Madras High Court
Palanivel vs The State Of Tamil Nadu on 27 August, 2009
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/08/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Crl.O.P.(MD)Nos.8406 to 8409 of 2008 Crl.O.P.(MD)Nos.8509, 8555, 8558, 8559, 8562, 8563, 8565 of 2008 and M.P.(MD)Nos.1,1,1 & 1 of 2008 and M.P.(MD)Nos.1,1,1,1,1,1,1,1,1,1 & 1 of 2009 and M.P.(MD)Nos.2,2,2,2,2,2 & 2 of 2008 Palanivel ... Petitioner in CrlOP.No.8406/08/Accused No. 13 M. Balasubramanian ... Petitioner in CrlOP.No.8407/08/Accused No. 15 T. Parthasarathy ... Petitioner in CrlOP.No.8408/08/Accused No. 13 Ganesan ... Petitioner in CrlOP.No.8409/08/Accused No. 17 Sankaranarayanan ... Petitioner in CrlOP.No.8509/08/Accused No. 16 Sankaranarayanan ... Petitioner in CrlOP.No.8555/08/Accused No. 16 J. Suraliraj ... Petitioner in CrlOP.No.8558/08/Accused No. 15 J. Suraliraj ... Petitioner in CrlOP.No.8559/08/Accused No. 15 A.P. Ayavu ... Petitioner in CrlOP.No.8562/08/Accused No. 14 A.P. Ayyavoo ... Petitioner in CrlOP.No.8563/08/Accused No. 14 T. Parthasarathy ... Petitioner in CrlOP.No.8565/08/Accused No. 14 Vs. The State of Tamil Nadu, Rep.by The Deputy Superintendent of Police, Vigilance and Anti Corruption, Madurai. ... Respondent in all CrlOP Nos. PRAYER IN CRL.O.P.No.8406 of 2008 to 8409 of 2008, 8509, 8555, 8558, 8559, 8562, 8563 and 8565 of 2008 respectively Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records, relating to Special Case No.11 of 2008 to 14 of 2008 respectively, on the file of the Chief Judicial Magistrate/Special Judge, Madurai and quash the same. !For Petitioners ... Mr.Muthumani Doraisami ^For Respondent ... Mr.Siva Ayyappan G.A.(Crl.side) :COMMON ORDER
The petitioner in Crl.O.P.(MD)No.8406 of 2008 is arrayed as accused No.13 in S.C.No.11 of 2008, the petitioner in Crl.O.P.(MD)No.8562 of 2008 is arrayed as accused No.14 in S.C.No.11 of 2008, the petitioner in Crl.O.P.(MD)No.8559 of 2008 is arrayed as accused No.15 in S.C.No.11 of 2008, the petitioner in Crl.O.P.(MD)No.8555 of 2008 is arrayed as accused No.16 in S.C.No.11 of 2008, the petitioner in Crl.O.P.(MD)No.8563 of 2008 is arrayed as accused No.14 in S.C.No.12 of 2008, the petitioner in Crl.O.P.(MD)No.8407 of 2008 is arrayed as accused No.15 in S.C.No.12 of 2008, the petitioner in Crl.O.P.(MD)No.8408 of 2008 is arrayed as accused No.13 in S.C.No.13 of 2008, the petitioner in Crl.O.P.(MD)No.8565 of 2008 is arrayed as accused No.14 in S.C.No.14 of 2008, the petitioner in Crl.O.P.(MD)No.8558 of 2008 is arrayed as accused No.15 in S.C.No.14 of 2008 and the petitioner in Crl.O.P.(MD)No.8509 of 2008 is arrayed as accused No.16 in S.C.No.14 of 2008.
2.All these petitioners, who are Gazetted Rank Government servants worked in various ranks in the Government Departments. A case has been registered in Crime No.1 of 1997 by the respondent, the Vigilance and Anti-Corruption, Madurai on 05.05.1997 based on the complaint given by the District Backward Classes and Minority Welfare Officer, Madurai for the alleged misappropriation of the scholarship fund during the year 1989 - 1990, 1990 - 1991 and 1991 - 1992. The said investigation prolonged for 11 years and a charge-sheet was also filed on 10.06.2008 against the petitioners in Special Cases in S.C.Nos.11 to 14 of 2008 before the learned Chief Judicial Magistrate/Special Judge, Madurai for the alleged offence under Sections 120-B, 167, 467, 468, 471, 409, 420 and 109 I.P.C and Section 13(1)(c) & (d) r/w 13(2) of the Prevention of Corruption Act, 1988 and the same was taken on file which is pending as Special Cases.
