Prakash Joseph vs State Of Kerala And Ors

The petitioner is the first accused in the case registered as V.C.No.13/16/PKD by the Vigilance and Anti-Corruption Bureau (VACB), Palakkad.

As per the first information report (Annexure-A), there are four accused in the case. The first accused was the Legal Officer and the second

accused was the Managing Director of the company 'Malabar Cements Limited'. The third accused was the Managing Director and the fourth

accused was the Executive Director of the company 'ARK Wood and Metals Private Limited'.

The case is registered against the accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of

Corruption Act, 1988 (for short 'the Act') and Sections 409, 420 and 120B I.P.C.

The material allegations against the accused, which are contained in Annexure-A F.I.R, are as follows: The first and the second accused had

entered into a conspiracy with the third and the fourth accused and pursuant to such conspiracy, the first and the second accused acted against the

interest of the company Malabar Cements Limited (hereinafter referred to as 'the company'). The company had entered into an agreement on

18.11.2004 with the company of the third and the fourth accused for supply of fly ash for a period of nine years. As per Clause 19 of the agreement, it

was provided that any dispute arising out of the contract shall be within the jurisdiction of the courts of Tuticorin, from where the supplies are

effected. The first accused advised the company to institute suit against the company of the third and the fourth accused in the Munsiff's Court,

Palakkad against invocation of bank guarantee by the third accused, on the ground that the bank was located in Palakkad. Pursuant to the conspiracy,

the first accused instituted the suit O.S.No.555/2008 in the Munsiff's Court, Palakkad only on 22.09.2008. The Munsiff's Court, Palakkad returned the

plaint with a direction to present it before the court concerned having jurisdiction to entertain the dispute. After return of the plaint by the Munsiff's

Court, Palakkad, the first accused misled the company and filed an appeal before the District Court, Palakkad against the order of the Munsiff's Court,

knowing fully well that there was no scope for an appeal. The said appeal was dismissed. Subsequently, the first accused misled the company and the

Managing Director of the company filed a petition before the Banking Ombudsman against the Canara Bank, Palakkad and it was dismissed on

03.03.2019. Thus, the first accused had wasted precious time and failed to take effective steps to file suit against the company of the third and the

fourth accused in the proper court and as a result, the bank guarantee of fifty lakhs rupees was invoked by the third accused causing loss to the

company. The first and the second accused committed grave criminal misconduct by knowingly delaying the filing of the suit before the court at

Tuticorin and the suit became time barred. Thus, the first and the second accused aided the company of the third and the fourth accused to invoke the

bank guarantee, causing loss of fifty lakhs rupees and interest thereon to the company.

The first accused has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-A

F.I.R in the case.

Heard learned senior counsel who appeared for the petitioner and the learned Public Prosecutor and also the learned counsel for the second

respondent, who has got himself impleaded in the case.

Learned senior counsel who appeared for the petitioner submitted that it was not the duty of the petitioner to advise the company regarding the

forum for filing a civil suit. The duty of the petitioner was only to get the opinion of the lawyers engaged by the company and report it to the

management and act upon the instructions of the management. Learned counsel would submit that it was not for the petitioner to take a decision as to

whether any case had to be filed or not. The court in which a case has to be filed had to be decided by the management and the lawyers engaged by

the company. Learned senior counsel would submit that the petitioner was exonerated from all charges in the departmental enquiry conducted against

him by the company. Learned senior counsel further contended that, even if the entire allegations against the petitioner in the F.I.R are accepted as

true, the offences alleged against him would not be attracted and that the present case is a classical example of the misuse of the provisions of the

Prevention of Corruption Act.

Learned Public Prosecutor has submitted that, after completing the investigation, the VACB has submitted final report in the case in the competent

court and therefore, this Court may not consider quashing of the F.I.R.

The crux of the allegations against the petitioner is that, as a Legal Officer of the company, he gave wrong advice to the management of the

company to institute the suit against invoking of bank guarantee of fifty lakhs rupees by the company of the third and the fourth accused and the suit

was instituted not in the proper court having jurisdiction. It is further alleged that the petitioner advised the company to file an appeal against the order

of the Munsiff's Court, Palakkad returning the plaint and thus wasted time and that he did not file the suit in the Court at Tuticorin which had

jurisdiction over the dispute, thereby causing loss of fifty lakhs rupees to the company. There is considerable force in the contention of the learned

senior counsel for the petitioner that the aforesaid allegations, without anything more, do not attract the ingredients of the offences under Sections

13(1)(c) and 13(1)(d) of the Act and under Sections 409 and 420 I.P.C.

However, the VACB has now completed the investigation of the case and filed final report in the competent court. It is not known whether the

investigating agency has been able to collect any evidence or material against the petitioner to connect him with the offences alleged in the F.I.R.

Without knowing the nature of the evidence and the materials collected by the investigating agency, if any, against the petitioner and without

ascertaining the allegations in the final report filed in the competent court and without considering the documents and the other materials forwarded by

the VACB to the competent court along with the final report, it will not be proper for this Court now to quash the F.I.R, at a stage after completing the

investigation of the case.

When the investigating officer has spent considerable time to collect the evidence and to file charge-sheet before the competent court, further

action cannot be short-circuited by quashing the first information report itself by invoking the power of this Court under Section 482 of the Code. The

accused has to resort to appropriate remedy against the charge-sheet filed against him.

In the aforesaid circumstances, I find that the prayer for quashing Annexure-A F.I.R cannot be allowed. The petition is liable to be dismissed.

Consequently, the petition is dismissed. The petitioner is at liberty to challenge the final report filed in the case, if he still figures as an accused in it.

All pending interlocutory applications are closed.