T.P.SENKUMAR IPS(RTD) Vs. VIGILANCE

JUDGEMENT

(1.) The petitioner was an IPS officer. In 2009-2011 he served as Managing Director of Kerala Transport Development Finance Corporation. In 2010 he sanctioned two loans of Rs.10 crores each to one Salim, which was beyond his financial powers. By abusing his official position as a public servant he obtained for the borrower pecuniary advantage. In 2016 he submitted an application for half pay leave. Later, he filed an application to convert it to commuted leave on medical grounds. He made the claim on the strength of false medical certificates and other false documents obtained from one Dr.V.K.Ajith Kumar, Professor of Ayurveda Medical College, Thiruvananthapuram. These are the allegations the 4th respondent has made in his Ext P9 complaint filed in the Court of Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram. The learned Special Judge by Ext P12 order directed the police officer concerned to conduct a quick verification and file a report. In this Original Petition the prayer is to quash Ext P9 complaint mainly on the following grounds. An enquiry was already conducted into the allegation relating to the sanctioning of the loans by the petitioner and it has been found that he has not committed any offence under the Prevention of Corruption Act. The allegation pertaining to the production of documents in support of the application to convert the half pay leave into commuted leave is outside the purview of the Prevention of Corruption Act. The complaint is vexatious. It is submitted that the petitioner's name has been recommended for the post of Member of the Kerala Administrative Tribunal and the complaint has been filed in an attempt to deny him the post. He would say that Ext P9 complaint filed by 4th respondent is a Government sponsored one.

(2.) Heard the learned counsel for the petitioner and the 4th respondent and the learned Special Government Pleader.

(3.) At the outset it was submitted by the learned counsel for the 4th respondent and the Special Government Pleader that the prayer to quash the complaint cannot be allowed because the police have not registered an FIR, nor the court has taken cognizance of the offence. In other words, they maintain that this petition is premature. Reliance is placed on the decisions of the Punjab and Haryana High Court in Rishi Pal v. State of Haryana and another (1997 Crl.L.J.1438) and of the Supreme Court in HDFC Securities Limited and others v. State of Maharashtra and another (2017)1 SCC 640. In HDFC Securities Limited case the Supreme Court approved the view taken by the High Court that the direction given by the Magistrate to the Police under section 156(3) Cr.P.C to conduct an investigation and submit a report gave no right to the accused to file a petition to quash the FIR. The Supreme Court held that the order passed under Section 156(3) Cr.P.C could not be said to have caused an injury of irreparable nature. In Rishipal's case the Punjab and Haryana High Court took the view that before cognizance of the offence is taken by the court the accused has no cause of action to approach the court.