Muvattupuzha, dated 06.01.2024 is under challenge. The sole
who is the petitioner in C.M.P.No.1387 of 2017.
2. Heard the learned Special Public Prosecutor appearing
for the 1st respondent. Perused the records as well as the
3. Here the prosecution allegation is that the
would come to Rs.49,21,282.00. According to the
D. On this premise, prosecution filed final report before the
Crl.R.P No.555/2024 2026:KER:3188
respondent/accused.
4. On appearance before the Special Court, the
the Code of Criminal Procedure, 1973, seeking discharge.
(30,03019-36750) = 29,66,269+33,86,779 = 63,53,048-
63,64,798.6 =-11750
The assets disproportionate to the alleged known sources of income of the
petitioner is Rs.-11750. It is a negative figure. In the matter of assessing
disproportionate assets, calculation with mathematical precision is not possible.
Crl.R.P No.555/2024 2026:KER:3188
What is possible is an approximate assessment. The value of gold in possession
of the petitioner at the beginning of the check period and at the end is almost
similar. Therefore, it makes no difference in the calculation. It is pointed out that
even if the loan of Rs.5 lakhs taken from State Bank of Travancore is excluded
from the income of the petitioner, the assets disproportionate to the known
sources of income of the petitioner will be Rs.4,88,249 which also less than 10
percent of Rs.63,64,798."
5. While challenging the finding of the Special Court,
it is submitted by the learned Special Public Prosecutor that, in
the instant case the learned Special Judge conducted mini trial
by adding income from some other sources, as the assets of the
accused while adverting to the discharge plea of the petitioner.
According to the learned Special Public Prosecutor, when
considering the discharge plea of the petitioner, a court is not
expected to conduct a mini trial by evaluating the evidence to
arrive at any finding based on the same. It is specifically
pointed out by the learned Special Public Prosecutor that the
exercise undertaken by the learned Special Judge ought to
have been relegated to the stage of trial, particularly after
examining the witnesses and evaluating the evidence, so as to
determine whether the additional assets disclosed by the
Crl.R.P No.555/2024 2026:KER:3188
accused could be treated as his income or whether any
deduction therefrom is required, which can be decided only
on the basis of the evidence. Thus the order is liable to be
interfered, so as to allow the prosecution to proceed with the
trial.
6. Apart from that the respondent raised contentions
by filing an argument note as under:
"1. Respondent joined in government service as Assistant
Engineer in PWD, Idukki Block on 13.4.1982. He was promoted as
Assistant Executive Engineer on 11.1.2002 and posted at District
Panchayat Division, Idukki and while working as Assistant Executive
Engineer, PWD (National Highway Division), he retired, on attaining
the age of superannuation on 31.3.2011.
2. The check period was from 1.8.1992 to 29.7.2009. The marriage of
the accused was on 14.4.1985 with Reena K.S. The father of the
accused namely P.M. Hassan was a PWD contractor. The father in
law of the respondent was K.M. Seethi and he was a contractor in
forest department.
3. As per Paragraph 2 of Annexure-IV of the final report (at page
44), at the time of marriage, 100 sovereigns of gold ornaments were
gifted to the wife of the respondent by her father.
4. The respondent purchased 15 cents of land on 15.6.1992 at
Velloorkkunnam Village of Muvattupuzha Taluk, as per Document
Crl.R.P No.555/2024 2026:KER:3188
No.2365/92 of SRO, Muvattupuzha, on payment of Rs. 16,000/-.
Another 24 cents was also purchased by the respondent as per
Document No.2608/92 of the same Sub Registry,for the consideration
of Rs.16,000/-, which is stated in the 5th paragraph in page 45 of the
Annexure IV of the Final Report.
5. The wife of the respondent namely Reena K.S. secured 35 cents of
land with the residential building from her parents as ancestral
property on 6.9.1991 as per Document No.3144/91 of SRO,
Muvattupuzha. A shop room of 218 sq.ft. and another shop room of
446.8 sq.ft. were situated in the said property inherited by Reena
K.S., the wife of the respondent from her father.
6. A residential house was constructed in the plot purchased by the
respondent in 1992 and its cost of construction was
Rs.23,44,901/-.The 6th paragraph in Page 46 of Annexure IV of the
final report admits those details.
7. A search was conducted in the house of the respondent on
29.7.2009 and the household articles worth Rs.3,92,975/- and gold
ornaments having 274.1 gm were detected and the cash of
Rs.55,393/- was noticed in the SB account of the respondent.
