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2025 DIGILAW 2309 (KER)

Santhosh philip, s/o. Chakko v. State Of Kerala

2025-08-26

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure , by the sole accused to quash all further proceedings in C.C.No.9/2022 on the files of the Enquiry Commissioner & Special Judge, Kottayam, arising out of crime No.1/2004 of Vigilance and Anti-Corruption Bureau, Kottayam. 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor as well as the learned counsel appearing for the 3 rd respondent, who is the complainant in the above case. 3. Tracing the genesis of the case, as on 31.12.1999, a crime was registered by Kaduthuruthy Police Station, Kottayam, alleging commission of offences punishable under Sections 408 , 409, 467, 468 and 120A r/w 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by the accused, acting on a complaint, vide CMP 8129/99 filed by the 3rd respondent/complainant before the Judicial First Class Magistrate Court, Vaikom. The allegation in the complaint was that the accused named therein misappropriated Rs.50,000/- (Rupees fifty thousand only). During investigation of the said crime, CW28 transferred the case to VACB, Eastern Range Police Station, Kottayam and thereafter, the crime was re-numbered as VC 01/04/ERK, incorporating the offences punishable under Sections 408 , 409, 467, 468 and 120A r/w. 34 of IPC as well as under Section 13 (1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’ for short). 4. As submitted by the learned counsel for the petitioner and as borne out from Annexure A, the present final report (report filed after further investigation) and Annexure B (the earlier final report), as on 07.08.2013, Annexure B report was filed by the Investigating Officer, stating that none of the offences were made out and accordingly, it was prayed to accept the report and treat the case as ‘Further Action Dropped’. When the initial final report, i.e., Annexure B, was considered by the Special Judge, the learned Special Judge was not satisfied with the report and accordingly, he had ordered further investigation and in turn, the present final report, produced as Annexure A, was filed and as per which, the prosecution alleges commission of offences punishable under Sections 471, 477A and 409 of IPC as well as under Sections 13 (1)(c) and (d) r/w 13(2) of the PC Act by the accused. 5. 5. In this case, the prosecution allegation as per the present final report is that the accused while working as former UD Clerk, KWA Sub Division, Kaduthuruthy during the year 1996- 1998 and as such being a public servant by abusing his official position dishonestly misappropriated the bill amount corresponding to Cheque No.148190 dated 31.03.98 for Rs.9,290/- corresponding to CBV 62 of 3/98 and Cheque No.761119 dated 23.04.98 for Rs.15,465/- corresponding to CBV 43 of 4/98 due to Sri.K.K.Vishakan, C class contractor of KWA, Kaduthuruthy, by presenting the said uncrossed bearer cheque either by himself or through some other person at the bank for encashment, by using the corresponding counterfoils of the encashed cheques having forged signatures of Sri.K.K.Visakhan for acknowledging the receipt of the cheques as genuine, by wilfully and fraudulently making false entries in the cash book and thereby obtained a pecuniary advantage of Rs.24,755/- due to CW1 towards the contract work carried out by him under KWA, Kaduthuruthy, for himself. Thus the accused has committed the offences of criminal misconduct, criminal breach of trust, falsification of accounts and using as genuine forged documents punishable under Section 13 (1)(c) and (d) r/w 13(2) of the PC Act and Sections 471, 477A and 409 of IPC. 6. It is pointed out by the learned counsel for the petitioner that as per the initial final report, recommendation to drop the proceedings was made and subsequently, as directed by the Special Court, during further investigation, the present final report has been filed, arraying the petitioner alone as the accused, after excluding all other persons, who were Assistant Engineer and Assistant Executive Engineers arrayed in the complaint. Accordingly, it is submitted that this case was registered at a much belated stage and the petitioner has been banking on the litigation for the last 27 years. Therefore, the delay may be considered in favour of the petitioner. According to the learned counsel for the petitioner, even on merits, merely because the petitioner is alleged to have kept the cash of the Kerala Water Authority (KWA) during the relevant period and the cheques involving Rs.9,290/- and Rs.15,645/-, it could not be safe to hold that the petitioner is responsible for the misappropriation without the junction of others. 