3.The brief facts of the case is as follows:
The students, applying for scholarship, should send the application with necessary particulars in a prescribed form through the head of the institution, where they are undergoing typewriting and shorthand courses. The application should be accompanied by the supporting documents such as income certificate and community certificate and copy of the hall ticket for attending the Government Examinations. The scholarship amounts will be granted to the students, who are studying in the recognized or approved school of commerce through the head of the institution. Head of the institution would send, on receipt of applications from the students to the District Backward Classes and Minority Welfare Office for scrutiny and verification. Thereafter, the District Backward Classes and Minority Welfare Officer approve the same. After his approval, the Assistant Accounts Officer/Junior Accounts Officer will approve the bill with the assistance of concerned Assistant dealing with the subject and then crossed cheque will be issued by the Assistant Accounts Officer or Joint Accounts Officer and the cheque will be entered in the relevant register and it would be sent to the concerned institution for disbursement to the students as scholarship.
4.According to the prosecution, between the period of February 1989 and October 1991, the Proprietor of Venus Institution of Commerce, Bodinaickanur, Proprietor of Sri Venkateswara Institute of Commerce, Andipatti, Proprietor of New Institute of Commerce, Bodinaickanur, Proprietor of Lakshmi Institute of Commerce, Bodinaickanur, Proprietor of Murugan School of Commerce, Bodinaickanur forwarded applications, without correct informations in order to cheat and misappropriate the Government funds, to the District Backward Classes and Minority Welfare Officer during the relevant period and persons in-charge of the office of the District Backward Classes and Minority Welfare Officer, Madurai and others have cheated and as well as misappropriated the Government funds to the tune of Rs.4,02,665/-.
5.As there was a complaint of misappropriation, the Director of Backward Classes and Minority Welfare Office, Chennai had ordered an enquiry and formed an Inspection Committee and the said committee had checked and verified various documents and found that the above said institutions were given amounts by way of scholarship without any basis and the applications for scholarship are not proper and the disbursement of amounts are against procedure. Therefore, a case has been registered and investigated, the former District Backward Classes and Minority Welfare Officer, former Assistant Accounts Officer and Junior Accounts Officer and Superintendent and head of the institutions of the above said institutes were charged for various offences as stated above. The petitioners were also charged in all the above said Special Cases as they have actuated and furnished false community certificates in the applications which are later converted as valuable security and made it as document for misappropriating the scholarship amount. The petitioners are charged for offences under Section 120B I.P.C. for criminal conspiracy and Section 420 I.P.C. for cheating and furnishing false community certificates in the applications and also A1 to A11 were charged under Sections 13(1)(c)&(d) r/w 13(2) of the Prevention of Corruption Act, 1988 for abusing their official position as public servants and by corrupt and illegal means, while furnishing false community certificates so as to facilitate the head of the institutions, who claim scholarship amounts with false details in order to get pecuniary advantage for themselves and for others. Aggrieved by the above charges, the petitioners have preferred these petitions under Section 482 Cr.P.C. to quash the same on the following grounds:
i)That the entire prosecution is vitiated because of unexplained and inordinate delay of filing F.I.R. after 6 years of the commission of offence and filing charge-sheet after 11 years of investigation.
ii)That the petitioners have counter signed in the applications and they are working as Headmasters, Doctors, Agriculture Officers, who were authorized to countersign such applications and there is no mala fide intention. The allegations made against the petitioners that they have counter signed in the applications which contained the community certificate and the same was misused by the management of the typewriting institutes and the officials of the District Backward Classes and Minority Welfare Officer to get financial advantage to them is not true. It is not the case of the prosecution that any part of the ill-gotten amount was shared by the petitioners.
6.The learned counsel for the petitioners would submit that there is an inordinate delay in filing F.I.R. and equally there is an inordinate delay in filing the charge-sheet. The learned counsel for the petitioners also pointed out that the petitioners are Gazetted rank officers who are authorized to countersign the scholarship applications and they have not misappropriated the Government funds and therefore, they are not liable to be prosecuted.
7.The learned Government Advocate (Crl.side) opposed the application and relied on a decision of the Supreme Court reported in AIR 1971 SC 520 (P.Sirajuddin etc., Vs. The State of Madras etc.,) wherein the Supreme Court has held that when the public servant is charged for serious misappropriation, preliminary enquiry is necessary before lodging F.I.R. The learned Government Advocate also pointed out that in this case a preliminary enquiry has been conducted before filing F.I.R. and therefore, there was no delay in registering the case. The learned Government Advocate also relied on a decision of the Supreme Court reported in AIR 2001 SC 1246 (Seeta Hemchandra Shasthittal and another Vs. State of Maharashtra and others) wherein the Supreme Court has held as follows:
"(A)Criminal P.C.(2 of 1974), Ss.482, 156 - Quashing of proceedings - Appellants alleged to have committed offences under Prevention of Corruption Act - Offences punishable with imprisonment up to seven years - No period is fixed by legislature for taking cognizance of such offences - Thus mere fact that investigation of offences consumed a period of four years - Cannot be a ground to quash criminal proceedings pending against appellants. (B)Criminal P.C.(2 of 1974) S.482 - Quashing of proceedings - Ground of delay in filing charge-sheet - matter requiring obtaining of sanction from Government - Delay in giving sanction - cannot be attributed to investigating officers - Charge-sheet not liable to be quashed, no such ground."
