Madras High Court
S.Renganathan vs State By The Inspector Of Police on 26 August, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.Nos.7110 & 7115 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.08.2022
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.Nos.7110 & 7115 of 2021 and
Crl.MP.Nos.4726, 4727, 4732 & 4733 of 2021
Crl.OP.No.7110 of 2021
S.Renganathan ... Petitioner/A1
Vs
1.State by The Inspector of Police,
CCIW CID, Cuddalore,
Cuddalore District
(cr.No.1 of 2019)
2.Vengadasalapathi ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the entire records concerned in CC.No.118 of 2020 on the
file of the Judicial Magistrate-I, Cuddalore, Cuddalore District and quash
the same insofar as the petitioner is concerned.
For Petitioner : Mr.C.Prakasam
For Respondents
For R1 : Mr.A.Gopinath,
Government Advocate(crl.side)
Crl.OP.No.7115 of 2021
Page 1 of 12
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.7110 & 7115 of 2021
S.Renganathan ... Petitioner/A1
Vs
1.State by The Inspector of Police,
CCIW CID, Cuddalore,
Cuddalore District
(cr.No.1 of 2019)
2.The Deputy Registrar of
Cooperative Societies (I/C),
Chidambaram Circle, Chidambaram,
Cuddalore District ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the entire records concerned in CC.No.117 of 2020 on the
file of the Judicial Magistrate-I, Cuddalore, Cuddalore District and quash
the same insofar as the petitioner is concerned.
For Petitioner : Mr.C.Prakasam
For Respondents
For R1 : Mr.A.Gopinath,
Government Advocate(crl.side)
COMMON ORDER
The criminal original petitions have been filed to quash the proceedings in CC.Nos.118 & 117 of 2020 on the file of the Judicial Magistrate-I, Cuddalore, Cuddalore District, thereby taken cognizance for Page 2 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 the offences under Sections 120(b), 408, 468, 471, 477(A) IPC r/w 109 of IPC in Crime No.1 of 2019, as against the petitioners.
2. Heard, Mr.C.Prakasam, the learned counsel for the petitioner and Mr.A.Gopinath, learned Government Advocate(crl.side) appearing for the first respondent.
3. It is seen that the petitioner in both the petitions are the same and he already filed CRL.O.P.Nos.499, 507, 550, 552, 554, 557 to 560, 562 & 564 of 2020 in similar circumstances and this Court by order dated 18.09.2020 quashed the entire proceedings in C.C.Nos.3, 10 ,6 ,12 ,7 ,13 ,4, 9, 14, 8, 11 of 2019, respectively, on the file of the learned Judicial Magistrate-I, Cuddalore by observing as follows:
“7. After registration of FIR, the first respondent completed the investigation and filed final reports and the same have been taken cognizance and pending for trial. The only ground raised by the learned counsel appearing for the petitioner before this Court is that, once the surcharge proceeding initiated Page 3 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 by the second respondent is set aside by the Cooperative Tribunal/District Court, Cuddalore, the criminal proceedings cannot be proceeded further as against the petitioner. In this regard, he relied upon the order passed by this Court in the similar issue in Crl.O.P.No.13330 of 2017 dated 05.11.2019, in the case of P.Parimaladevan Vs. State by The Inspector of Police, which reads as follows :-
"5. In the case of T.Elengo vs. State represented by the Inspector of Police, Commercial Crime Investigation Wing- CID, Cuddalore and another [Crl.O.P.Nos.1734 to 1737 and 19846 of 2017, dated 15.11.2017], this Court has held that an employee in a Supervisory capacity cannot be held responsible for criminal action. Relevant portion of the order reads as follows: '7.The main ground on which the petitioner is implicated is that he had not properly supervised and administered the entire collection and therefore, he is liable for the criminal offences. It is not in dispute that the amounts alleged to have been misappropriated were collected from the depositors by the first accused and the same was remitted to the society even before the FIR was filed. It is further not in dispute that the period of misappropriation as per the investigation is between 1998 and 2008, during which period the petitioner herein was in-charge as a Supervisor of the society between 10.10.2002 and 31.10.2004. Even during the relevant period, the petitioner was also working as Page 4 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 Special Officer of 8 societies and was the supervising Cooperative Sub Registrar of 7 other societies. Insofar as the Nevyali Co- operaitve HousingSociety is concernd, the petitioner was employed as a Supervisor during the relevant period and deputed as in-charge of the Society as additional charge. On a perusal of the FIR and charge sheet, it is seen that the basic ingredients for the alleged offences are conspicuously absent. Apart from that I am unable to comprehend as to how any loss could have occurred to the Society, in view of the fact ath the first accused had remitted the entire amount to the society even before the FIR came to be registered. At the most, the petitioner can be implicated for negligence and as such, it cannot be said that the petitioner had conspired for the purpose of misappropriating the money or that he had the mens-rea to commit any of the other offences.
