Babu Alexander vs State Of Kerala

K.Haripal, J

This is an application filed under Section 439 of the Criminal Procedure Code by the accused in C.C. No. 1 of 2019 of Wayanad Vigilance and Anti Corruption Bureau. That is a case registered alleging offence under Section 13(a) of the Prevention of Corruption Act and also under Sections 468, 471 and 409 of the Indian Penal Code.

Admittedly, petitioner was the Assistant Director of Agriculture, Mananthavady during the period from 30.08.2013 to 24.11.2017. It is alleged that during that period he committed huge financial misappropriation, to the tune of Rs.1.26 crores. Such misappropriations were detected during an inspection by the Finance Inspection Wing. On that basis the petitioner was kept under suspension from service. Later, after conducting a domestic enquiry, he stands terminated from service. The Vigilance and Anti Corruption Bureau of Wayanad district registered the crime on the basis of the intimation given by the Deputy Director of Agriculture and, after investigation, the petitioner was called to the Vigilance office by serving Annexure-1 notice under Section 41A of the Cr.P.C. Accordingly he appeared before the Investigating Officer, and was arrested on 24.11.2021 and was produced before Court on 25.11.2021 and since then is in judicial custody. His application for bail moved before the Enquiry Commissioner and Special Judge, Thalassery stands dismissed by order dated 27.11.2021, Annexure-2; aggrieved by the same the petitioner has moved this Court.

I heard Sri. P.N. Sukumaran, the learned counsel for the petitioner and also Sri. Rajesh, the learned Special Public Prosecutor for the respondents, in detail.

Sri.P.N.Sukumaran, learned counsel for the petitioner was trying to convince this Court that the petitioner is innocent, that he was dealing with a very big portfolio covering five panchayats and a municipality area and had to deal with all the projects of the Government single handed, only with the assistance of a clerk; that was a big task and various schemes had to be implemented by him. In fact, the allegations are highly exaggeratory; if there is any discrepancy in the accounts, that can be traced only after cross checking the accounts with Krishi Bhavans. The investigation is proceeding without doing this task. If the accounts are cross checked with Krishi Bhavans and other beneficiaries, the petitioner will be able to prove that he is totally innocent. He has implemented all the projects introduced by the Agriculture Department and the State of Kerala and in recognition of the same, he was granted good service entries. In 2016-2017, he had got State level award for the 'Pachakkari Vikasana Padhathi 2016-2017', a copy of which has been produced as Annexure-8. Similarly, in 2015-2016, he received award for 'Vigjyana Vyapanam' for outstanding performance as Agriculture Assistant Director. During 2016-2017, he got award for best Agriculture Assistant Director. According to him such a person has been put to trouble by the police, which cannot be justified. The learned counsel also submitted that when he was suspended from service in 2017, he approached the Kerala Administrative Tribunal and obtained an order for completing the domestic enquiry within a stipulated period of time. Accordingly, the enquiry was conducted and now he stands terminated from service. Attempts to recover nearly Rs.89 lakhs from him stands stayed by the Administrative Tribunal. On 24.11.2021 he had gone to the office of the Inspector in response to Annexure-1 notice under Section 41A of the Cr.P.C., then they arrested him. He is in judicial custody from 25.11.2021 onwards. Investigation of the case has almost completed. According to the learned counsel for the petitioner, there is absolutely no necessity for continuing the detention of the petitioner; he is prepared to abide by the conditions imposed by this Court.

On the other hand, Sri. Rajesh, the learned Special Public Prosecutor opposed the application. According to him, this is a case in which huge financial misappropriation committed by an Assistant Director of Agriculture stand unearthed; domestic enquiry initiated against him has completed by terminating him from service and there is overwhelming evidence to find that he is guilty. The learned Public Prosecutor also relied on the decisions reported in Jagan Mohan Reddy Y. S. v. Central Bureau of Investigation [2013 KHC 4402 SC], Nimmagadda Prasad v. Central Bureau of Investigation [2013 KHC 4400 SC], Bharat Stars Services Pvt. Ltd v. Harsh Dev Thakur and another [AIR 2019 SC 718], State of Bihar v. Divesh Kumar Chaudhary and another [(2018) 16 SCC 817] and Tridhara Mohanty alias Pattnaik v. State of Odisha [AIR 2021 SC 2712]. Referring to State of Bihar's case, quoted supra, he said that if the Court is inclined to grant him bail, since large amount of financial fraud is involved, as a condition precedent, he may be asked to deposit at least ten to twenty percentage of the amount defrauded by him.

In reply, the learned counsel Sri. Sukumaran submitted that, the petitioner is in deep financial straits, that he may not be able to deposit any amount as a condition precedent and therefore, he prayed that he may not be directed to make any deposit.

