Kerala High Court
C.H.Moosa vs Central Bureau Of Investigation on 1 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
CRL.REV.PET NO. 548 OF 2025
AGAINST THE ORDER DATED 07.04.2025 IN
CMP.59/2025 IN CC NO.23 OF 2016 OF SPECIAL C SPE/CBI-
I&3 ADDITIONAL DISTRICT COURT, ERNAKULAM
REVISION PETITIONER/ACCUSED NO.8:
C.H.MOOSA, AGED 50 YEARS,
S/O AHMED, CHANGAROTH HOUSE,
CHERAPURAM PO, KAKKATTIL VIA,
VADAKARA, PIN - 673507.
BY ADVS.
SRI.C.S.MANU
SRI.DILU JOSEPH
SRI.C.A.ANUPAMAN
SHRI.T.B.SIVAPRASAD
SMT.NEETHU.K.SHAJI
SRI.C.Y.VIJAY KUMAR
SMT.MANJU E.R.
SHRI.ALINT JOSEPH
SHRI.PAUL JOSE
SMT.DAINY DAVIS
SMT.RILNA RADHAKRISHNAN
SHRI.MAHESH KUMAR K.
RESPONDENT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION
SCB, THIRUVANATHAPURAM, PIN - 682030.
SPL. PUBLIC PROSECUTOR SRI SREELAL M.WARRIAR
FOR CBI
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 01.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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Crl.R.P.No.548/2025 2
"C.R"
A. BADHARUDEEN, J.
================================
Crl.R.P.No.548 of 2025
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Dated this the 1st day of July, 2025
ORDER
Accused No.8 in C.C.No.23/2016 on the files of Special Judge,
CBI, Ernakulam, has filed this Criminal Revision Petition challenging
order in CMP.No.59/2025 dated 07.04.2025 (marked as Annexure-A1)
under Sections 438 r/w 442 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (`BNSS’ for short), whereby the plea of discharge raised by the
petitioner was dismissed by the trial court.
2. Heard the learned counsel for the revision
petitioner/accused No.8 and the learned Special Public Prosecutor
(Standing Counsel) for the Central Bureau of Investigation (`CBI’ for
short) in detail. Perused the records and the order impugned.
3. In this matter, prosecution alleges commission of
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Crl.R.P.No.548/2025 3
offences punishable under Sections 11, 12, 13(2) read with Section 13(1)
(a) and 13(1)(d) and Section 14 of the Prevention of Corruption Act, 1988
(`PC Act‘ for short) as well as under Section 24 of the Immigration Act.
4. In a nut shell, the allegation in the common charge
shown as charge No.1 in the charge sheet is that Accused No 1, employed
in Kerala Police as Civil Police Officer, was working at Cochin
International Airport immigration wing from 3.6.2003 to 15.12.2003 and
13.12.2007 to 5.7.2011, sometime during 2005 entered into criminal
conspiracy with accused Nos A3 to A16 and A20 who are travel agents
engaged in the business of servicing of travel documents and other senior
officers functioning as counter officers in the immigration wing such as
A17, A18, A19 and A21 to illegally clear passengers proceeding abroad
without valid travel documents by abusing their official position as public
servants employed as Immigration counter Officers and obtained
pecuniary advantage for themselves. In pursuance of the said conspiracy,
A3 to A17 and A20 forwarded their passengers without valid travel
documents to A1, AP Ajeeb and he with the undue influence exerted on
senior officers on counter duty abusing their official position cleared the
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passengers to travel abroad without valid travel documents. In furtherance
of the conspiracy A3 to A17 and A20 collected bribes from the passengers
or arranged their own funds and the same were deposited to SB account of
A2 who is the father of Al and the same was withdrawn and distributed to
the officers concerned who cleared the passengers. As per the-common
charge, the petitioner was alleged to have remitted an amount of Rs.
1,45,000- during the period from 18.7.06 to 7.5.2011 to the account of A2.
5. Challenging Annexure-A1 order, the learned counsel for
the petitioner pressed the grounds urged in this Criminal Revision Petition
to contend that the prosecution materials in no way would show that the
petitioner has been running a travel agency and in that capacity he
transferred money in the account of the 2nd accused. The Grounds C to H
urged to assail Annexure-A1 order are relevant. The same read as under:
“C. The trial Court failed to appreciate that there was no
evidence even to raise suspicion of the allegation of conspiracy. Trial
court also failed to appreciate the dictum laid down in the decision
reported in AIR 1972 SC 2598 that to attract the offence of 120 B IPC
there should be a specific allegation of mens rea and actus reus.
Criminal conspiracy has to be proved like any other offence. 2009(2)
KLD 513(SC). In the instant charge sheet, the prosecution recorded the
statement of 151 witnesses. In none of these statements there is even a
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Crl.R.P.No.548/2025 5whisper about conspiracy or meeting of minds.
