Madras High Court
I.Sam Titus Mani vs The State Of Tamil Nadu on 29 August, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 29/08/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.17691 of 2019
and
Crl.MP(MD)Nos.10421 and 1314 of 2021
1.I.Sam Titus Mani
2.J.Suresh Kumar : Petitioners/A3 and A4
Vs.
1.The State of Tamil Nadu
Rep. by its Inspector of Police,
Commercial Crime Investigation Wing (CCIW)
Nagercoil-629 001,
Kanyakumari District.
2.K.Balasubramanian
Deputy Registrar of Co-operative Societies,
Palace Road, Thuckalay,
Kanyakumari District. :Respondent/Complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to the case in Crime No.2 of
2019 on the file of the 1st respondent and quash the same
in respect of the petitioners are concerned.
For Petitioners : Mr.Isaac Mohanlal
Senior counsel
for M/s.Isaac Chambers
For Respondents : Mr.SS.Madhavan
Government Advocate
(Criminal side)
https://www.mhc.tn.gov.in/judis
2
O R D E R
This criminal original petition is filed seeking quashment of the case in Crime No.2 of 2019 on the file of the 1st respondent.
2.The case of the prosecution in brief:-
During the course of enquiry under section 81 of the Tamil Nadu Cooperative Societies Act, 1983, with regard to the irregularities, that have been committed in KV90 Karungal Primary Agricultural Co-operative Credit Society Limited, the following 6 financial irregularities have been found out:-
(i).The first is with regard to the misappropriation of Rs.6,10,550/- with regard to the construction of building through the Puliyoorsalai Labour Cooperative Society and the building was constructed beyond the sanctioned fund of Rs.36,75,450/-;
(ii)The second irregularity is that the document has been created as if advances were paid to the contractor and cashier in-charge on various dates;
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(iii)The third irregularity is with regard to the misappropriation of Rs.34,30,495/- and accounts and receipts were created as if the building was constructed as noted above;
(iv)The fourth irregularity is with reference to Rs.2,68,100/- with regard to the urgent work as it has done by engaging the outsiders;
(v)The fifth irregularity is Rs.1,39,600/- as if it has incurred with regard to the demolition of old building and loan receipts were created; and
(vi)The sixth irregularity is with regard to Rs.3,63,000/- in respect to the carpentry work by creating various receipts.
3.It further revealed that as per the enquiry report, Tmt.Thangam and Tmt.Raj jointly, with an common intention, breached the trust, misappropriated Rs. 7,31,745/-, E.Sam Titus Mani and J.Suresh Kumar have abetted the creation of false records, misappropriation and criminal breach of trust, etc. https://www.mhc.tn.gov.in/judis 4
4.After completing the formalities of investigation, final report has been filed charging the petitioners to the effect that they are liable to be punished under section 109 r/w sections 408, 467, 468 and 477-A IPC.
5.Seeking quashment of the same, this petition has been filed mainly on the ground that even though the entire administration vested with the concerned Society Secretary, these petitioners are not vested with any right or power to deal with the financial administration of the Society. So on this ground, this petition came to be filed.
6.Heard both sides.
7.During the course of hearing, it was brought to the notice of this court that final report has already been filed before the concerned court. But however, it was noticed that even at the first inception, stay of the filing of the final report has been granted. But however, due to some mistake on the part of the Investigating Officer, in noting down the case number, now final report has been filed and summon has been issued to the petitioners.
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8.On pointing out this mistake, this court has directed that summons be kept in abeyance and parties were directed to advance their argument on the basis of the available records without minding and take care of the final report, that has been been filed.
9.Now the learned Senior counsel appearing for the petitioners has taken this court thorough various sequence of events to the effect that only at the instance of A3, on finding the irregularities committed by A1 and A2, proceedings were initiated, over which, action has been taken and they have been suspended and later, they have been removed from service.
10.According to the learned Senior counsel appearing for the petitioners, if really the petitioners intended to abet the commission of the above said offence of misappropriation, criminal breach of trust, etc., they would not have taken action against A1 and A2.
11.The next contention is that as mentioned above, no financial power has been given or conferred to the petitioners to deal with the above said administration of https://www.mhc.tn.gov.in/judis 6 finance and as such, they cannot be fastened with any liability.