7. The learned counsel for the petitioner placed decision of the Apex Court in Sirajul & Ors. 7. The learned counsel for the petitioner placed decision of the Apex Court in Sirajul & Ors. v. The State of U.P. & Anr., reported in (2015) 9 SCC 201 , with reference to paragraph No.11, where the Apex Court after referring the earlier decisions, held that, we have given due consideration to the rival submissions. The question whether the proceedings in criminal cases not covered by Section 468 Cr.P.C. could be quashed on the ground of delay has been gone into in several decisions. While it is true that cases covered by statutory bar of limitation may be liable to be quashed without any further enquiry, cases not covered by the statutory bar can be question on the ground of delay in filing of a criminal complaint in appropriate cases. In such cases, the question for consideration is whether there is violation of right of speedy trial which has been held to be part of Article 21 of the Constitution having regard to the nature of offence, extent of delay, person responsible for delay and other attending circumstances. 8. The learned counsel for the 3 rd respondent would submit that there is no delay in the matter, as contended by the learned counsel for the petitioner, since the misappropriation during the period between 1996 to 1998 was noticed and FIR was registered in the year 1999 and the investigation was delayed for multiple reasons, and for which, the complainant or the prosecution is not responsible. In such view of the matter, there is no delay to be adjudged in favour of the accused. He also argued that since the prosecution records would show prima facie that the offences were committed by the accused, the matter would require trial, and as such, the quashment sought for must fail. 9. The learned Public Prosecutor zealously opposed quashment of the case and shared the argument of the learned counsel for the 3rd respondent that there is no delay since the crime was registered in the year 1999 itself. The learned Public Prosecutor placed the statement of the Deputy Superintendent of Police, VACB, Eastern Range, Kottayam, dated 27.06.2023, with reference to paragraph Nos.4, 9 and 10 along with statements of witnesses - CW10, CW12, CW15 and CW23 to substantiate the fact that in the matter of misappropriation of Rs.9,290/- and Rs.15,465/- as per cheque Nos. The learned Public Prosecutor placed the statement of the Deputy Superintendent of Police, VACB, Eastern Range, Kottayam, dated 27.06.2023, with reference to paragraph Nos.4, 9 and 10 along with statements of witnesses - CW10, CW12, CW15 and CW23 to substantiate the fact that in the matter of misappropriation of Rs.9,290/- and Rs.15,465/- as per cheque Nos. 148190 and 761119 the involvment of the petitioner is specifically made out and the witnesses statements would suggest that the petitioner is the person responsible for encashment of the cheques by forging the signatures, without the signatures of the complainant and misappropriated the said amount. Therefore, quashment is liable to fail. It is also pointed out by the learned Public Prosecutor that in fact, accused Nos.1 and 2 are no more and therefore, in the charge, they were excluded. The 4 th accused was excluded as his role in the alleged occurrence not made out during investigation. 10. Paragraph Nos.4, 9 and 10 of the statement filed by the Dy.S.P., VACB, Eastern Range, Kottayam, read as under: “4. It is submitted that, as part of investigation, total 28 witnesses were questioned and 57 records were seized. In fact, the original 8 cheques out of the total 10 cheques involved in the allegation were lost from the JFCM Court, Vaikom; the Investigating Officer had seized the remaining 2 cheques involved in the allegation bearing No.594655 and 14810 and subjected it for FSL examination. The FSL authorities after comparison of signature of the 3 rd respondent in the above 2 cheques reported that, the signatures seen on the overleaf of the cheques were that of the 3 rd respondent Sri.K.K.Visakhan himself and no misappropriation or forgery was revealed in respect of these 2 cheques. In the case of other 8 encashed cheques, the original cheques were lost from the court and hence it could not prove in evidence. The only way to prove the allegation is to compare the signature of the 3 rd respondent with the alleged documents and there were no other evidences availble to substantiate