8.The learned Government Advocate also relied on a decision of the Supreme Court reported in 2001 CRI.L.J.4640 ( Satya Narayan Sharma Vs. State of Rajasthan) wherein the Supreme Court has held as follows:
"H.N.-(A) Prevention of Corruption Act, (49 of 1988) S.19 - Stay of trial - Trial of public servant for corruption charges - No stay can be granted by Court by use of any power - This is also applicable to High Court when it exercises inherent jurisdiction under S.482, Cr.P.C."
9.The learned counsel also relied on a decision of this Court reported in 2007(2) TNLR 366 (Mad)(MB) (S.Irudhayam Vs. State Rep.by the Inspector of Police, Vigilance and Anti Corruption, Madurai) wherein this Court has held as follows:
"(A) Criminal Procedure Code, 1973 - Section 482 - Scope of power under - To quash criminal proceedings pending trial - Exceptional power - To be exercised sparingly, carefully and with caution - And only when such exercise is justified by the tests specifically laid down in the section itself.
(D)F.I.R. lodged after preliminary enquiry - Revealed commission of offence - Subsequent investigation also confirmed the same - Prosecution is neither irregular nor vitiated.
(E)Sanction order - A delay of about 6 months in granting - Proceedings cannot be quashed merely on the ground of delay.
(I)Prevention of Corruption Act, 1988 - Section 13(1)(e) - Commission of offence - Accused has got material to explain that he has not committed any offence - Explanation could be offered before the trial Court at the time of trial - cannot be a valid ground to quash the proceedings.
(K)Prevention of Corruption Act, 1988-Section 13(2) r/2 13(1)(e) -
Proceedings under - Sustainability of - Points raised are either on procedural delay or on technicalities of law - Not fit case to quash the proceedings - Liberty given to raise all the points before the trial court at the appropriate stage."
10.Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.side).
11.The first contention of the learned counsel for the petitioners is that the offences relates to the period 1989 to 1992 and a case was registered only in the year 1997, therefore there is an inordinate delay in registering an F.I.R. According to the prosecution, only in the year 1992 a committee was formed to enquire into the matter and a preliminary enquiry was conducted and thereafter, a complaint has been lodged. As rightly pointed out by the learned Government Advocate after conducting a preliminary enquiry the case has been registered. Therefore, it cannot be termed as delay in filing F.I.R. Likewise, the inordinate delay in filing the charge-sheet was caused as the investigation involved scrutiny of number of documents and examination of many witnesses, etc. Therefore, the ground raised by the petitioners that the proceedings has to be quashed on the point of delay in filing F.I.R. and delay in filing charge-sheet are not sustainable.
12.The petitioners are charged for the specific offence under Section 120B I.P.C. for criminal conspiracy. According to the charge-sheet, between the period of February 1989 and October 1991, A1 to A11 and the proprietors of the above said institutions and the petitioners being public servants and holding their position of their respective posts, entered into criminal conspiracy with each other and agreed to do the illegal acts to commit the offence of cheating as well as misappropriation of Government funds, so as to get the scholarship amounts in the name of the student by illegal means.
13.The next charge against the petitioners are under Section 420 I.P.C. and according to the prosecution the petitioners during the relevant period actuated with criminal intention, furnished false community certificate in the applications, which are later converted as valuable security and made it as document of importance for getting the scholarship amount and thereby committed the offence of cheating punishable under Section 420 I.P.C.
14.They are also charged for the offence under Sections 13(1)(c) and (d) r/w 13(2) of the Prevention of Corruption Act, 1988. As for the petitioners for abusing their official position as public servants by corrupt and illegal means while furnishing false community certificates so as to facilitate the head of the institutions to claim scholarship amount with false details in order to get pecuniary advantage for themselves and for others and thereby the petitioners would appear to have committed the offence of criminal misconduct punishable under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
15.All these cases relate to misappropriation of scholarship fund for the students who were undergoing typewriting and shorthand courses. As stated earlier the students who are applying for scholarship have to forward an application with necessary particulars in a prescribed form through the Head of the Institution, where they are undergoing typewriting and shorthand courses. The application should enclose the supporting documents viz., income certificate and community certificate and copy of the hall ticket for attending the Government examinations. The scholarship amounts will be granted to the students, who are studying in the recognized or approved school of commerce through the head of the institution. The head of the institution would send, on receipt of applications from the students to the District Backward Classes and Minority Welfare Office for scrutiny and verification. Thereafter, the District Backward Classes and Minority Welfare Officer approve the same. After his approval, the Assistant Accounts Officer/Junior Accounts Officer will approve the bill with the assistance of concerned Assistant dealing with the subject and then crossed cheque will be issued by the Assistant Accounts Officer or Joint Accounts Officer, the cheque will be entered in the relevant register and it would be sent to the concerned institution for disbursement to the students as scholarship.
