Josemon vs State Of Kerala

Sunil Thomas, J

The second accused in V.C.No.11/2021/KTM of Vigilance and Anti Corruption Bureau Kottayam, for offences punishable under S.7 of Prevention of Corruption Act r/w 120B of IPC, is the applicant in B.A.No.9953 of 2021. The sole accused in V.C.No.1 of 2022/SCE of VACB of Special Cell Ernakulam for offences punishable under S.13(2) r/w S.13(1)(e) of the PC Act and 13(2) r/w S.13(1)(b) of the PC Act is the applicant in B.A.No.677 of 2022. Both the applicants are the same.

The common petitioner was the Environmental Engineer in the Kottayam Office of Kerala State Pollution Control Board. The first accused in V.C.No.11/2021/KTM is the successor in office of the petitioner, as the Environmental Engineer of Kottayam office. The crux of the allegation in V.C.11/2021/KTM is that, both the persons, being public servants conspired with the intention of harassing the defacto complainant, who was a factory owner, not to issue Non-pollution Certificate for running his company unless their illegal gratification for money was satisfied. It is alleged that, the first accused demanded Rs.25000/- and the petitioner herein had earlier demanded 1 lakh of rupees. On the basis of the complaint laid by the defacto complainant to the Vigilance on 14.12.2021, a trap was laid. Thereupon, first accused was arrested in the course of handing over of the currency notes. Crime was registered on 15.12.2021, He was produced before the Court and was remanded. Thereafter, a search was conducted in the house of the petitioner herein and cash, gold, shares and several incriminating documents evidencing possession of disproportionate assets were recovered. Petitioner was arrayed as the second accused in that crime. Apprehending arrest, B.A.No.9953 of 2021 is filed. In V.C.No.1/2022/SCE, the allegation is that, pursuant to the registration of crime and the arrest of the first accused in V.C.No.11/2021/KTM, a search was conducted in the house of the petitioner herein. Fixed Deposit receipts and documents, share certificates to the tune of Rs.2.25 crores in the name of the petitioner, his wife, father and relatives were seized. Documents evidencing the ownership of several items of properties totalling to a sum around 5.5 crores were also recovered. Besides these, currency of several foreign countries and Indian currencies worth Rs.1,56,815/- were also recovered. Claiming that, all the above were tainted income, and that the petitioner has acquired properties disproportionate to his known source of income, V.C.No.1/2022/SCE was registered. Apprehending arrest, the petitioner has approached this Court seeking pre-arrest bail.

Heard both the learned counsel for the petitioner in each case, learned Special Government Pleader for Vigilance and also the learned counsel for the defacto complainant in V.C.No.11/2021/KTM. Though an application for impleadment was filed by the defacto complainant in V.C.1/2022/SCE, without allowing that application, the counsel was permitted to be heard only in V.C.No.11/2021/KTM, he being the defacto complainant in the above complaint. Examined the records.

The facts as is discernible from the records is liable to be appreciated for considering both the bail applications. The defacto complainant was running a tyre retreading unit in Kottayam. The unit was run on the strength of a license issued by the panchayath and a Clearance Certificate issued by the Kerala State Pollution Control Board. His neighbour submitted several complaints alleging that, running of the unit during day and night caused great inconvenience to him, due to noise and air pollution and requested that, it may be abated. Complaints were laid before various authorities. It seems that, the panchayath committee issued a stop memo based on communication dated 16.11.2016 of the Kottayam Unit of the Kerala State Pollution Control Board, informing him about the complaint of the neighbour and requiring him to abate the nuisance. The communication dated 16.11.2016 was challenged by the defacto complainant in W.P(C). No. 9857 of 2020. By judgment dated 02.12.2020, the above writ petition was disposed of by a learned Single Judge of this Court, directing that the Environmental Engineer shall conduct an inspection of the tyre retreading unit on 09.12.2020 at 11 a.m. in order to verify whether the petitioner had already complied with the directions by enclosing the building with sound proofing materials to reduce the sound level. It was directed that the petitioner and the neighbour or his representative shall be present at the time of inspection. It was further directed that, thereafter, the Environmental Engineer shall permit the defacto complainant to run his tyre retreading unit for a period of three days to find out, whether it caused any pollution and thereafter, the report shall be furnished to the petitioner and the 6th respondent within three days. Thereafter, the Environmental Engineer was directed to conduct a personal hearing within a further period of one week and take appropriate decision.