8. Respondent constructed his residential house during 2002 by
making use of the financial assistance rendered from the State Bank
of Travancore. Later, he secured the financial assistance from Punjab
National Bank, worth Rs. 15,00,000/-.
9. Document No.54 (Ext.54) in the charge sheet produced along with
the final report, the deposit of rent from the shop rooms owned by the
wife of the respondent for the period from 2000 to 2006, was
enumerated. This amount was utilized by the respondent during the
Crl.R.P No.555/2024 2026:KER:3188
check period. A total amount of Rs.7,48,460/- was credited to the
account of the respondent as per Document No.54. This was
considered by the learned Judge while considering the discharge
petition.
10. During the check period, the respondent's wife was in possession
of 100 sovereigns. However, 186.310 grams of gold was sold on
02.04.2002, 44 grams of gold on 02.05.2002, 36 grams of gold on
02.05.2002, 110.620 grams of gold on 18.05.2002, and 210.530
grams of gold on 28.05.2002, for a total sum of Rs. 1,95,056/-. Exts.
No. 130 and 135, produced by the prosecution, would support the
said sale proceeds.
11. The respondent secured a housing loan of Rs.5,00,000/- from the
SBT in the year 2002, which was not shown as income for the check
period. The respondent has repaid an amount of Rs.2,82,116/-
towards the said loan. Document No. 146 (Ext. 146) shows the
details of the loan availed by the respondent from SBT, Paippra
branch.
12. The respondent was not in possession of a car during the check
period. Ext. 123, produced by the revision petitioner along with the
charge sheet, shows the RC details of the car bearing registration
No. KL-17-E-2662, which is registered in the name of the father of
the respondent. The vehicle was valued at Rs.6,35,023/-, which needs
to be excluded from the assets of the respondent.
13. Further, an amount of Rs.5,32,087/- was added to the expenditure
of the respondent, as if the car were owned by the respondent. The
father of the respondent was holding a driving licence since 1951
and was a timber merchant by profession, having sound financial
Crl.R.P No.555/2024 2026:KER:3188
capacity. Document No. 139, the invoice of the car purchased by the
father of the respondent, has no nexus with the respondent and
neither the said car nor its documents were detected from the house
or possession of the respondent. Therefore the said amount would
have been deducted from the expenditure of the respondent
14. The Hon'ble Supreme Court in State by the Inspector of Police,
Chennai v. S.Selvi and Another (2017 KHC 6899) held that:
vi) At the stage of S.227 and S.228, the Court is required to
evaluate the material and documents on record with a view to find
out if the facts emerging therefrom taken at their face value discloses
the existence of all the ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution states as
gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the Trial
Judge will be empowered to discharge the accused and at this stage,
he is not to see whether the trial will end in conviction or acquittal.
15. In State of Tamil Nadu v. N Sureshrajan And Others (2014
KHC 4010), it was held by the Hon'ble Supreme Court that:
"The court can only examine the materials produced, and relied on
by the prosecution to see whether framing of a charge would
justifiable or to see whether the offence alleged by the prosecution
against the accused are, prima facie, made out by the materials"
In the instant case, the learned court below had relied upon the
document produced by the prosecution, for discharging the
Crl.R.P No.555/2024 2026:KER:3188
applicant/accused from prosecution. In the said judicial proceeding.
there was no mini trial of evidence. Even if the respondent were
compelled to undergo the lengthy ordeals of prosecution by adducing
evidence and examining the witnesses, it would be very much
possible for the learned court below to discharge the accused,
without even adducing any fresh document, and without examining
any witness, but upon relying upon the documents adduced by the
prosecution itself, in support of their case.
Therefore, absolutely no meaningful purpose would be served
by compelling the accused to undergo the procedures of trial. Hence
the order of the learned court below was strictly in accordance with
law, to meet the ends of justice."
7. Apart from that, it is submitted by the learned
counsel for the 1st respondent/accused that the Special Court
rightly considered the income of the accused by taking income
from some other sources, which were omitted to be
considered by the Investigating Officer on getting the same
addressed. Thus the finding of the Special Court holding the
view that the accused did not amass any amount
disproportionate to his known source of income is only to be
justified and no interference with the order of discharge is
required.