the allegation. So, the investigating officer seized the original counterfoils of 6 cheques from the Assistant Executive Engineers office, Kaduthuruthy and 5 among the 6 original counterfoils seized carried the signature of the recipient. So, the investigating officer seized the original counterfoils of 6 cheques from the Assistant Executive Engineers office, Kaduthuruthy and 5 among the 6 original counterfoils seized carried the signature of the recipient. The said 5 original counterfoils were sent to FSL and subjected for comparison of signature and the remaining one counterfoil of the cheque was seized bu the signature of the recipient on acknowledgment was found missing in the counterfoil. The FSL examination result proved that, the signatures seen in the 5 original counterfoils were that of the 3 rd respondent. 5. xxxxx 6. xxxxx 7. xxxxx 8. xxxxx 9. During the investigation Cheque No. 148190, 761119 along with 18 available certified copies of bills in CBV 58 of 4/98 were sent to FSL examination. Thus the FSL report (Ext P2) and the statement of Forensic Expert (CW21) clearly indicated forgery of the 3 rd respondent signature in the cheque counter foils no 148190 and 761119 which were issued from the office of the assistant executive engineer Kerala Water Authority Sub Division Kaduthuruthy in the name of CW1 (Sri. K. K. Visakhan) and presented and encashed a total sum of Rs. 24,755/- from SBT Kaduthuruthy Branch on 02.04.1998 and 25.04.1998 respectively. It is evident from Exts. D1, D2, E3, E4, E5, R1 and from the statements of CW5, CW24, CW25, CW26 that A2 Sri.Santhosh Philip had been holding the charge of Head clerk at the office of Asst. Executive Engineer PH sub Division Kaduthuruthy during the period of alleged issuance of 10 cheques in the name of CW1 and as such he was the custodian of the cheque books in the asst. Executive Engineers office. He was held responsible for the preparation and issuance of cheques to contractors. 10. While on Investigation the overt act of the petitioner (A2) is proved with the seizure of following documents and witness statements. The Cash Book of Kerala Water Authority, Kaduthuruthy Sub Division (Ext. E2. Page No. 160 & 177, W9, W19, W25) proves that the above cheques bearing Nos. 148190 for Rs. 9.290/- and cheque No. 761119 for Rs. 15,465/- were issued in the name of Sri.K.K. Vaishakan as per Cash Book Voucher (CBV) 62 of 3/98 (Ext C3) and CBV 43 of 4/98 (Ext C2) on 31.03.98 and 23.04.98 respectively. W5 stated that in sheet No. 160 and 177 of the Cash Book, the entries of Rs. 148190 for Rs. 9.290/- and cheque No. 761119 for Rs. 15,465/- were issued in the name of Sri.K.K. Vaishakan as per Cash Book Voucher (CBV) 62 of 3/98 (Ext C3) and CBV 43 of 4/98 (Ext C2) on 31.03.98 and 23.04.98 respectively. W5 stated that in sheet No. 160 and 177 of the Cash Book, the entries of Rs. 9.290/- (Cheque No. 148190) Rs. 15,465/- (Cheque No. 761119) were seen. The witness also stated that the above said cheques were in the custody of A2 (Petitioner) and the cash book was prepared by him. The complainant (W1) didn't receive the amount of the above 2 cheques and it is evident from the FSL report that the said amount was misappropriated by the KWA officials by way of impersonating the signature of 3 rd respondent in the cheque counterfoils. Further the accused were falsified the accounts. The cheque amounts were encashed from SBT, Kaduthuruthy on 02.04.98 and 25.04.98 respectively (W 22) accused during the period from 20.09.1996 to 28.07.1998. Further the accused were falsified the accounts in the cash book. The witnesses also identified the hand writings in the cash book of A2.” 11. First of all, I shall address the question of delay, as pointed out by the learned counsel for the petitioner. On perusal of the records, it could be seen that the allegation of misappropriation was raised during the period between 1996 and 1998, for which a complaint was lodged during 1999 and accordingly, crime was registered on 31.12.1999 itself by Kuduthuruthy Police and during investigation on finding commission of offences under the PC Act, the investigation was transferred to VACB, VACB re- numbered the case as VC 01/04/ERK. Thereafter, initially, a report recommending further action dropped was filed and was not accepted by the special court, and, in turn, the special court directed further investigation, which resulted in filing of Annexure A report. Since the crime was registered on the next year itself, it could not be safe to hold that the investigation started at a much belated stage, though by that time, 