJAR, KOTTAYAM, PIN - 686581.
BY ADVS.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
AFSAL KHAN V S
P.R.REENA
THIS OP (CRIMINAL) HAVING COME UP FOR FINAL HEARING
ON 07.02.2025, ALONG WITH OP(Crl.).293/2021, THE COURT ON
14.02.2025 DELIVERED THE FOLLOWING:
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O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
O.P.(Crl.) Nos.293 of 2021 and 587 of 2022
-----------------------------------------------------------
Dated this the 14th day of February, 2025
JUDGMENT
These original petitions under Article 227 of the
Constitution of India were filed by, respectively, the complainant
and accused Nos.6 to 8 in Crl.M.P.No.1348 of 2013. The said
complaint was filed before the Court of the Enquiry
Commissioner and Special Judge, Kottayam alleging offences
punishable under Section 13(1)(b) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (PC Act) and Sections 166,
167, 191, 192, 199, 200, 415, 420, 447, 463, 464, 466, 468,
470, 471, 477A, 120B read with Section 34 of the Indian Penal
Code, 1860 (IPC). A quick verification was conducted by the
Deputy Superintendent of Police, VACB, Kottayam based on the
direction of the said court. The report dated 10.10.2017 was
accepted by the Special Court as per the order dated
05.03.2018. The said quick verification report and the order of
the Special Court are under challenge in these original petitions.
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2. The parties and the documents are referred to as
arrayed and marked in O.P.(Crl.) No.293 of 2021.
3. Heard the learned counsel appearing for the
respective petitioners, the learned Senior Government Pleader
and the learned counsel for the party respondents.
4. The petitioner was the owner of 50 cents of
property comprised in Sy.No.172/4 of Poonjar Nadubhagam
Village. 15 cents out of the said property was transferred by
him, which eventually was purchased in the name of the 3 rd
respondent as per the sale deed No.1939 of 2012. Knowing
that a pathway along the property left with him was described
in the said sale deed, the petitioner submitted application
before the Sub Registrar's Office, Poonjar to get encumbrance
certificates. Respondents No.2 to 11 in furtherance of a
criminal conspiracy hatched among them, caused to issue
encumbrance certificates suppressing execution of sale deed
No.1939 of 2012. The petitioner obtained three encumbrance
certificates, which were vary each other. Alleging that
respondents No.6 to 10, who were the Sub Registrar and
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other officials working in the Sub Registrar's Office, Poonjar
did so abusing their official position as public servants and
obtained pecuniary advantage, the petitioner filed Crl.M.P.
No.1348 of 2013 before the Special Court.
5. The Special Court forwarded the complaint to the
Deputy Superintendent of Police, VACB, Kottayam for
conducting a quick verification. He, after holding an enquiry,
submitted Ext.P2 report dated 25.05.2015. The Special Court
rejected that report and directed the Dy.S.P. to conduct a
further enquiry in the matter. Specific directions were issued
in that regard. The said order dated 13.07.2017 is Ext.P4. A
further enquiry was accordingly conducted and the report
dated 10.10.2017 was submitted before the court, which is
Ext.P5. In the said report, it was concluded that no criminal
conspiracy or offence as alleged in the complaint were
revealed. However, departmental action against respondents
No.6 to 10 was recommenced. The petitioner opposed the
said report. The Special Court, after considering the materials
placed before it, held as per Ext.P9 that the report was liable
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to be accepted. The Special Court further ordered to sent a
copy of the report of the District Registrar (General) for
initiating disciplinary action against the erring officers in the
Sub Registrar's Office, Poonjar. The petitioner is aggrieved by
that order since respondents No.2 to 11 were not proceeded
against for commission of the alleged offence.
6. Respondents No.7 to 9, who filed O.P.(Crl.) No.587
of 2022, are aggrieved since disciplinary proceedings was
recommended against them by the Special Court.
7. Basis for the allegation that a criminal conspiracy
was hatched among respondents No.2 to 10 and an offence
under Section 13(1)(d) of the PC Act was committed is the
issuance of encumbrance certificates suppressing document
No.1939 of 2012. Three encumbrance certificates were
obtained by the petitioner, copies of which are produced by
respondents No.7 to 9 as Exts.R7(d), R7(e) and R7(f). The
VACB after an enquiry concluded that in the issuance of the
said encumbrance certificates, there was no criminal conspiracy
or commission of an offence under Section 13(1)(d) of the PC
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Act. The allegation is that in the first two encumbrance
certificates, document No.1939/2012 was not mentioned.
Indisputably, all the said encumbrance certificates were issued
after execution of document No.1939/2012. The contention of
the petitioner is that while executing the said documents in
favour of the 3rd respondent, a pathway along the property of the
petitioner was falsely described in that document and in order to
avoid that fact coming to the knowledge of the petitioner, such
false encumbrance certificates were issued.
8. In the counter-affidavit filed by respondents No.7
to 9 in O.P.(Crl.) No.293 of 2021, they explained as to the
reason for such discrepancy in the successive encumbrance
certificates. They produced applications for obtaining those
encumbrance certificates. Exts.R7(a), R7(b) and R7(c) are
copies of such applications. It is explained that the re-survey
numbers shown in the first two applications were incorrect.