Thereafter, the defacto complainant approached this Court by filing C.O(C).No.1395 of 2021 on 24.08.2021 alleging that, inspite of the specific direction given by the court, no order was passed by the Environmental Engineer. Pending the proceedings, it was reported that, the petitioner was served with a copy of the report and thereafter the contempt was closed. The grievance of the defacto complainant was that, the petitioner herein during the inspection of the unit, had demanded a sum of Rs.1 lakh as bribe through the driver of the petitioner. In the meanwhile, the petitioner was transferred to another office. He was succeeded by the first accused as the Environmental Engineer. He also delayed granting of permission to run the unit. It was alleged that, suspecting that the petitioner was in collusion with the first accused and both had conspired to deny the defacto complainant's right, the defacto complainant approached the first accused on 10.12.2021. He demanded a sum of Rs.25,000/-. It was directed that, he shall make payment to him on 15.12.2021. On 14.12.2021, a complaint was laid, crime was registered on 15.12.2021 and trap was laid. Thereafter the first accused in V.C.No.11/2021/KTM was arrested while receiving bribe. Petitioner herein was arrayed as second accused. A search was conducted in the house of the petitioner, which led to the registration of V.C.No.1/2022/SCE.

Seeking bail, the learned counsel for the petitioner in V.C.No.11/2021/KTM vehemently contended that the petitioner is absolutely innocent and he has been roped in to spite him for having taken legal action. It was contended by the learned counsel for the petitioner that the facts of the case disclosed that, even though the defacto complainant has a specific case that bribe was demanded by the petitioner during his inspection and followed by the first accused on later day, such an allegation is conspicuously absent in Contempt Case No.1395 of 2021. To support it, a copy of the contempt petition was produced. It was also contended by the learned counsel for the petitioner that, there is absolutely nothing to show that the petitioner had demanded any money. He was transferred from the concerned office much prior to the incident that occurred on 15.12.2021. He has been unnecessarily roped in, for not having issued the consent due to valid reasons.

The learned counsel for the petitioner in V.C.No.1/2022/SCE contended that, all the items of properties which are mentioned in the search memorandum (Annexure-A1) are covered by Annexure-A2, which is a certificate issued by the Chartered Accountant. In the above certificate, the entire assets of the petitioner, including both immovable and movable properties were disclosed. The father of the petitioner was a businessman and had acquired considerable assets. He was also running a provision store. The wife of the petitioner was also an earning member. The all members of the family were tax payees. All the properties were ancestral properties which he had inherited from father. The amount in deposit included the deposits in favour of the parents and his wife, whose income were also on record. It was contended by the learned counsel for the petitioner that, if he is given a chance to produce those documents, he will be able to satisfy the authority that all assets are acquired through legal means, with his known source of income and his family members. Learned counsel pleaded for reasonable opportunity to appear before the investigating officer protected by the law and to convince the authority about the genuineness of his objection. To substantiate it, the Income Tax returns of all the members of family were produced.

Opposing the application for bail in B.A.No.9953 of 2021, learned Special Government Pleader submitted that the contention of the accused that there was no allegation in the contempt petition regarding the demand for bribe is fatal and that cast serious doubt on the prosecution case has no basis. According to the learned Special Government Pleader, in a contempt petition, the only material projected is that, there is a breach of the direction of the Court and it cannot normally be expected that, such allegations for demand for bribe could also be disclosed therein. The above contention of the learned Government Pleader prima facie seems to be rational and when the attempt of the defacto complainant himself was to ensure that the order of the Court was complied with, it cannot be expected that a demand for bribe, if at all made, would have been disclosed in the above contempt petition. Hence, that contention has no basis.