Crl.R.P No.555/2024 2026:KER:3188
8. While addressing the contention, first of all it is
necessary to look into the statements of the prosecution,
which do form part of the final report, as extracted
hereunder:
"The A to D statement are as follows:-
A. Assets at the beginning of the check period :
Rs.36,750.00 +274.1 Gms of Gold Ornaments
B. Assets at the end of the check period:
Rs.36,38,042.00 + 274.1 grams of Gold Ornaments
(B-A) Assets acquired during the check period :Rs.36,01,292.00
C. Income during the check period: Rs.49,21,282.60
D. Expenditure during the check period: Rs.39,70,103.00
Disproportionate assets of A.O for the check period
i.e (B-A)+D)-C
Rs.36,01,292.00+39,70,103.00-49,21,282.60=Rs.26,50,112.00
The percentage of disproportionate assets to the known sources of
income of the AO is 53.85%."
9. Going by the impugned order, the learned Special
Judge addressed the contention raised by the prosecution
that income to the tune of Rs.1,95,056/- obtained by sale of
Crl.R.P No.555/2024 2026:KER:3188
gold ornaments is not included in the income. In this regard,
the learned Special Judge addressed document Nos.130 and
131 in the list of documents shown in pages 29 and 30 of
the final report, as pointed out by the learned counsel for
the 1st respondent. On evaluating the above said documents,
it is found by the learned Special Judge that witness No.53
had given statements proving sale of such ornaments by the
petitioner and his wife to witness No.53 and an amount of
Rs.1,95,056/- was obtained by the 1st respondent/accused.
According to the prosecution, even though this amount is
the amount belonged to the wife of the petitioner, since the
accused and his wife resided together during the check
period, it ought to have been shown as the assets of the
accused as well.
10. Regarding this argument, this court is of the view
that, whether the gold ornaments belonging to the wife
were sold to witness No.53 and how those ornaments
Crl.R.P No.555/2024 2026:KER:3188
came into her possession, etc. are matters of evidence to
be ascertained by examining witness No.53 during trial.
Therefore, merely based on the statement that
the wife of the accused sold her gold ornaments for
Rs.1,95,056/- to witness No.53, the said amount should not be
added as the income of the accused at the pre trial stage.
Therefore this finding of the Special court is not sustainable.
11. The learned Special Judge has included
Rs.1,11,350/- as the amount obtained by the accused by selling
timber as per document No.137 produced by the prosecution
and as per the statement of witness No.56. The learned
Special Judge observed that witness No.56 given statement
that he had purchased Thani timber from the accused on
12.10.1999 as per 2 bills, copies of which were produced; one
item was purchased for Rs.66,155/- and another item was
purchased for Rs.45,195/-.
12. However, the Special Court did not consider this
amount since witness Nos.61 and 62 had given statement to
Crl.R.P No.555/2024 2026:KER:3188
the police that they had sold the property to the accused in the
year 1992 and at the relevant time some Coco palms and a
mango tree alone were in the property. So the 1 st respondent
could not sell Thani timber trees during 1999, as
contended.
13. Regarding the loan amount of Rs.5 lakh availed
by the accused and his wife from SBT in the year 2002 is
concerned, it was observed by the learned Special Judge that
the said amount to be included in the income of the
respondent since no documents were produced to show that
the said amount was taken over by Punjab National Bank
while granting Rs.15 lakh. In this regard, it is submitted by
the learned counsel for the respondent/accused that the
respondent had repaid an amount of Rs.2,82,116/- and
document No.146 (Ext.146) produced by the prosecution
would show the details of the loan availed by the respondent
from the SBT, Paippra Branch.
14. Regarding this amount it could be seen that this
Crl.R.P No.555/2024 2026:KER:3188
is a disputed fact which would require adjudication by
adducing evidence and the same is not a matter to be
considered during pre-trial stage. The learned Special Judge
also reduced Rs.7,48,460/- received as rent (document
No.54) from the shop rooms owned by the wife of the
respondent for the period from 2000 to 2006 which was used
by the respondent during the check period. According to the
learned Special Judge, another ground raised by the counsel
for the respondent is that the respondent had acquired two
shop rooms and another six cents of land and a residential
building, which were shown as items 5, 6 and 7 at page 49
of Annexure IV of the final report, the income received from
the above three buildings were not taken into account. The
rents from those buildings are deposited in account number
00871 of Muvattupuzha Urban Co-operative Bank. Those
amounts are reflected in bank statements produced as
document numbers 53 and 54 in Annexure II. This comes to
Rs.7,48,460/-, which must be added to the income of the
Crl.R.P No.555/2024 2026:KER:3188
petitioner. The counter statement of the petitioner in this
regard is that the wife of the respondent was not an income
tax payee; the landed property statement of Government
servant must include the property and income of his wife,
relative etc. and the respondent had not declared any of his
above mentioned claims in his landed property statements.
