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2025 DIGILAW 2342 (KER)

Jyolsna, W/o. Binu Jayapalan v. Soni P. Bhaskar

2025-08-27

G.GIRISH

body2025
ORDER : G. GIRISH, J. Crime No.651/2014 registered by the Pathanamthitta Police in respect of the commission of offence under Section 420 read with Section 34 of the Indian Penal Code, 1860 , (in short, ‘ IPC ') upon a complaint preferred by the petitioner herein, is the bed-rock of the issues involved in this Writ Petition and Crl.Revision Petition. 2. The parties are referred hereafter in their respective capacities and ranks as shown in WP(C) No.30780/2018, for the sake of convenience. 3. A conspectus of the case of the petitioner is as follows:- The petitioner, a middle aged lady, complained about the cheating perpetrated upon her by the respondents 1 and 2, who in their capacities as the Manager and Legal Advisor respectively, of a partnership firm by name, ESSEN Bankers, collected a total amount of Rs.27.5 lakhs from her with the offer that she would be provided with dealership in the automobile business proposed to be commenced by them, and thereafter defrauded her without honouring the above assurance, or giving back the amount collected from her. The petitioner is stated to have paid the above amount by way of two cheques of Rs.3,50,000/- each and cash Rs.20,50,000/-. Finding that the investigation is not effective, the petitioner filed a detailed representation before the 6 th respondent, upon whose direction, the investigation was handed over to the CBCID EOW-1, which refiled the case with the number 10/CR/EOW-1/KLM/15. Still aggrieved by the lack of progress in the investigation, she approached this Court for a direction to the State Police Chief to monitor the investigation either by himself or by an officer not below the rank of Inspector General of Police, and for a further direction to the 5 th respondent to complete the investigation expeditiously within a time frame. In the above Writ Petition, the Detective Inspector, CBCID, EOW-1, filed a statement in which it was stated that the original cheques which the accused encashed at SBT, Chengannur, were recovered. However, the above cheque leaves were not produced before the Magistrate concerned. Again at the intervention of this Court upon the complaint of the petitioner about the tardy investigation, it was submitted by the Public Prosecutor concerned that the investigation was at the final stage, and that the Final Report would be filed within three months. However, the above cheque leaves were not produced before the Magistrate concerned. Again at the intervention of this Court upon the complaint of the petitioner about the tardy investigation, it was submitted by the Public Prosecutor concerned that the investigation was at the final stage, and that the Final Report would be filed within three months. Upon enquiry, the petitioner came to know that the respondents 3 and 4, who were the Detective Inspector and Detective Sub Inspector respectively, neither prepared a mahazar regarding the recovery of two cheque leaves from SBT, Chengannur, nor produced the above cheque leaves before the court concerned. The further enquiries made by the petitioner revealed that the above cheque leaves seized by the respondents 3 and 4, were missing. Realising that the aforesaid cheques which were crucial pieces of evidence, were deliberately destroyed to save the culprits, the petitioner made a detailed representation before the 6 th respondent to take action against respondents 3 and 4. The 6 th respondent directed an enquiry to be conducted by the Superintendent of Police, CBCID OCW-2 with regard to the above missing of vital documents during the course of investigation. Finding that the enquiry was being conducted in a prejudicial manner with the intention of exonerating the 3 rd respondent, the petitioner filed a detailed complaint before the 7 th respondent to issue the necessary orders to register an FIR against the respondents 3 and 4 for causing disappearance of evidence and screening the actual culprits from legal punishment. On the basis of the above complaint, the respondents 3 and 4 were arraigned as accused Nos.4 and 5 in Crime No.10/CR/EOW-1/KLM/15 for the offence under Section 201 IPC . During the course of the above investigation, Mr. Shaji Sugunan, the Superintendent of Police, who held the office of 5 th respondent, obtained the mobile phone of the petitioner for extracting the whatsapp messages of communication between the petitioner and the 3rd respondent. The seizure of the petitioner’s mobile phone in the above regard was done by the said officer after verifying the Device Identification Number (IMEI) and model number which were rightly mentioned in the mahazar prepared. In the list of properties sent to the Magistrate, Mr.Shaji Sugunan deliberately omitted to note the Device Identification Number of the mobile phone and wrongly noted the colour of the said mobile phone. In the list of properties sent to the Magistrate, Mr.Shaji Sugunan deliberately omitted to note the Device Identification Number of the mobile phone and wrongly noted the colour of the said mobile phone. When the petitioner sought for correction of the above irregularities, she was informed by the above officer that the same was not necessary. Later on, when the petitioner got the FSL report dated 16.04.2018, she was shocked to see that the mobile phone sent for examination before the FSL showed a totally different Device Identification Number. Having been aggrieved about the partisan and unfair investigation done by Mr. Shaji Sugunan, the petitioner preferred a complaint before the 6th respondent, pointing to the manipulations