JOSE POTTOKKARAN V. UNION OF INDIA

Crl.MC/6401/2015

AI Insights

The case involves Jose Pottokkaran, the second accused, who is a chartered accountant, in a CBI investigation concerning the alleged gifting of gold coins by him to the first accused, an Assistant Commissioner of Income Tax. The CBI's final report found insufficient evidence to prosecute under the Prevention of Corruption Act, 1988, but recommended disciplinary action to the Institute of Chartered Accountants of India based on misconduct. Pottokkaran challenged this recommendation, arguing it was beyond the CBI's jurisdiction. The High Court dismissed his challenges, affirming that the CBI's role was limited to reporting misconduct to the appropriate statutory body, which would then decide on further actions.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 722365 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 02-06-2016
• Assessment Year: misc
• Laws Referred To: PC Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P CHANDRASEKHARA PILLAI
• Assessee Lawyers: C P UDAYABHANU
• Keywords: CBI investigation; Chartered Accountants; Disciplinary action; Gold Coins; Misconduct
• Section: 11; 12

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938 Crl.MC.No. 6401 of 2015 () --------------------------- (AGAINST THE ORDER/JUDGMENT IN RC 10(A)/2014/CBI/CB/COCHIN OF THE SPECIAL JUDGE 1 FOR CBI CASES ERNAKULAM ) PETITIONER(S)/ACCUSED NO.2: -------------------------- JOSE POTTOKKARAN S/O.LATE ANTONY POTTOKKARAN, BETHEL LANE, MISSION QUARTERS, THRISSUR-680 001. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT(S)/COMPLAINANT: -------------------------- UNION OF INDIA REPRESENTED BY THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, KERALA, KOCHI-17, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20- 05-2016, ALONG WITH CRRP. 619/2016, THE COURT ON 2/6/2016 PASSED THE FOLLOWING: CRL.M.C. NO.6401/2015 Crl.MC.No. 6401 of 2015 () --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE 1- TRUE COPY OF THE FINAL REPORT IN RC 10(A)/ 2014/CBI/ACB/COCHIN. RESPONDENT(S)' EXHIBITS ----------------------- /TRUE COPY/ PS TO JUDGE. SUNIL THOMAS, J. - - - - - - - - - - - - - - - - - - Crl.M.C.No.6401 of 2015 & Crl.R.P.No.619 of 2016 - - - - - - - - - - - - - - - - - - Dated this the 2ndday of June, 2016 O R D E R The petitioner herein is the second accused in R.C.10(A)/ 2014/CBI/ACB/Cochin, investigated by the CBI. The first accused in the above case was the Assistant Commissioner of Income tax and the second accused, a chartered accountant practicing at Thrissur. On a search conducted in the office of the first accused, two gold coins were recovered. According to the CBI, the first accused had disclosed that gold coins were gifted to him by the second accused who was allegedly following two assessment files pending before the first accused. 2. Thereupon, R.C.10(A)/2014 was registered and investigation was taken up. After completion of the investigation, the final report was laid by the CBI holding that the evidence collected by them in the course of investigation was insufficient and even though incriminating circumstances were available against the first and second accused, it was not sufficient and adequate to launch a successful prosecution Crl.M.C.6401/2015 & another 2 against them under Sections 11 and 12 of PC Act, 1988. Hence, it was requested to accept the final report. The court below thereafter, accepted the final report and closed the proceedings. 3. In the final report, there was a statement that “even though evidence is inadequate to prosecute the second accused for committing the offence punishable under section 12 of the PC Act, it is recommended to the Council of Institute of Chartered Accountants of India to remove his name for his misconduct.” The above statement has given raise to the present criminal proceeding and the revision. 4. The above observations in the report was challenged in Crl.M.C.No.6401/2015. While so, aggrieved by the above statement in the final report, the second accused filed Crl.MP.214/2016 to expunge/annul the above recommendation of the investigating officer to the Council of Institute of Chartered Accountants. It was contended that the investigating officer was not competent to recommend to the Council of Institute of Chartered Accounts of India to initiate disciplinary proceedings against the accused. It was contended that a separate machinery was contemplated in the Act to conduct enquiries and for fixing culpability if any. Crl.M.C.6401/2015 & another 3 Hence, it was beyond the jurisdiction of the investigating officer and did not fall within his powers to make such a recommendation. After hearing the both sides, Crl.M.P.No.214/2016 was dismissed by the impugned order dated 23/5/2016. The order in the Crl.M.P.No.214/2016 is challenged in Crl.R.P.No.619/2016. 5. Heard both sides and examined the records, including the statement filed by the CBI. 6. The final report was accepted by the trial court. The grievance of the revision petitioner is that the recommendation made by the investigating officer in the final report filed before the court below caused prejudice to him. It was beyond his jurisdiction to make recommendation to another statutory authority which was vested with the authority to initiate disciplinary action against its members. It was further contended that while the report as such was accepted by the court below and acted upon by the court below, judicial stamp was given to that recommendation, which may give rise to an impression that it had got the sanctity and validity of a judicial order. 7. A close reading of the disputed statement only indicates that the CBI mentioned about a factual aspect that it Crl.M.C.6401/2015 & another 4 was recommending action against the second accused, being a member of the Council of Institute of Chartered Accounts. After investigation, when the final report is filed by the investigating agency, the court below only accepts the report in relation to the offences referred to therein . The purport of the above recommendation appears to be that though evidence sufficient to prosecution the accused was not found out, but certain materials warranting disciplinary action were unearthed and hence were brought to the notice of the statutory body. It was only a communication of factual aspects and it is for the council of Institute of Chartered Accounts, which is a statutory authority governed by its own procedure, to take appropriate action. The report was neither intended to be acted upon as one warranting a order on the judicial side, nor it was sought. No judicial proceedings was proposed to be taken on the above final report. According to the CBI, it was only a recommendation as per the procedure for filing complaint, elaborated under Chapter II of the Chartered Accounts(Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules,2007. 8. In the above circumstances, it is clear that the Crl.M.C.6401/2015 & another 5 apprehension raised in both the proceedings does not merit consideration. It is for the concerned statutory authorities to take any action in accordance with the procedure laid down in the statute. In the light of the above, the Crl.M.C. and revision petition are without any basis and are liable to be dismissed. Accordingly, Crl.M.C. and Revision Petition are dismissed. Sd/- SUNIL THOMAS Judge dpk /true copy/ PS to Judge. Crl.M.C.6401/2015 & another 6 "