Reference is made to Section 13 of the PC Act, 1988. The
prosecution had produced the account statement of the
respondent in the above bank. The statement would show
that on 19th August, 2008 by closure of fixed deposits
Rs.7,48,460/- had been credited to the account of the
respondent. The only objection is that the same had not
been shown in the property statement of the respondent. The
petitioner has no case that the respondent had not received
the above amount by way of rent. It is already conceded by
the investigating officer that some building were in the name
of the wife of the respondent and it has been taken as the
property of the respondent. The learned Special Judge
Crl.R.P No.555/2024 2026:KER:3188
observed that there is no rule that the income received by
way of rent shall be shown in the property statement of a
government servant and accordingly found that this ground
of the respondent is sustainable.
15. According to the learned Special Public
Prosecutor, if at all this amount is liable to be added to
statement C, the contention of the learned Special Public
Prosecutor is that the same amount had not been shown in
the property statement of the respondent. Further if at all
this amount was deducted, that alone would not take the
culpability of the accused for the offence punishable under
Section Section 13(1)(e) r/w 13(2) of the PC Act, 1988.
16. In paragraph No.14 of the order, the learned
Special Judge addressed the contention raised by the
respondent/accused that car bearing Reg.No.KL 17 C 2662
in the name of the father of the respondent named
P.M.Hassan was wrongly shown as that of the respondent.
Crl.R.P No.555/2024 2026:KER:3188
A sum of Rs.6,35,023/- had been shown as that of the
respondent towards the value of the car and the said amount
was shown in statement D as expenditure of the respondent.
The contention raised by the accused is that the said car was
purchased by his father and he was a timber merchant having
his own income, but the contention raised by the prosecution
is that sale price for the car was paid by the respondent though
witness No.58, the Assistant Manager of the vehicle dealer
who sold the vehicle, had given statement to the police that the
vehicle was purchased by Sri P.M.Hassan. Coming to
Rs.6,35,023/-, shown in statement B and Rs.5,83,324/- shown
in statement D regarding the value of the car and the purchase
price thereof also are disputed facts and in this regard also
evidence to be adduced.
17. It is true that at the stage of discharge of an
accused, the court has the power to evaluate the available
materials on record with a view to find out whether the facts
emerging there from taken at their face value discloses the
Crl.R.P No.555/2024 2026:KER:3188
existence of all the ingredients constituting the alleged
offence/offences and for this limited purpose, evaluation of the
evidence as done after trail could not be expected. It is true
that when evaluating the prosecution materials for the
purpose of considering discharge if two views are
possible one of them gives rise to suspicion only, as
distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused as held in [2017 KHC
6899], State by the Inspector of Police, Chennai v. S.Selvi
& and Another. It is equally well settled that when disputed
facts are involved as regards to calculation of assets, it could
not be addressed by the learned Special Judge at the pre-trial
stage without adducing evidence. In the instant case, the
facts discussed herein above would go to show that the
addition and subtraction made by the learned Special Judge
at the pre-trial stage, in fact, is akin to a mini trial where
disputed facts are involved, for which adducing of evidence
is absolutely necessary by examining witnesses and
Crl.R.P No.555/2024 2026:KER:3188
tendering documents in support of the rival contentions.
Thus it has to be held that the learned Special Judge went
wrong in discharging the respondent and therefore the order
of the learned Special Judge is liable to be interfered.
19. In the result, this petition succeeds and the
impugned order is set aside. The respondent/accused is
directed to appear before the Enquiry Commissioner and
Special Judge (Vigilance), Muvattupuzha on 15.02.2026,to
cooperate with trail.
20. Registry is directed to forward a copy of this
judgment to the Enquiry Commissioner and Special Judge,
Muvattupuzha, for compliance and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
Crl.R.P No.555/2024 2026:KER:3188
APPENDIX OF CRL.REV.PET NO. 555 OF 2024
PETITIONER'S ANNEXURES
Annexure A CERTIFIED COPY OF CRL.M.P.
NO.1387/2017 DATED 06/01/2024 IN CC
NO.354/2016 ON THE FILE OF THE
ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, MUVATTUPUZHA.
RESPONDENT'S ANNEXURES : NIL