8......
9.The same proposition has beentaken by another judgment in G.Selvakumar v. State through Inspector of Police, C.C.I.W.CID, Tirunelveli reported in 2011 (2) MLJ (Crl.) 608. Following is the extract of the said proposition:- 7.It is a settled proportion of law that to constitute an offence, two basic elements are required, 1.'actus reus' and 2.'mens rea'. In the aforesaid decision of the Hon'ble Supreme Court, it is made clear that misbehaviour or misconduct leads to disciplinary proceedings, which would not be sufficient to be construed as guilty mind or 'mens rea' to initiate a criminal proceeding. It is an admitted fact that the Page 5 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 petitioner herein was working in a supervising capacity as Field Manager of Central Cooperative Bank, hence, in the absence of conspiracy or any factor relating to conspiracy between the petitioner and the accused A1 to A3, who subsequently, paid the amount, it cannot be decided that there were mens rea to initiate criminal proceeding against the petitioner/A8, apart from the findings of the departmental proceeding.
10.In the light of the aforesaid judgments and by correlating the case of the second respondent that there was lapses on the part of the petitioner in his capacity as a supervisor, I am constrained to hold that there could be no conspiracy between the petitioner and the other accused or mens-rea to commit the offences.'
6. Likewise, this Court, in a batch of cases, in the case of Anbalagan vs. State represented by the Inspector of Police, C.C.I.W., CID., Thiruchirappalli and another, [Crl.O.P.(MD)Nos.20309 to 20320 of 2016 and 20309 to 20320 of 2016, dated 20.07.2018] held so in the following manner: '12. Clause 8 of the Tamil Nadu Cooperative Manual deals with the prosecution against the Departmental Officers which reads thus: Prosecution against the Departmental Officers:- ''Departmental Officers are working on foreign service in Co- operative organisation as Chief Executive Officers or otherwise and at times in additions to their regular government post, they are also holding additional charge of the post of Special Officers in more than one co-operative society Page 6 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 and functioning as such. They are holding supervisory posts also over such institution. The Act or the Bylaw of the society do not differentiate a regular or additional charge Chief Executive Officer / Special Officer and both are the same in the eyes of law. These officers either in a regular capacity and more so in the additional capacity or in a supervisory capacity may not have the chance to scruitinise each and every transactions of the society. They would have failed to check and scruitinise the accounts and or excercise effective control over the subordinate staff resulting in the criminal irregularities, frauds and offences under IPC committed by the staff. Failure of such nature ie., failure to discharge their duties properly or negligence, or omissions, unless the inquiry, inspection or investigation officer finds it prima facie, that such officers with malafide criminal intention committed criminal breach of trust and or criminal misappropriation and or aided and abetted such criminal offences by the subordinate staff, will not fasten criminal liability on such officers. On the other hand, the failure of this nature, will be failure to discharge their duties properly or negligence and this may be dealt with through disciplinary proceedings. Hence the departmental officers who are not directly involved in the frauds or misappropriations need not be included as deliquents, in a routine manner, in the inquiry reports or complaints filed with the police.” From the aforesaid provision, it is clear that if the officers who have been posted to supervise the societies failed to discharge their duty properly such officers will not fasten criminal Page 7 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 liability unless prima facie shows that such officers with malafide criminal intention committed criminal breach of trust or criminal misappropriation or aided and abetted such criminal offences by the supporting staff.