Justifying the demand for custody, learned Special Government Pleader invited the attention of this Court to the direction in the Writ Petition. It was specifically directed that, Environmental Engineer shall conduct an inspection and permit the unit to be run in his presence for a period of three days. He was directed to record the details of pollution and the sound and thereafter, prepare a report with copies to be supplied to the parties to the Writ Petition. Records show that, inspection was conducted on 09.12.2020 and the trial run was done in the presence of the Environmental Engineer and the parties who were present. Thereafter, a hearing was conducted by the authority on 02.03.2021. Alleging that the authority has not passed any order and that the copy of the report was not supplied, defacto complainant filed contempt case on 24.08.2021. The materials gathered by the investigating agency shows that the order was passed by the Environmental Engineer only on 31.08.2021, after the contempt was filed. The despatch register seized by the vigilance shows that, it was purported to be despatched on 01.09.2021. However, the postal receipt seized indicates that, it was sent only on 07.09.2021. It clearly showed that the direction of the High Court was flouted and purposefully delayed to satisfy illegal demand, it was contended.

Relying on the above materials, learned Special Government Pleader submitted that the considerable delay that has occurred need to be explained by the accused. Learned Special Government Pleader further submitted that, only by a custodial interrogation of the accused, it could bring out whether the delay was deliberate and to spite the defacto complainant. It was also essential to elicit the explanation of the accused as to whether it was done purposefully, to elicit information regarding the source of income and also to ascertain whether he has parked other movable assets elsewhere.

The materials on record shows that the investigating agency has recovered the call detail records of both the accused. Records further show that, after the contempt was filed and even before that, there were frequent telephonic contacts between the first and second accused. The statement of the driver of the second accused through whom demand for bribe was sought, has also been recorded. It seems that, sufficient evidence have been gathered by the investigation agency. Records clearly show that, judgment of the learned Single Judge was not complied with and the order was communicated highly belatedly, that too after the contempt petition was filed. In the above circumstances, the cause for the delay is one to be explained by the accused at the time of trial. It is not essential for the prosecution to show that, there was no valid reason for the delay. Hence, I do not feel that, for that purpose alone, custodial interrogation of the accused is warranted in V.C.11/2021.

In B.A.No.677 of 2022, learned counsel for the petitioner contended that the entire properties regarding which details were collected and gathered by the seizure mahazar are the self acquired and ancestral properties of the accused and which were obtained by him with his known income and that of the wife and parents. To substantiate it, the learned counsel relied on the IT returns. If an opportunity is given to the petitioner, he will be able to explain the source of above assets, it was submitted.

The seizure mahazar shows that the investigating agency has recovered details regarding 4 items of properties, which include landed properties, buildings and also one resort at Vagamon. The total value according to the investigating agency for the immovable property is around 5.5 crores. It also shows that, 58 FD receipts in different banks totalling to Rs.1,93,60,168/-, shares and passbook in relation to 7 SB accounts both in the name of the petitioner and his wife with a deposit of Rs.26,90,739/- have also been taken into custody. Two vehicles worth Rs.19,53,907/- were found. According to the prosecution, the total value of the entire property recovered from the petitioner is about Rs.7.5 crores. He and his wife held shares in Kochi International Airport and Lakeshore Hospital. From the possession of the petitioner, cash worth Rs.1,56,850/- and foreign currencies of different countries were also seized. Policies of various private insurance companies in the name of petitioner and his wife were also recovered. From the joint locker of petitioner and his wife, 581.33 gms of gold were detected. Though the learned counsel for the petitioner vehemently contended that, the entire assets include properties of his parents and those purchased with the funds provided by them, prima facie, his contention does not appear to be correct in the light of Annexure-A2 produced by the petitioner himself along with the bail application. It is a networth certificate prepared by the Chartered Accountant of the petitioner himself regarding the financial position of the petitioner and his wife. He has assessed the value of the immovable property as Rs.2,63,59,000/-. The worth of the movable assets was Rs.2,40,04,814/- thereby totalling to Rs.5,03,63,814/-. The annual income of the petitioner was quantified at Rs.19,20,170/-. Even if the income of his wife and parents are cumulatively taken, it cannot prima facie satisfy the enormous assets seized from the petitioner. Hence, even according to the assessment of his own Chartered Accountant, the properties belong to the petitioner and his wife. The worth of the total properties appears to be highly excessive when compared with his own source of income of Rs.19,20,170/-. The check period is 2011-2021. Hence, prima facie, the contention of the petitioner that the properties were acquired with the income of his wife and that of his parents cannot also accepted at this point of time.