D. Trial court did not appreciate the fact that travel agents
who facilitated travel of ineligible passengers to abroad function from
different places like Trivandrum, Ernakulam, Pathanamthitta, Calicut
etc. Each individual travel agent allegedly sent passengers with the
assistance of Al. Since their individual interests are different there could
be separate meetings of minds for achieving their own objectives if at all
there was conspiracy, as held in Ramlal Narang Vs State (NCT) AIR
1979 SC 1791. Trial court also failed to appreciate the dictum in
Khersigh Vs State AIR 1988 SC 1883. Here the investigating officer has
inferred that Al has hatched conspiracy only because there was
remittance from various sources.
E. The trial court failed to take note of the point that proof of
demand is a sine qua non for an offence to be established under section
7,13(1)(d) and (ii) of the Act and de hors the proof of demand the offence
under the two sections. The mere receipt of any property or valuable
security would not tantamount to acceptance unless the bribe giver had
made an offer demanding favour from the public servant.
F. Trial court also failed to consider the decision reported in
Neeraj Dutta Vs State, (AIR 2023 SC 330) the constitution bench held
that Proof of demand and acceptance of illegal gratification by a public
servant as a fact in issue by the prosecution is sine qua non in order to
establish the guilt of the accused public servant under section 13(1)(d) (i)
and (ii) of the Act. Only monies were deposited in the account of A2
being a mere acceptance, without anything more would not make an
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Crl.R.P.No.548/2025 6offence under section 7 or 13(1)(d)(i) & (ii) of the Act.
G. The trial court failed to appreciate the fact that Al was only
a Civil Police officer who was on deputation to the Immigration wing of
the CIAL. A police constable (Civil Police Officer) cannot influence any
counter officers in getting any ineligible passenger cleared.
H. The trial court lost sight of the fact that there is no evidence
to link the alleged receipt of money by the public servant, the Civil Police
Officer or any favors shown by the public servant. For the total money
credited to the various accounts of the A2 there is no evidence to show
how many persons have travelled without valid documents or on the
favours shown by the accused persons.”
6. Opposing interference in Annexure-A1 order, the learned
Public Prosecutor would submit that when considering the plea of
discharge, there is no mandate that the prosecution allegations to be
made out, prima facie, satisfactorily and even a substance to have
some doubt as regards to the involvement would be sufficient to
frame charge against the accused.
7. In so far as the essentials to be considered while
considering the petition seeking discharge and while framing charge, the
law is well settled.
8. This Court considered the essentials to be considered
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while considering discharge sought under Section 227 of Cr.P.C and
framing charge under Section 228 of Cr.P.C, in the decisions reported in
[2024 KHC OnLine 586], Sandeep G. v. State of Kerala, this Court set out
the principle as under, following the Apex Court decisions in this regard.
“(i) Matters to be considered at the time of considering
discharge and while framing charge are not aimless etiquette.
Concomitantly the same are not scrupulous exertion. Keeping an
equilibrium in between aimless etiquette and scrupulous exertion, the
trial judge need to merely examine the materials placed by the
prosecution in order to determine whether or not the grounds are
sufficient to proceed against the accused on the basis of police
charge/final report. The trial Judge shall look into the materials
collected by the investigating agency produced before the Court, to see,
prima facie, whether those materials would induce suspicious
circumstances against the accused, so as to frame a charge and such
material would be taken into account for the purposes of framing the
charge. If there is no sufficient ground for proceeding against the
accused necessarily, the accused would be discharged. But if the court is
of the opinion, after such consideration of the materials there are
grounds for presuming that accused has committed the offence/s which
is/are triable, then necessarily charge shall be framed.
(ii) The trial Judge has to apply his judicial mind to the facts of the
case, with reference to the materials produced by the prosecution, as
may be necessary, to determine whether a case has been made out by the
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Crl.R.P.No.548/2025 8
prosecution for trial on the basis of charge/final report.
(iii) Once the accused is able to demonstrate from the materials
form part of the charge/final report at the stage of framing the charge
which might drastically affect the very sustainability of the case, it is
unfair to suggest that such material should not be considered or ignored
by the court at this stage. The main intention of granting a chance to the
accused of making submissions as envisaged under Section 227 of the
Cr.P.C. is to assist the court to determine whether it is required to
proceed to conduct the trial.
(iv) At the stage of considering an application for
discharge the court must proceed on an assumption that the materials
which have been brought on record by the prosecution are true and
evaluate said materials, in order to determine whether the facts emerging
from the materials taken on its face value, disclose the existence of the
ingredients necessary of the offence/s alleged.
