The Kerala High Court dismissed the petition of a legal officer of the company seeking the quashing of the FIR against him registered for offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and Sections 409, 420 and 120B of the Indian Penal Code.
The petitioner is the first accused in the case registered by the Vigilance and Anti-Corruption Bureau (VACB), Palakkad.
According to the FIR, there are four accused in the case. The first accused (petitioner) was the Legal Officer and the second accused was the Managing Director of the company. The third accused was the Managing Director and the fourth accused was the Executive Director of the another company .
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 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 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.
T.A. Shaji, the 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. Counsel further submitted 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.
Counsel defended that the petitioner was exonerated from all charges in the departmental inquiry conducted against him by the company. Senior counsel further contended that, even if the entire allegations against the petitioner in the FIR 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.
On the other hand , Public Prosecutor has submitted that, after completing the investigation, the VACB has submitted final report in the case in the competent court and therefore, the Court may not consider quashing of the F.I.R.
The Single Judge Bench of Justice R.Narayana Pishardi , observed that 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”,
-the High Court orders while dismissing the Petition.