committed by the 5 th respondent with the objective of aiding the accused. Since the Investigating Officer deliberately protracted the investigation, and did not file the Final Report before the court concerned, the petitioner approached this Court by filing WP(C) No.30780/2018 for handing over the investigation to the CBI. Due to the foul play committed by Mr. Shaji Sugunan, the whatsapp chat of the petitioner with the 3 rd respondent, which were of much importance in the enquiry relating to the missing of cheque leaves, could not be retrieved. Upon the complaint of the petitioner about the aforesaid misconduct of Mr. Shaji Sugunan, an enquiry was conducted as per the directions of the 6 th respondent. In the above enquiry report No.01/PTN/CB/AW/2018 dated 07.08.2018, the Enquiry Officer reported that seizure mahazar as well as property list were altered by Smt. Vijayasree, a Court Staff (property clerk) of the Chief Judicial Magistrate Court, Pathanamthitta. The above enquiry report was filed clandestinely by the Enquiry Officer without even recording the statement of the above said Viajayasree or other Court Staff. Since no action was taken by the sixth respondent in the complaint pertaining to the manipulations done upon the seizure mahazar and property list, the petitioner preferred CMP No.2668/2019 before the Chief Judicial Magistrate Court, Pathanamthitta, under Section 340 Cr.PC. In the proceedings initiated by the learned Chief Judicial Magistrate upon the above petition, the sworn statements of the petitioner, Mr. K.S. Sudarshan, who conducted the enquiry, Mr. Shaji Sugunan (fifth respondent), and Smt. S. Vijayasree, the Court Staff concerned, were recorded. In the proceedings initiated by the learned Chief Judicial Magistrate upon the above petition, the sworn statements of the petitioner, Mr. K.S. Sudarshan, who conducted the enquiry, Mr. Shaji Sugunan (fifth respondent), and Smt. S. Vijayasree, the Court Staff concerned, were recorded. After evaluation of the evidence in the above regard, the learned Chief Judicial Magistrate, as per the order dated 03.01.2023, arrived at the conclusion that there was no evidence to show that, after the filing of the seizure mahazar and the property list before the said Court, corrections were made by any Staff of that Court. It was further observed thereunder that the available evidence prima facie showed that corrections were made by the Police officials before producing the seizure mahazar and the property list in the Tapal Box of that Court. On the basis of the aforesaid finding, the complaint filed by the petitioner was dismissed. The petitioner again filed another complaint before the learned Chief Judicial Magistrate as Crl.M.P. No.708/2023 for a direction to the State Police Chief to register a FIR and to conduct an investigation under Section 156 (3) Cr.PC about the manipulations made by Mr. Shaji Sugunan, who tried to shield and save the actual culprits who assisted the persons accused of cheating her. Crl.M.P. No.708/2023 was dismissed by the learned Chief Judicial Magistrate with the observations that the allegations made thereunder, were the same allegations which she raised in Crl.M.P. No.2668/2019, and that the request in the above petition to have a review of those aspects were beyond the scope of law. It is aggrieved by the aforesaid order of dismissal dated 16.02.2023 of Crl.M.P. No.708/2023 by the Chief Judicial Magistrate Court, Pathanamthitta, that the petitioner has filed Crl.R.P.No.464/203 before this Court. The relief sought for in WP(C) No.30780/2018 is an order for CBI investigation into Crime No.10/CR/EOW-1/KLM/15 of the CBCID, EOW-1 as also against the manipulations committed by respondents 3, 4 & 5 during the course of investigation in the said crime, to save the culprits. 4. Heard the learned counsel for the petitioner, the learned counsel for the respondents 1 & 2 and the learned Public Prosecutor representing respondents 5 to 8. The respondents 3 & 4 were duly served with notice, but they did not choose to appear before this Court or prefer any objection. The respondents 9 and 10 were represented by the learned Special Public Prosecutor, CBI. The respondents 3 & 4 were duly served with notice, but they did not choose to appear before this Court or prefer any objection. The respondents 9 and 10 were represented by the learned Special Public Prosecutor, CBI. 5. A perusal of the facts and circumstances of this case narrated in paragraph No.2 hereinabove, would reveal that there was deliberate attempt to sabotage the investigation in the crime originally registered by the Pathanamthitta Police as FIR No.651/2014 under Section 420 read with Section 34 IPC in respect of the alleged cheating committed by respondents 1 & 2 upon the petitioner. It is seen that the two cheque leaves which were pivotal documents as far as the above offence is concerned, had gone missing while the investigation was being conducted at the instance of respondents 3 & 4. The contention of the petitioner that the above cheque leaves were recovered without the preparation of a mahazar, and it were not produced before the Magistrate concerned, would substantiate the allegation of the petitioner about the deliberate attempt on the part of the above respondents to stifle the investigation. It is also pertinent to note that the respondents 3 & 4 were later on added as additional accused 4 & 5 in the original crime for their act of causing disappearance of evidence. Even thereafter, the investigation appeared to have proceeded in a shoddy manner, leading to serious lapses in taking note of the Device Identification Number and other particulars of the mobile phone of the petitioner, and