(v) The defence of the accused not to be looked into at
the stage when the accused seeks discharge. The expression “the record
of the case” used in Section 227 Cr. P.C. is to be understood as the
documents and objects, if any, produced by the prosecution. The Code
does not give any right to the accused to produce any document at the
stage of framing of the charge. The submission of the accused is to be
confined to the material produced by the prosecution.
(vi) The primary consideration at the stage of framing of
charge is the test of existence of a prima-facie case, and at this stage, the
probative value of materials on record shall not be evaluated.
(vii) At the stage of framing of charge, the court has to
form a presumptive opinion to the existence of factual ingredients
constituting the offence alleged and it is not expected to go deep into
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Crl.R.P.No.548/2025 9
probative value of the material on record and to check whether the
material on record would certainly lead to conviction at the conclusion
of trial.
(viii) In assessing this fact, it is not necessary for the
court to enter into the pros and cons of the matter or into a weighing
and balancing of evidence and probabilities which are really the
function of the trial Judge, after the trial. At the stage of Section 227,
the Judge has merely to sift the prosecution materials in order to find
out whether or not there are sufficient grounds to proceed with trial of
the accused.
(ix) Strong suspicion in favour of the accused, cannot
take the place of proof of his guilt at the conclusion of the trial. But at
the time of framing charge, if there is suspicion which leads the Court to
think that there is ground for presuming that the accused has committed
an offence then it is not open to the Court to say that there is no
sufficient ground for proceeding against the accused. In such case also
charge needs to be framed to permit the prosecution to adduce
evidence.
(x) If the evidence which the Prosecutor proposes to
adduce to prove the guilt of the accused even if fully accepted before it
is challenged in cross-examination or rebutted by the defence evidence,
if any, cannot show that the accused committed the offence, then there
will be no sufficient ground for proceeding with the trial.”
9. Coming to Annexure-A1 order, it could be seen that the
trial court discharged accused Nos.12, 16 and 20. Thereafter, the trial court
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Crl.R.P.No.548/2025 10
framed charge against accused Nos.1, 19 and 21 under Section 120B of
IPC as well as under Sections 11, 12, 14, 13(2) r/w Sections 13(1)(a) and
13(1)(d) of the P.C Act. Similarly, charge framed against accused 4 to 11,
13, 14, 15 and 17 under Section 120B of IPC and under Sections 12 and 14
of the P.C Act. In paragraph Nos.56 to 58 of the order, the trial court
addressed the plea of the 8th accused. Paragraph Nos.56 to 58 read as
under:
“56. As per the prosecution case the 8th accused, Mr. C. H.
Moosa is the proprietor of M/s. Riya Tours and Travels, Vadakara
and he has remitted Rs.1,45,000/- to the account of the 2 nd accused
during the period from 18-07-2006 to 07-05-2011. Document No.12
produced along with the final report contains the pay-in slips (5 Nos)
of different dates of Federal Bank, Vadakara branch for remittance of
a total sum of Rs.1,22,000/- to the account of the 2 nd accused. The
documents produced by the prosecution suggests that the 8th accused
had been making remittances to the account of the 2 nd accused.
57. As stated above, the contention of the learned
counsel for the 8th accused is that there is no material to prove the
existence of Riya Travels,Vadakara or the connection of the 8th
accused with it. It is also contended that the prosecution is relying on
the evidence of CW14, Bijoy, Manager of Federal Bank. According to
him, the statement of this witness will show that he joined the bank
after the transactions occurred and he has no direct knowledge. The
counsel also contended that the witness has given statement that an
2025:KER:48394
Crl.R.P.No.548/2025 11amount of Rs 49.000/- was deposited by one Abbas and prosecution
has taken this amount also as a remittance made by the 8 th accused.
According to him, out of the six remittances, the first remittance of
Rs.12,000 to the account of the 2nd accused was made on 18.07.2006
and the first accused was not working CIAL at that time. There is no
dispute to the fact that the first accused joined CIAL in 2003 and
thereafter worked again during 2007 to 2011. It is also argued that
documents D11 and D12 show remittances to the account of Pareeth
and they contain some mobile numbers, However, the investigating
officer has not collected any evidence to prove the existence of a
travel agency and he had any connection with any travel agent.
58. The prosecution has produced the pay-in slips
mentioned in the preceding paragraph to show that the 8 th accused
had been remitting money to the account of the 2nd accused
regularly. The first payment was in the year 2006. The first accused
was officiating as immigration officer in CIAL from 2003 onwards. It
is the specific case of the prosecution that he was the king pin of the
entire transaction. It is alleged that even after his transfer from CIAL,
he was collecting money from the travel agents and the passengers
sponsored by the travel agents were being illegally cleared by
influencing the counter officers on duty by paying illegal gratification.
