Jose.P.Abraham vs State Of Kerala

The revision petitioner herein is the 1st accused in C.C No.221/2016 of the Special Court (Vigilance), Muvattupuzha. He and the 2nd accused have been facing trial on the allegation of criminal misappropriation amounting to criminal misconduct as defined under Section 13(1) of the Prevention of Corruption Act, and also under Sections 409, 465, 468, 471 and 120B I.P.C. The petitioner is the former Assistant Director of Agriculture, Devikulam, and the 2nd accused was the Agriculture Officer there. The prosecution case is that an amount of ₹1,50,000/- meant for disbursement to the different beneficiaries under a Scheme of Agricultural Department was sanctioned by the 1st accused on the basis of a report submitted by the 2nd accused, the amount was received by the 2nd accused for disbursement to the beneficiaries, but the 2nd accused misappropriated the amount without disbursing it to the beneficiaries. Pending the prosecution proceedings, the petitioner filed CMP 1382/2016 for discharge under Section 239 Cr.P.C.

After hearing both sides, the learned trial Judge disallowed the request by order dated 12.12.2018. The said order is under challenge in this revision petition.

On a perusal of the final report, I could find that there is something suspicious as regards the allegations against the 1st accused. Accordingly, the VACB was directed to file a statement as to what exactly is the specific allegation against the 1st accused, and how he happened to be arraigned as accused along with the 2nd accused when the definite allegation of misappropriation is actually against the 2nd accused. The VACB accordingly filed a statement that final report against the 1st accused in fact happened to be mistakenly filed when the offence actually proved by the prosecution materials is only as against the 2nd accused.

On a perusal of the final report in this case, I find that the allegation of actual misappropriation is only against the 2nd accused, and the 1st accused was roped in under Section 120B I.P.C on the allegation that he sanctioned the amount as part of a conspiracy. Of course, the final report shows that the 1st accused sanctioned the amount of ₹1,50,000/- for payment to the different beneficiaries under a scheme accepting the list submitted and certified by the 2nd accused.

The only allegation practically against the 1st accused is that without insisting on the production of a completion certificate, the 1st accused sanctioned the amount. Anyway, it is a fact revealed by the final report that the 1st accused happened to sanction the amount on the basis of the report certified and submitted by the 2nd accused, and the amount was also received by the 2nd accused from the office. Instead of disbursing the amount to the different beneficiaries, the 2nd accused misappropriated the amount. According to the prosecution, the person who actually misappropriated the amount is the 2nd accused and there is nothing to show that he did it at the instance of the 1st accused or as instigated or facilitated by the 1st accused. It appears that just because the 1st accused sanctioned the amount on the basis of the report submitted by the 2nd accused, containing the list of the different beneficiaries, the 1st accused is being prosecuted. No doubt, the 1st accused is the proper and competent person to give evidence regarding the material aspects including the failure on the part of the 2nd accused to disburse the amount. Instead of bringing him as the competent witness, the VACB unfortunately arraigned him as 2nd accused and submitted final report against him. I find on a perusal of the entire materials that the proceeding against the 1st accused will be an abuse of legal process when there is no denite prima facie case as against him to form a judicious opinion regarding his involvement or complicity in the offence alleged against the 2nd accused, and that practically the allegation of actual misappropriation is only as against the 2nd accused.

In the result, the revision petition is allowed. Accordingly, the order of the trial court dated 12.12.2018 dismissing CMP No.1382/2016 will stand set aside, and the petitioner will stand discharged. The court charge, if any, framed as against him by the trial court will stand set aside. The Registry shall immediately transmit the case records to the trial court, and the case shall proceed as against the other accused.

APPENDIX

PETITIONER'S/S EXHIBITS:

ANNEXURE-A1 TRUE COPY OF THE CIRCULAR HAVING NO.T.C (1) 35131/93 DATED 12.06.1993

ANNEXURE-A2 THE RELEVANT PAGES OF THE FACTUAL REPORT OBTAINED UNDER RIGHT TO INFORMATION ACT

ANNEXURE-A3 THE RELEVANT PAGES OF ADVANCE RECEIPTS AND LIST BENEFICIARIES CERTIFIED BY THE A2 HAVING DISBURSED AMOUNT OF RS.1,50,000/- AS CONTAINED IN EXHIBIT B10

ANNEXURE-A4 TRUE COPY OF THE DISCHARGE SUMMARY DATED 11.06.2016

ANNEXURE-A5 TRUE COPY REPORT OF THE DEPARTMENT OF CARDIOLOGY OF LISIE MEDICAL INSTITUTION LATER 14.12.2017

ANNEXURE-A6 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM RIMS HOSPITAL DATED 21.03.2018

ANNEXURE-A7 THE TRUE COPY OF THE USQ SCAN ISSUED FROM THE DEPARTMENT OF RADIOLOGY AND IMAGING SCIENCE DATED 14.02.2018

ANNEXURE A8: TRUE COPY OF THE FIR NO.VC 08/2004 DATED 4.5.2004 OF VIGILANCE POLICE, IDUKKI ALONG WITH TYPED COPY OF ANNEXURE-A8

ANNEXURE A9: THE TRUE COPY OF THE FINAL REPORT CC 221/2016 (FIR NO.VC 08/2004) OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM DATED 26.02.2013

ANNEXURE A10: TRUE COPY OF THE RELEVANT PAGES OF FORWARDING ENDORSEMENT ISSUED BY THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, EASTERN RANGE, KOTTAYAM DATED 29.4.2009

ANNEXURE-A11:TRUE COPY OF THE LIST OF BENEFICIARIES FOR LAND DEVELOPMENT PROGRAMME UNDER LOCATION SPECIFIC SCHEME 93-94 OF KRISHI BHAVAN, KANTHALOOR