I have no doubt that the allegations against the petitioner are very serious. He had been the Assistant Director of Agriculture in Mananthavady, holding charge of five panchayats and a municipality during the period between 30.08.2013 to 24.11.2017. I have gone through the case diary; the allegations can be summarised as follows:

1) During the period, without entering details in Cheque Issue Register and cash book, he had used 106 number of cheques belong to the official bank account of the Assistant Director of Agriculture, Mananthavady and thereby withdrew an amount of Rs.81,92,075/- ;

2) He had transferred an amount of Rs.1,10,000/- from the official bank account of Assistant Director of Agriculture, Mananthavady to the joint bank account of the petitioner and his father Alexander Muthalaly;

3) By presenting fake bill of a firm named Nakshathra, an amount of Rs.1,10,000/- was drawn from the account of the Assistant Director of Agriculture, Mananthavady;

4) Without implementing the progress under the scheme Agricultural Technology Management Agency (ATMA) and Pradhan Manthri Krishi Sinchayee Yojana (PMKSY), he absorbed the alloted fund of Rs.10,19,462/- pretending that the programmes are implemented;

5) He illegally obtained a financial gain of Rs.1,47,020/- through the bogus purchase of office articles and services;

6) The department scooter alloted to Thavinjal Krishi Bhavan was recalled to the office of the petitioner and an amount of Rs.18,000/- being the fuel charge of the said scooter was drawn and alloted to Agricultural Officers of Thavinjal Krishi Bahavan, but that amount was not received by the Agricultural Officers;

7) He transferred an amount of Rs. 2,20,000/- to the personal bank accounts of his subordinate staff members;

8) An amount of Rs.10,48,170/- which was alloted to farmers by District Panchayat has not been disbursed to them and the same was taken by the petitioner;

9) An amount of Rs.2,75,000/- which is alloted for the improvement of black pepper cultivation was disbursed to an undeserving individual;

10) He obtained money by misusing the official vehicle alloted to the Assistant Director of Agriculture, Mananthavady. He used the vehicle for his personal needs by showing deception in the vehicle diary and thereby misappropriated public money;

11) An amount of Rs.15,00,000/- has been lost to public exchequer by ruining agricultural equipments and machineries due to improper management;

12) He kept the official cheque book of the Assistant Director of Agriculture, Mananthavady in personal custody and used it for his own personal purpose.

Records also indicate that immediately after detecting huge financial fraud committed by the petitioner, he was placed under suspension in 2017 and thereafter he was never reinstated in service. The crime was registered and the investigation brought out more serious allegations against the petitioner. The statement filed by the Investigating Officer indicates that the allegations are supported by documents and statements given by material witnesses.

I have also gone through the case diary and the statements given by one Dineshan, who is the Under Secretary in Finance Inspection Wing, who led the inspection of the office, Shajan Thomas, then Principal Agricultural Officer of Wayanad district, Beetha who was the clerk under him and one Gunashekharan who was the Assistant Director in the Office of the Principal Agricultural Officer, Mananthavady. All these statements clearly indicate the extent of financial fraud committed by the petitioner. In the circumstances, even though he claimed that he had obtained good service entry and other State level awards, it is very clear that he had committed very serious financial malfeasance and misfeasance and therefore, there is prima facie evidence to proceed against him.

The learned counsel submitted that the inspection wing had inspected his office during his absence, he was not given breathing time to explain the discrepancies noted by them, that if cross checks are done with Krishibhavans, he would be able to convince the Investigating Officer that the allegations are incorrect. No doubt, he will be able to prove his contentions. But after rushing through the case diary, I have no doubt that the allegations against him are very serious.

All the same, the case diary indicates that the investigation has progressed considerably. He is in custody from 25.11.2021 onwards. I am not convinced that continued detention of the petitioner is warranted at least at this stage, when investigation has reached the final phase. Moreover, the Investigating Officer has no apprehension that, if released on bail, he will be able to influence the witnesses or tamper with the evidence. He is a native of Kollam and the cause of action had arisen in Wayanad district. Now he is no more in service. He stands retrenched from service after taking disciplinary action so that, it would not be reasonable to think that he would be able to influence witnesses, most of whom are officials. Therefore, whatever may be the apprehension raised  by  the  investigating  agency,  appropriate  conditions  can  be imposed to guard against such apprehensions and he can be released on bail. Moreover, since the investigation has gone to the final phase, it would be a luxury to detain him in custody at this stage. Therefore, he shall be released on bail on the following conditions:-

i. He shall execute a bond for Rs.25,00,000/-(Rupees Twenty five lakhs only) with two solvent sureties each for the like amount to the satisfaction of the Special Judge;

ii.He shall appear before the Investigating Officer and also before court as and when necessary;

iii. He shall not try to meet or contact the material witnesses in any manner;

iv. He shall not enter Wayanad revenue district except on call by the Investigating Officer;

v. He shall surrender his passport before the court within ten days from release; if he does not possess a passport, an affidavit to that effect shall be filed before court;

vi. He shall not involve himself in any crime during the period on bail;

vii. He shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;

viii. If any of the above condition is violated by the petitioner, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

The Bail Application is allowed as above.