12.Per contra, it is contention on the part of the respondent that even as per the resolution that has been passed by the Society in the meeting held on 20/05/2013, by passing the Resolution No.2, the President as well as the Writer were given authorisation to operate the account jointly. That Resolution was also passed. Similarly, in the meeting that was held, on 01/06/2013 with reference to sanctioning of loan, etc., the President and the Cashier were empowered to issue cheques and receipts.
13.By pointing out these resolutions, it has been contended on the side of the respondent to the effect that since power has been given to the first petitioner as well as to the Cashier to deal about the financial administration and the first petitioner and the second petitioner knowingly abetted, instigated the misappropriation of funds and creation of false records and simply because, departmental action has been initiated at the instance of the first respondent, that cannot be absolved of criminal libaility. https://www.mhc.tn.gov.in/judis 7
14.A reading of the Resolution clearly shows that financial power has also given to the first petitioner. So he cannot simply say that there was no occasion for him to deal with the financial issue, so his contention is not at all correct on record.
15.Similarly, the contention on the part of the petitioners to the effect that the entire administrations vested with the Secretary as well as the Cashier. The entire construction of the building was undertaken only by the Secretary. But even as per the investigation, it was found that a Committee has been constituted comprising the petitioners to supervise and oversee the construction activities, which they did not properly carried out.
16.So the question, which arises for consideration is that whether this conduct on the part of the petitioners in failing to supervise the construction of building as well as the amount that has been incurred will cast any criminal liability upon them. https://www.mhc.tn.gov.in/judis 8
17.As mentioned earlier, the financial management paper has also been issued to the first petitioner and to show a sample, the learned Government Advocate (Criminal side) has also produced the cheque, that was issued, on 31/01/2017, which was signed by the President and jointly signed by the Secretary, which shows that the above said Resolution as pointed out above has been given effect to. So when the financial power has also been given to the first petitioner, the contention that without his knowledge or without his connivance, the above said irregularities have been committed by the co-accused cannot be taken to be correct on its face value now.
18.The defence that has been raised by the petitioners has to be found out only during the course of trial. So when huge financial irregularities have been committed and the involvement of these petitioners has also been prima facie found out during the course of enquiry, the contention that they cannot be proceeded criminally with regard to the affairs of the Society cannot be accepted.
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19.The contention that only the persons, who are the employees of the Society can be proceeded under section 87 of the Act is also under challenge in CMA Nos.14, 29 and 31/2018. So this court, cannot go into the correctness of the proceedings initiated under section 87 of the Tamil Nadu Cooperatives Act against the petitioners, sitting under 482 Cr.P.C proceedings.
20.So the contention on the part of the petitioners that the proceedings itself is void and illegal under section 87 of the Tamil Nadu Cooperatives Societies Act cannot also be accepted by this court at this stage. It is a matter for enquiry by the competent court, before which the above said matter is pending. This court cannot express any view on that.
21.As stated above, the abetment of misappropriation and fabrication of false records has been alleged against the petitioners and prima facie materials have been collected during the course of investigation. So, the trial ought to have been undertaken to its logical conclusion. Absolutely, I find no merit in this petition. https://www.mhc.tn.gov.in/judis 10
22.The ingredients, according to the petitioners, cannot be attracted, they would rely upon the judgment of the Hon'ble Supreme Court in the case of Somasundaram alias Somu Vs. State represented by the Deputy Commissioner of Police [(2020)7 SCC 722] for the purpose of argument that even as per the allegations mentioned in the final report or in the FIR, no material has been collected to implicate the petitioners under section 109 IPC. But from the facts narrated above, the petition is liable to be dismissed and accordingly, it is dismissed. But however, considering the position of the petitioners in the society, their personal appearance is dispensed with before the concerned trial court with conditions.
23.In the result, this Criminal Original Petition is dismissed. But however, considering the position of the petitioners in the society, their personal appearance is dispensed with on condition that within 15 days from the date of receipt of a copy of this order, the petitioners must appear before the trial court and file an undertaking affidavit that they will appear as and when required by the court, the attested photograph must be attached in the affidavit and they must ensure that they https://www.mhc.tn.gov.in/judis 11 are properly represented by an Advocate. Consequently, connected Miscellaneous Petitions are closed.
29/08/2022 Index:Yes/No Internet:Yes/No er G.ILANGOVAN, J https://www.mhc.tn.gov.in/judis 12 er Crl.OP(MD)No.17691 of 2019 29.08.2022 https://www.mhc.tn.gov.in/judis