Whether there is clear evidence to prove the same or not has to be
considered at the time of trial. At this stage, the court has to rely on
the materials placed by the prosecution. The pay-in slips produced by
the prosecution show that money was being remitted by the 8th
accused to the account of the 2nd accused. The 8th accused has no
case that he had any other transaction with the 2nd accused. It is true
that the prosecution has not produced the best evidence to prove that
2025:KER:48394
Crl.R.P.No.548/2025 12the 8th accused was the proprietor of Riya Tours and Travels. But, the
fact that he was remitting money to the account of the father of the
first accused regularly and the passengers sponsored by him were
being illegally cleared by the counter officers is prima facie sufficient to
attract abetment of the offence under the PC Act. Whether the evidence
is sufficient to convict a person after trial is not a question to be
considered at the stage. At this stage, the duty of the court is only to
see whether the prosecution evidence stands unchallenged, it will
warrant a conviction. On going through the materials on record, I am
of the view that there are sufficient materials for the abetment of
commission of the offence under the PC Act.”
10. On perusal of the observations of the trial court in
paragraphs 56 to 58, the trial court found that as per the prosecution case,
the 8th accused Mr.C.H.Moosa, who is the proprietor of M/s.Riya Tours
and Travels, Vadakara, had remitted Rs.1,45,000/- to the account of the 2 nd
accused during the period from 18.07.2006 to 07.05.2011. The trial court
relied on document No.12 produced along with the final report containing
5 pay-in-slips of different dates of Federal Bank, Vadakara, for remittance
of Rs.1,22,000/- by the 8th accused in favour of the 2nd accused. While
addressing the contention raised by the 8th accused, the trial court found
that the contention of CW14 that Rs.49,000/- deposited by one Abbas also
was reckoned with the remittance made by the 8 th accused. In this matter, the
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trial court found that the 8thaccused continuously remitted money in the account
of the 2nd accused, who was the father of the 1st accused, starting from the
year 2006 onwards, while the 1st accused was officiating as Immigration
Officer of CIAL from 2003 onwards. The prosecution allegation against
the 1st accused mainly is that he had received illegal gratification from
various travel agents, including the 8th accused. The trial court mainly
found that the 8th accused did not explain whether he had any other
personal transaction with the 2nd accused. In this case, even though the
learned Standing Counsel for the CBI was directed to point out the
document to show that the 8th accused was the proprietor of M/s.Riya
Tours and Travels, he fairly pointed out that no such materials is collected
during the investigation, since the allegations were pertaining to 2003
onwards. Coming to the allegation, the prosecution case is that as part of
conspiracy hatched between the 1st accused and the other accused, including
the 8th accused, they organised collection of money from travel agents and
passengers especially from those, who hail from weaker sections of the
society, in the pretext of facilitating their emigration clearance. A share of this
money was being paid to public servants for facilitating smooth
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emigration clearance, including the 1 st accused through the 2 nd
accused, his father. As a sequel thereof, unauthorised passengers
travelled to foreign countries without emigration and thereby all the
accused persons obtained illegal money and also caused corresponding
loss to the State Exchequer.
11. It is true that conspiracy could not be proved with the aid
of direct evidence and the same always should have to be decided on the
basis of the circumstances available from the records. It is true that a
private person could not be roped into alleging commission of offence
under the P.C Act without the aid of Section 120B of IPC. Here the
prosecution case is that the accused herein hatched conspiracy and done
overt acts and thereby all the accused obtained illegal gratification and also
thereby corresponding loss to the State Exchequer.
12. As per Annexure-A1 order, the trial court discharged all
the accused for the offence under Section 24 of the Emigration Act.
Therefore, much discussion on the said point is not necessary. The crucial
point to be addressed herein is, whether there are materials to see
involvement of the petitioner also in this crime as part of conspiracy and
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payment of money, collected from various passengers, to the 1st accused
through his father, who is arrayed as the 2 nd accused. The prosecution
materials including the pay-in-slips were relied on by the prosecution to
substantiate the same. Thus from the materials available there are grounds
for presuming that the petitioner has committed the offences alleged
warranting trial. In such a case, the discharge plea at the instance of the
petitioner could not succeed, as rightly found by the trial court, though the
petitioner can take this contention during trial. In view of the same, the
order doesn’t require any interference.
In the result, this Criminal Revision Petition stands dismissed.
The interim order of stay stands vacated.
The Registry is directed to forward a copy of this order to the trial
court for continuing with the trial.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
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Crl.R.P.No.548/2025 16
APPENDIX OF CRL.REV.PET 548/2025
REVISION PETITIONER’S ANNEXURES
Annexure A-1 A TRUE COPY OF THE CRIMINAL MP NO. 59 OF 2025
IN CC NO 23 OF 2016 ON THE FILES OF
HONOURABLE COURT OF SPECIAL JUDGE, CBI/SPE-I
FILED BY THE PETITIONER.