The contention of the learned counsel for the petitioner that he may be given an opportunity to appear before the Investigating Officer to explain his contention, was seriously met by the learned Special Government Pleader. Learned Special Government Pleader invited my attention to the materials available on record which shows that, in the course of investigation, police officer went to the ancestral house of the petitioner. His parents informed that, he was away in connection with his employment and he does not normally contact the parents. He does not even telephonically contact them, it was informed. Since the accused could not be found out, notice under S.41A Cr.P.C was affixed at his house, directing him to appear before the authority on 21.12.2021 at 11 a.m. He did not appear before the authority. However, his wife had sent a letter dated 20.01.2022 informing that the petitioner was in quarantine having contact with COVID-19 patient and that, he has filed an anticipatory bail petition. She requested that, her husband may be permitted to appear after the disposal of the bail application. Records further show that, he did not intimate his office about his absence and remained away from the office. Notice was issued by the Pollution Control Board on 21.12.2021 directing him to attend duty and e-mail dated 26.12.2021 was sent by him seeking leave till 20.01.2022. Thereafter, he was suspended from the service.

The above materials show that the petitioner did not co-operate with the investigation nor did appear before the investigating agency. Evidently, the allegation against the petitioner is very serious. He seems to have amassed huge wealth disproportionate to the known source of income. The process by which and the period during which he amassed the wealth and whether he had any other illegal transaction needs to be investigated thoroughly. It is also essential to find out whether he has concealed further assets anywhere or has ownership over other undisclosed property. Only detailed and thorough investigation can bring it out.

The Honourable Supreme Court in State Rep. By The CBI v. Anil Sharma [(1997)7 SCC187] had held that the entire facts need to be considered in the case of granting a bail with the offence involved amassing wealth disproportionate to the known source of income. The Court held that, in such a case, anticipatory bail may be against an effective interrogation. In Y.S.Jagan Mohan Reddy v. Central Bureau of Investigation [AIR 2013 SC 1933] Supreme Court had considered granting of statutory bail to a politician, who was arrested in connection with the allegation of amassing huge wealth disproportionate to his known source of income. It need to be visited with different approach in the matter of bail, it was held. Economic Offence involving huge loss to the public funds needs to be viewed seriously and considered as grave offence affecting the economy of the country as a whole and shall be serious threat to the financial strength of the country.

After evaluating the entire facts of the case, gravity of allegations, materials gathered and the further materials to be elicited in the course of investigation, I feel that, granting of bail to the applicant in V.C.No.11/2022/SCE may not conducive for an effective investigation.

Having considered the entire facts, I am inclined to dispose of the bail applications as follows:

(I) B.A.No.9953 of 2021 is allowed as follows:

Applicant therein shall appear before the investigating agency within a period of 10 days from today and undergo interrogation. He shall completely co-operate with the investigation and after the investigation, if he propose to be arrested, he shall be released on bail, on he executing a bond for a sum of Rs.One Lakh with two sureties for the like sum each to the satisfaction of the jurisdictional court.

(II) B.A.No.677 of 2022 is dismissed. Accused shall surrender before the Investigating Officer forthwith.