13. In the circular issued by the Registrar of Co-operative Societies, Chennai in R.C.No.228696/19/CP1 dated 11.12.1991 also, the same thing reiterated. For proper appreciation, the relevant portions of the said letter are extracted here under: “3. Taking criminal action against the departmental officers holding chief executive or administrative and other supervisory posts in the Cooperatives who are involved vicariously has also been examined. The departmental officers, working have no chance to scrutinize each and every transactions of the society. Though they may have an overall control, they cannot be held criminally liable, for all the criminal irregularities committed by the staff working under them. Though they fail to check and scrutinize the accounts etc., or exercise effective control over subordinate staff such failure may not deserve criminal action. On the other hand, the failure of this nature, will be failure to discharge their duties properly or negligence and this may be dealt with through disciplinary proceedings. Hence it is informed that the departmental officers who are not directly involved in the frauds or misappropriations need not be included as delinquents, in a routine manner, in the inquiry reports or complaints filed with the police."
14. In S.Gunasekaran Vs. State represented by the Inspector of Police (supra), this Court has Page 8 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 quashed the Criminal proceedings against the Special Officer stating that the Criminal prosecution cannot be initiated for lapse / negligence in supervising work, which is extracted below:- “8. The learned Government Advocate (Crl.Side) would submit that as per a resolution passed in the society the petitioner was responsible for the day-to-day affairs of the society and to supervise the records and the transactions of the society. The learned Government Advocate (Crl.side) would further submit that as per the materials available on record it is clear that he has failed to discharge his duties properly and the said acts of the accused would amount to offences as enumerated in the charge sheet.
9. In my considered opinion, such a negligence may create only a civil liability and there cannot be any vicarious liability in the criminal law. Even to initiate proceedings against the petitioner under Section 87 of the Tamil Nadu Co-operative Societies Act, the sine quo non is wilful negligence resulting in loss to the society and not a mere negligence. When that be so, a mere negligence to look into the records properly, in my considered opinion, would not satisfy any of the ingredients of the offences alleged against him.”
15..........
16. From the aforesaid decisions, it is clear that negligence may create only the civil liability and there cannot be any vicarious liability in the criminal law. Further, mere negligence to look into the records properly would not satisfy any of the ingredient of the offences alleged Page 9 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 against the petitioner herein.'
7. The aforesaid decisions are self explanatory and the same principle has been reiterated in various other decisions of this Court as well. As such, the over all legal position is that when an employee of the Society is found liable for Supervisory lapse, the same will not constitute any criminal action against him. Likewise, if such an employee has been exonerated in the proceedings under Section 87 of the said Act, it has to necessarily be implied that he had neither misappropriated nor fraudulently retained the money or other property, nor is guilty of breach of trust or willful negligence. The offences for which the petitioner has now been charged with, are in effect, the very same overt acts for which he has been exonerated in the enquiry under Section 87 of the said Act."
In view of the orders passed by the Tribunal in C.M.A.(CS).No.15 of 2015 dated 28.02.2019 and also considering the aforesaid decision, this Court is of the considered opinion that the petitioner is also extended for the same benefit.
8. Accordingly, all the Criminal Original Petitions are allowed and the proceedings in C.C.Nos.3, 10, 6, 12, 7, 13, 4, 9, 14, 8, 11 of 2019, respectively, on the file of the learned Judicial Magistrate-I, Cuddalore, are hereby quashed.” Page 10 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021
4. Accordingly, this Court is inclined to quash the impugned proceedings. As such, the entire proceedings in CC.Nos.118 & 117 of 2020 on the file of the Judicial Magistrate-I, Cuddalore, Cuddalore District, thereby taken cognizance for the offences under Sections 120(b), 408, 468, 471, 477(A) IPC r/w 109 of IPC in Crime No.1 of 2019 is quashed as against the petitioner and both the criminal original petitions are allowed.
Consequently, connected miscellaneous petitions are closed.
26.08.2022 Internet:Yes Index:Yes/no lok Page 11 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.7110 & 7115 of 2021 G.K.ILANTHIRAIYAN. J, lok To
1.The learned Judicial Magistrate-I, Cuddalore, Cuddalore District
2.The Inspector of Police, CCIW CID, Cuddalore, Cuddalore District
3.The Public Prosecutor, Madras High Court, Chennai.
Crl.O.P.Nos.7110 & 7115 of 2021 26.08.2022 Page 12 of 12 https://www.mhc.tn.gov.in/judis