16.There are certain procedures to be followed in forwarding the applications and also in processing the applications. It is admitted that the students and the head of the institutions would fill up the prescribed forms without any omission. In page nos.4 and 5 of the form, the community and the income have to be mentioned by the applicant. A Gazetted rank officer has to attest this page by stating "the above stated particulars are true". The applicant and the parents has to declare the particulars given as true. Based on the particulars given, the District Backward Classes and Minority Welfare Officer has to sanction and cheque will be issued in the name of the student.
17.However, between the year 1989 to 1992 a misappropriation to the tune of Rs.4,02,665/- has been found in relation to the applications received by the above said five institutions. Admittedly, the petitioners are the Gazetted rank officers who signed in many of the applications. Even according to the report, it is found that "tUkhdk; kw;Wk; rhjpr;rhd;W rk;ge;jkhf tH';fg;gl;lth;fs; mth;fSila RUf;bfhg;gk; my;yJ ifbaGj;J ,l;Ls;shh;fs; ,e;j nkw;brhd;d rhd;wpjH;fspy; fhzg;gLk; FiwghLfis itj;J jtwhd eltof;iff;F rhd;wpjH; tH';fpath;fis rpghhpR bra;Js;sdh; vd;gJ bjspthf bjhpfpwJ."
18.The petitioners would also agree that they have counter signed in the applications. However, the point for consideration is whether the petitioners have conspired along with the other accused to do illegal act to commit the offence of cheating as well as misappropriated the Government funds thereby, punishable under Section 120B and 420 I.P.C. and 13(2) of the Prevention of Corruption Act, 1988?
19.On enquiry and on investigation it was found that many of the applications are bogus and many of the applicants are not there in their given address and many of the name of the students are found in the applications have not received their scholarship. In fine, it is found that a sum of Rs.4,02,665/- had been misappropriated by the above said five institutions with the active connivance of the officers of the District Backward Classes and Minority Welfare Office.
20.The learned counsel for the Government Advocate would submit that there are enough evidence implicating the petitioners for the alleged offence. The learned counsel would also point out that had these petitioners verified the applications correctly, the applications would not have been forwarded and the same would not have been processed and amounts would not have been sanctioned. In that score alone, the petitioners have committed serious misconduct in misusing official position as public servants.
21.The petitioners are the public servants who are the Gazetted rank officers authorised to countersign the applications and more particularly they have to certify that what is stated as community and what is stated as income are true. This presupposes that they have to verify the community certificates and income certificates produced by the applicants. If not produced they have to demand for such production and only on such verification they can sign in the application as the particulars given are true. Once they have signed that the particulars given are true, it is construed that the Gazetted rank officers have verified the community certificate and income certificate to enable the applicant to receive scholarship. The non-verification of the certificate or mechanically signing the applications produced by the head of the institutions will amount to serious misconduct. As rightly pointed out by the learned Government Advocate if they have scrutinized the applications strictly and have verified the community certificate and income certificate, the genuineness of the applicants would have been found at the initial stage itself. The petitioners are supposed to scrutinize each applications viz., the applicant signature, their parents signatures and the relevant certificates namely, community certificate and income certificate before countersigning the applications and make it authenticated. Once they have signed the application, it has become authenticated which enables the applicant to get scholarship.
22.The petitioners may state that they have not shared any misappropriated amount but the fact remains that they have signed the application stating that the community certificate and the income certificate are true which are later converted as valuable security and made it as document of importance for getting their scholarship amount and thereby, they are charged for an offence under Section 420 I.P.C. for cheating. Because of their non application of mind while signing the applications, they have abused their official positions as public servants so as to facilitate the others to get pecuniary advantage even they have not shared any Government fund. Facilitating the others is also an offence punishable under Section 13(1)(c) and (d) r/w 13(2) of the Prevention of Corruption Act, 1988.
23.Powers under Section 482 Cr.P.C. has to be sparingly used as stated in 2008 AIOL 749 (Baijnath Jha Vs. Sita Ram and another). The powers cannot be exercised to stifle a legitimate prosecution. This Court is not empowered to justify and to scrutinize the evidences as that of a trial court. In such view of the matter, I am not inclined to interfere with the proceedings in S.C.Nos.11 to 14 of 2008 on the file of the Chief Judicial Magistrate/Special Judge, Madurai.
In the result, the petitions are dismissed. Consequently, connected M.Ps. are closed.
nbj To
1.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Madurai.
2.The Chief Judicial Magistrate/ Special Judge, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.