27 years had elapsed. Merely because of pendency of proceedings and judicial interference, the trial being stalled, that by itself could not be adjudged in favour of the accused unless there is long delay in registering the crime itself. Merely because of pendency of proceedings and judicial interference, the trial being stalled, that by itself could not be adjudged in favour of the accused unless there is long delay in registering the crime itself. Therefore, the challenge raised by the petitioner on this count would necessarily fail and is accordingly set to rest. 12. Coming to the decision placed by the learned counsel for the petitioner also, the Apex Court held that when cases not covered by the statutory bar sought to be quashed on the ground of delay in filing a criminal complaint, the question for consideration is whether there is violation of right to a speedy trial, which is recognized part of Article 21 of the Constitution of India and this aspect must be considered in the light of the nature of offence, the extent of delay, the person responsible for the delay and other attending circumstances. 13. Applying the ratio of the above decision, in fact, the same has no direct application in the present case, as there is no delay in filing the criminal complaint. Therefore, this contention cannot be adjudged in favour of the petitioner. 14. Coming to the allegation, the same is confined to encashment of a total sum of Rs.24,755 (9290 + 15465) through two cheques alleged to be in the custody of the petitioner. 15. While addressing the contention raised by the learned counsel for the petitioner that, the liability of misappropriation was solely attributed against the petitioner, after removing all other accused from the array of accused, the submission is not digestible for the simple reason that accused Nos.1 and 2 are no more as submitted by the learned Public Prosecutor. As regards the role of the 4 th accused, the same could not be found during further investigation and thereby, he also was removed from the array of accused. 16. Coming to the crux of the matter, misappropriation of Rs.24,755 (Rs.9,290/- + Rs.15,465) is the allegation and the allegation is substantiated by the statements of CW10, CW12, CW15 and CW23 that during the relevant period, the petitioner handled the cash book of the Kerala Water Authority, Sub Division. The Cash Book of Kerala Water Authority, Kaduthuruthy Sub Division (Ext. E2. Page No. 160 & 177, W9, W19, W25) proves that the above cheques bearing Nos. 148190 for Rs.9.290/- and cheque No. 761119 for Rs. The Cash Book of Kerala Water Authority, Kaduthuruthy Sub Division (Ext. E2. Page No. 160 & 177, W9, W19, W25) proves that the above cheques bearing Nos. 148190 for Rs.9.290/- and cheque No. 761119 for Rs. 15,465/- were issued in the name of Sri.K.K. Vaishakan as per Cash Book Voucher (CBV) 62 of 3/98 (Ext C3) and CBV 43 of 4/98 (Ext C2) on 31.03.98 and 23.04.98 respectively. W5 stated that in sheet No. 160 and 177 of the Cash Book, the entries of Rs. 9.290/- (Cheque No. 148190) Rs. 15,465/- (Cheque No. 761119) were seen. The witness also stated that the above said cheques were in the custody of the petitioner and the cash book was prepared by him. The complainant (W1) didn't receive the amount of the above 2 cheques and it is evident from the FSL report that the said amount was misappropriated by the KWA officials by way of impersonating the signature of 3 rd respondent in the cheque counterfoils. Further the accused falsified the accounts in this regard. The cheque amounts were encashed from SBT, Kaduthuruthy on 02.04.98 and 25.04.98 respectively (W 22) accused during the period from 20.09.1996 to 28.07.1998. In this regard also, the accused falsified the accounts in the cash book. The witnesses also identified the hand writings in the cash book of A2. 17. Since the prosecution records would show the petitioner’s involvement in this crime with sufficient materials, prima facie, the quashment sought for could not be considered and the matter would require trial. The contentions now raised before this Court can be raised by the petitioner before the special court during trial. Holding so, this petition is dismissed. The interim order of stay stands vacated. Since the crime is of the year 2004, there shall be a direction to the Special Judge to expedite the trial and complete the same within a period of four months from the date of receipt of a copy of this order without fail. Registry is directed to forward a copy of this order to the special court for information and compliance forthwith.