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2025 DIGILAW 1720 (KER)

Joseph M. J. S/o Joseph Joseph v. State of Kerala

2025-06-26

A.BADHARUDEEN

body2025
ORDER : 1. Accused Nos.3 and 5 in C.C.No.19 of 2024 pending before the Enquiry Commissioner and Special Judge (Vigilance), Kottayam, have filed this Criminal Miscellaneous Case under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking to quash Annexures A1 and A2 in Crime No. 9/2021 of the Vigilance and Anti-Corruption Bureau, Kottayam Unit Police Station, Kottayam District. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala. 3. The prosecution case is that accused Nos. 1 to 7 while working as employees in the Kerala State Beverages Corporation, Shop No. FL 1 5002, Changanassery, Kottayam District in furtherance of their common intention, abused their official position as public servants with the intention to cheat the Corporation. Thereafter they forged documents and made false entries in the Stocks and Sales during the period from 1/12/2018 to 17/3/2019 and used the forged documents as genuine and thereby misappropriated the Government money to the tune of Rs. 59,06,557/-. On the above premise, the prosecution alleges commission of offences punishable under Sections 13 (1) (c) of the Prevention of Corruption Act, 1988 and 468, 471, 477 (A), 409, 420 and 34 of IPC, by the accused. 4. The learned counsel for the petitioner would submit that the prosecution launched as against accused Nos.3 and 5 is illegal and unwarranted. He would submit further that the proceedings are barred by the principles of res judicata since as per Annexure A3 common judgment in W.P(C).No.33047/2019 and connected cases dated 18.11.2024, this Court set aside Ext.P3 in W.P(C).No.32713/2019, regarding liability of the petitioners with certain directions. It is also pointed out that the petitioners were never in-charge of the beverages shop and they have no connection with the sale of liquor since they are class IV employees. Therefore, the proceedings against them are liable to be quashed. 5. Whereas it is submitted by the learned Public Prosecutor that the allegation as to commission of the above offences is well made out, prima facie, where the prosecution specifically alleges that accused 1 to 7 hatched conspiracy and as part of the said conspiracy, they have forged documents, used the same as genuine by misusing their position as Government servants and misappropriated a total sum of Rs.59,06,557/- during the period from 01.12.2018 to 17.03.2019. Since the prosecution materials are abundant, prima facie, to see the complicity of the accused, including the petitioners, quashment of the proceedings cannot be opted as the matter would require trial. It is also pointed out by the learned Public Prosecutor that in view of Annexure A3 judgment, res judicata would not arise in this case since the assessment of civil liability alone was considered in the Writ Petition and the judgment in the Writ Petition would not efface criminal offences committed by the petitioners. 6. Having addressed the rival contentions it is relevant to note that, here the prosecution alleges that accused 1 to 7, while working as employees in the Kerala State Beverages Corporation (hereinafter referred to as `the Corporation’ for short), Shop No.FL 1 5002, Changanassery, Kottayam district, in furtherance of their common intention hatched conspiracy and abused their official position as public servants with intention to cheat the Corporation. Whereby they dishonestly and fraudulently made forged documents and used them as genuine documents during the period from 01.12.2018 to 17.03.2019 and thereby they misappropriated Rs.59,06,557/-. It is true that when the Writ Petition leading to Annexure A3 judgment was filed, this Court interfered the same. But as per Annexure A3 judgment this Court considered W.P(C).No.33047/2019 filed by the petitioners herein, who are petitioners 1 and 3 therein, challenging certain circulars issued by the Managing Director of the respondent Corporation as well as the steps taken on that basis. Further, in the Civil Writ petition Exts.P1 to P3 therein were challenged and this Court disposed of the Writ Petition holding that Exts.P1 and P2 therein were merged with Ext.P3 after addressing various penalties under the service rules and the procedure of penalties. Then Ext.P3 circular was set aside after declaring that the respondent Corporation can proceed for the realization of the loss suffered by the respondent Corporation from its employees, only with reference to the provisions of the Service Rules approved by the Government pursuant to G.O.(MS) No.4/86/TD dated 07.01.1986. 7. The question arises for consideration is whether Annexure A3 judgment would operate res judicata in proceedings against the petitioners alleging commission of criminal offences? 7. The question arises for consideration is whether Annexure A3 judgment would operate res judicata in proceedings against the petitioners alleging commission of criminal offences? On reading Annexure A3, as discussed herein above, it is difficult to hold that when Annexure A3 was set aside with liberty to the Corporation to proceed with realisation of the loss suffered by the respondent Corporation from its employees the same would operate as res judicata in proceeding against the petitioners for the offences they alleged to have been committed. On no stretch of imagination one could say that when dispute regarding civil liability was interferred by a court and set aside the order under challenge finding the same as unsustainable with liberty to proceed afresh as per law to realise the due amount, the same would efface the criminal culpability of the accused. Therefore, it could not be held that Annexure A3 would save the petitioners with protective cover of res judicata and the contention raised by the learned counsel for the petitioners in this regard is found to be unsustainable. 8. The other contention raised is that the petitioners have no role since they have no direct deal in the business of the Corporation as they are class IV employees. While addressing this contention, the learned Public Prosecutor would submit that in the Beverages Corporation outlet when staff were posted, they jointly do the works in view of the particular nature of the work. Therefore, Class IV employees are also on par with the other employees in the matter of the sale of liquor, collection of money and maintenance of records. Therefore, this contention at the instance of the petitioners is liable to fail. In fact, the contention raised by the learned Public Prosecutor in the above line appears to be convincing considering the nature of work at the Beverages Corporation outlet dealing with sale of liquor. Therefore, this contention also would not save the petitioners. 9. Therefore, this contention at the instance of the petitioners is liable to fail. In fact, the contention raised by the learned Public Prosecutor in the above line appears to be convincing considering the nature of work at the Beverages Corporation outlet dealing with sale of liquor. Therefore, this contention also would not save the petitioners. 9. In the instant case, going through the statements recorded as that of the witnesses along with the records collected during investigation, it is emphatically clear that the prosecution materials, prima facie, established commission of offences alleged against the petitioners as part of conspiracy hatched between them and the plea of innocence at the instance of the petitioners could not be considered by this Court in a proceedings to quash the same since the said contentions can only be considered by the trial court after recording evidence of the prosecution as well as defence. On perusal of the order of sanction issued by Smt.Harshita Attaluri IPS, Chairman and Managing Director, Kerala State Beverages Corporation, Thiruvananthapuram, produced as Annexure A2, the order dated 16.10.2024 issued under Section 19(1)(c) of Prevention of Corruption Act, 1988 as amended by Prevention of Corruption (Amendment), 2018, the entire prosecution case was addressed after holding that the accused persons together have committed the offences and thereby sanction was accorded for prosecution of the accused persons. Since the prosecution case is well made out, prima facie, warranting trial, quashment of the proceedings sought by the petitioners would not succeed and in such view of the matter, this Criminal Miscellaneous Case must fail. 10. Accordingly, this Crl.M.C stands dismissed.