manipulating the mahazar and property list submitted before the Magistrate in the above regard. When the petitioner complained before the respondents 6 & 7 about the complicity of Mr. Shaji Sugunan who held the office of the fifth respondent at the time of investigation, in the manipulations done in noting correct particulars of the mobile phone which were sent for analysis at FSL, an enquiry was ordered. In the above enquiry report, the Court Staff of the Chief Judicial Magistrate Court, Pathanamthitta, was blamed for the manipulations perpetrated upon the mahazar and property list prepared by the abovesaid Mr. Shaji Sugunan. However, in the enquiry conducted by the learned Chief Judicial Magistrate under Section 34 0 Cr.PC., it was found that the corrections were made in the aforesaid records by the Police Officials before the production of those records before that Court. Shaji Sugunan. However, in the enquiry conducted by the learned Chief Judicial Magistrate under Section 34 0 Cr.PC., it was found that the corrections were made in the aforesaid records by the Police Officials before the production of those records before that Court. However, the further complaint which the petitioner preferred before the learned Chief Judicial Magistrate for investigation about the above manipulations, was dismissed by the learned magistrate on technical grounds. 6. It is to be noted that there had been the involvement of some dubious persons wielding power behind the curtain in the course of investigation into the crime of cheating registered against the respondents 1 & 2. To a certain extent, the above unseen manipulators had succeeded in torpedoing the investigation, paving the way for the actual culprits to escape from the clutches of law. The fact that the persons who are expected to conduct the investigation in a fair and independent manner had fallen prey to the dubious tactics adopted by those culprits playing behind the curtain, is more disturbing. It is also not possible to eschew the fact that the course of investigation into the original crime happened to be the venue for the commission of fresh crimes like causing disappearance of evidence, forgery etc., by the persons associated with the investigation. Taking into account the above peculiar facts and circumstances of this case, I am of the view that this is a fit case where the investigation has to be handed over to the CBI so that all the culprits, including those who scuttled the investigation and those who still remain in exile, could be brought to book. 7. The situations under which a prayer for CBI investigation could be allowed have been dealt with by the Hon’ble Supreme Court in State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [ (2010) 3 SCC 571 ] wherein it has been held as follows: “ 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” 8. Here is a case where the fervent attempts of a woman to secure justice in a case relating to the cheating perpetrated upon her by the offenders who wield influence and power, has been forestalled due to the failure on the part of the State Police to conduct the investigation in an effective and proper manner. The fact that respondents 3 and 4, who initially conducted the investigation in their capacities as the officers of the CBCID, had to be later on arraigned as accused Nos.4 and 5 in the same crime for the commission of offence under Section 201 I.P.C would show that the de facto complainant is fully justified in seeking investigation by another agency. Furthermore, it has to be stated that even in the investigation later on conducted under the supervision of a Superintendent of Police (Respondent No.5), there had been manipulations made in vital documents which compelled the de facto complainant to approach the State Police Chief as well as the Chief Judicial Magistrate Court concerned to ensure that a fair and impartial investigation could be done in the economic offence committed upon her, and also for bringing to book the officers associated with the State Police, who assisted the offenders to escape from the clutches of law. Thus, this is a typical case where the investigation by the CBI has to be ordered, not only to ensure that the de facto complainant is rendered justice, but also to give the message to the society that nobody would be permitted to subvert the administration of criminal justice by resorting to influence upon the officers of the investigating agency who are expected to discharge their duty in a fair and impartial manner. In the result, the Writ Petition and Crl.Revision Petition are disposed of as follows: (i) The investigation in Crime No.10/CR/EOW-1/KLM/15 of the CBCID, EOW-1 (Crime No.651/2014 of Pathanamthitta Police Station) is ordered to be handed over to the Central Bureau of Investigation represented by its Director (10 th respondent). (ii) The Central Bureau of Investigation represented by its Director (10 th respondent) shall pass orders forthwith assigning the investigation in the aforesaid crime with a suitable officer. (iii) The officer of the CBI so entrusted with the investigation, shall look into the incidents of disappearance of cheque leaves and the manipulations in the relevant records pertaining to the mobile phone particulars of the victim, which happened during the course of investigation by the previous investigating agency, and register separate crimes on those matters, if found necessary. (iv) The State Police Chief (7 th respondent) shall take immediate steps for the transmission of all the relevant records pertaining to the investigation so far done by the State Police to the officer of the Central Bureau of Investigation entrusted with the charge of investigation.