The re-survey number shown in those applications was 172/4-
A. Whereas, in the third application, the re-survey number
was shown 174/4-6. It is further explained that during the
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said period, data were fed to the computers manually being
the computerisation was in its nascent stage. The
encumbrance certificates could be generated based only on
such manually fed data and if there is any mistake in the
survey number, the details furnished in the encumbrance
certificates will also be mistaken. It is thus contended that
when the third application, Ext.R7(c), was submitted with the
correct re-survey number, an encumbrance certificate
mentioning the documents pertaining to the land in question,
including document No.1939/2012 was issued. Only because
the re-survey number was shown wrongly in Exts.R7(a) and
R7(b) earlier encumbrance certificates did not reflect the
correct details. Thus, respondents No.7 to 9 explained that
there is no dereliction of duty on their part.
9. Ext.P5 is the report of preliminary investigation. It
is seen that the VACB has verified all relevant documents and
took statements of witnesses having acquaintance with the
matter. On the basis of the materials thus collected, the
conclusion arrived at is that the mistake occurred in the
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encumbrance certificates is on account of the error in
searching for the data available in the computer system. It is
observed in the report that it was only an error that occurred
on the part of the clerk in the office of the Sub Registrar.
Other than that, no conspiracy leading to issuance of
encumbrance certificates with incorrect data like suppression
of details regarding document No.1939/2012 had taken place.
10. As stated, possibility for such an error has been
well demonstrated from Exts.R7(a), R7(b) and R7(c). It may
be noted that when Ext.R7(a) application was submitted on
20.10.2012, the possibility of hatching a conspiracy between
respondent Nos.7 to 9 with other party respondents was quite
remote. Rather, the petitioner did not state in Ext.P1
complaint as to the details of such a conspiracy as well. In
that view of the matter, the findings arrived at by the VACB in
Ext.P5 report cannot be said to be not based on materials.
Therefore, Ext.P9 order of the Special Court, insofar as it
endorses the view that there was no ground for a criminal
prosecution, cannot be said to be incorrect.
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11. Grievance of the petitioners in O.P.(Crl.) No.587 of
2022 is that the Special Court recommended departmental
action against them. The VACB, while requested to drop
criminal proceedings, recommended departmental action
against the petitioners and two others. The Special Court on
accepting the report of quick verification directed to send a
copy of the same to the District Registrar (General) for taking
disciplinary action as recommended therein. The Special Court
did not consider the correctness or not of such a
recommendation in the report. Whether the petitioners and
other officials committed dereliction of duty in the issuance of
encumbrance certificates in question is not a matter for
consideration by the Special Court. It is for the department to
consider that question. If any such action is initiated, the
petitioners certainly will have an opportunity to explain their
part. In such circumstances, this Court is not expected to
consider legality or propriety of the VACB making such a
recommendation. Hence, the plea of the petitioners in O.P.
(Crl.) No.587 of 2022 to set aside the quick verification report
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and the order of the Special Court suggesting a departmental
action cannot be found to be incorrect.
In view of what are stated above, these original petitions
are dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF OP(CRL.) 293/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED
02/12/2013 FILED BY THE PETITIONER
BEFORE THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
KOTTAYAM.
EXHIBIT P2 TRUE COPY OF THE QUICK VERIFICATION
REPORT DATED 25/05/2015 IN CMP
NO.1348/2013 PENDING BEFORE THE COURT
OF ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, KOTTAYAM.
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
11/2016 IN CMP NO. 1348/2013.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
13/07/2017 IN CRL. MP NO.1348/2013
PASSED BY THE HON'BLE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
KOTTAYAM.
EXHIBIT P5 TRUE COPY OF THE QUICK VERIFICATION
REPORT DATED 10/10/2017 IN CMP NO.
1348/2013.
EXHIBIT P6 CERTIFIED COPY OF THE DOCUMENT
NO.2190/2004 OF SRO, POONJAR.
EXHIBIT P7 THE ENLARGED PORTION OF THE ALLEGE
FABRICATED PORTION OF EXT.P6.
EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED
30/03/2017 FILED BY THE PETITIONER
BEFORE THE HON'BLE VIGILANCE COURT IN
CRL. MP NO.1348/2013.
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EXHIBIT P9 TRUE COPY F THE ORDER DATED 05/03/2018
IN CRL.MP NO.1348/2013.
EXHIBIT P10 TRUE COPY OF THE DOCUMENT NO.1939/2012
OF SRO, POONJAR
EXHIBIT P11 TRUE COPY COMMISSION REPORT ON
O.S.117/2014 OF MUNSIFF COURT,
ERATTUPETTA
EXHIBIT P12 TRUE COPY OF SURVEY SKETCH OF PROPERTY
IN RESURVEY NO.172/4 OF POONJAR
NADUBHAGOM VILLAGE
EXHIBIT P13 TRUE COPY OF THE JUDGEMENT DATED
27.07.2024 IN O.S.117/2014 OF MUNSIFF
COURT, ERATTUPETTA
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APPENDIX OF OP(CRL.) 587/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE QUICK VERIFICATION
REPORT OF THE VIGILANCE IN CMP NO.
1348/2013 FILED BEFORE THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
KOTTAYAM DATED 25.05.2015
EXHIBITP2 TRUE COPY OF THE OBJECTION FILED BY
THE 1ST RESPONDENT IN CMP NO.
1348/2013 DATED 11.2016
EXHIBIT P3 TRUE COPY OF THE ORDER IN C. M.P. NO.
1348/2013 PASSED BY THE HON'BLE COURT
OF ENQUIRY COMMISSIONER AND SPECIAL
JUDGE KOTTAYAM DATED 13.07.2017
EXHIBIT P4 TRUE COPY OF THE QUICK VERIFICATION
REPORT OF VIGILANCE DEPARTMENT IN CMP
NO. 1348/2013 BEFORE HON'BLE COURT OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE
KOTTAYAM
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 5.3.2018
