K.Subbiah vs State By on 12 April, 2012

[Cites 22, Cited by 0]

Madras High Court

K.Subbiah vs State By on 12 April, 2012

Bench: C.S.Karnan

       

  

  

 
 
 
IN THE HIGH COURT OF JUDICATURE AT MADRAS

                    Dated:      12/ 04 / 2012                
					
Coram

THE HON'BLE MR.JUSTICE C.S.KARNAN

Crl.R.C.No.1462 of 2011 &
M.P.No.1 of 2011



								
K.Subbiah								.. Petitioner 


Vs.

State by
Deputy Superintendent of Police,
Vigilance and Anti Corruption,
CCII, Chennai.							.. Respondent


Prayer :-	Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the order of the I Additional Sessions Judge, Chennai in Crl.M.P.No.9450 of 2010 in C.C.No.17 of 2005, dated 16.09.2011 and discharge the petitioner/Accused-A2 from framing of the charges.	

			For Petitioner  	  : Mr.S.Xavier Felix
	
			For Respondent        : Mr.C.Balasubramanian
						   Addl.Public Prosecutor

- - -






ORDER

The Government of Tamilnadu have ordered for recruitment of 1000 Sub-Inspectors of Police (Men and Women) by direct recruitment vide their order in G.O.M.S.No.1317, Home (Police III) Department, dated 08.09.1997. A total number of 27,304 applications for men candidates and 4,339 applications for women candidates, for Sub-Inspectors, were received. On scrutiny of applications, 26,012 applications for men candidates and 4,167 applications for women candidates, were found to be valid. 1,292 applications for men candidates and 172 applications for women candidates were found to be invalid. The eligible applicants were called for physical efficiency test. 8,628 men candidates and 830 women candidates cleared the physical efficiency test. After the physical efficiency test, 1,710 men candidates and 445 women candidates cleared the written test. From various process of selection viz., physical measurement, physical efficiency and written test, 2,546 comprising of 1,710 men candidates and 445 women candidates from an open competition and 379 men and 12 women candidates from 20% department quota became eligible for the interview and were called in batches during November 1998 and December 1998 at the Police Training College, Chennai - 600 083 by two Committees formed by the Government, as per D.O.Ltr.No.218/SECY/98, dated 21.11.1998. The Government appointed two Committees consisting of one Chairman and four Members in each Committee. The first Committee was represented by one Mr.V.Jagannathan, I.P.S. as Chairman and assisted by four other I.P.S. Officers as Members. The second Committee was headed by the petitioner-Mr.K.Subbiah, I.P.S. as Chairman and assisted by four other I.P.S. Officers as Members. Each Board was to interview 80 candidates per day. The candidates to be interviewed on each day by the particular Board would be allotted by the Tamil Nadu Uniformed Service Recruitment Board at random. 10 marks were allocated for VIVA-VOCE, 3 marks for special achievements and 2 marks for special achievements in Sports and Games and NCC and NSS.

2. It is reported that on receipt of information of the Commission of irregularities and malpractices by the Tamil Nadu Uniformed Service Recruitment Board in the above recruitment of Sub-Inspectors of Police, a preliminary enquiry was conducted, resulting in registration of Regular Case in Cr.No.1/AC/2002/CC2 of V & AC for the offence punishable u/s.120B r/w.465, 468 r/w.471, 167 of IPC and Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 and u/s.109 of IPC, dated 28.02.2002 against the petitioner and three others. Thiru.N.Elangovan, I.P.S. (Retired), A-3, formerly Deputy Inspector General of Police and Member Secretary of TNUSRB, Thiru.V.Jagannathan, I.P.S., formerly Inspector General of Police and the Chairman, Interview Committee No.I and the petitioner-Thiru.K.Subbiah I.P.S., formerly Inspector General of Police and Chairman of Interview Committee No.II and Thiru.T.M.Rajendran, I.P.S., (Retired) formerly Personal Assistant in TNUSRB were charged for conspiring to frame incorrect records, making false entries in the Interview Assessment Sheets, by manipulating marks, for selecting certain ineligible candidates. The sum and substance of the allegation is that the interview assessment sheets were tampered with and also some candidates were benefited by being selected under sports quota, which was found to be untrue.

3. It is to be mentioned in this context that two Committees were set-up. Committee No.I, headed by Thiru.V.Jagannathan, I.P.S., A-1, Committee No.II headed by Thiru.K.Subbiah, A-2. During the period when both A-1 and A-2 were Inspectors General of Police. A-1 who was working as Inspector General of Police and Commissioner of Police, Salem during 1998-1999, was nominated as Chairman of Interview Committee-I along with one Deputy General of Police and three Superintendents of Police. A-3-Thiru.V.Elangovan, I.P.S. who was working as Deputy Inspector of Police and the Member Secretary of Tamil Nadu Uniformed Service Recruitment Board, Chennai during 1998-1999, was nominated as one of the members in the Interviewing Committee-I. Besides he was also entrusted with the custody of all records relating to the recruitment process and finalization of selection.

4. Thiru.V.Chandra Kishore, I.P.S., cited as L.W.1. would state that "during a meeting held on 09.09.1998 at the Chamber of Secretary to Government, Home Department, it was resolved that Thiru.N.Elangovan, I.P.S., Member Secretary of Tamil Nadu Uniformed Service Recruitment Board would attend the matter connected to the exercise recruitment and he was entrusted with the work of P.C's recruitment". He would also state that he had handed over all the records on 22.09.1998. He would further state that Thiru.N.Elangovan, I.P.S. fully maintained the selection process, till the release of the final list and that he was in custody of interview assessment sheets. Thiru.N.Elangovan, I.P.S. had completed the selection before 03.02.1999. The said Thiru.N.Elangovan, who was A-3 in the above case has already been discharged by the trial Court. He was the custodian of all the records pertaining to the interview that took place for the candidates for the post of Sub-Inspectors.

5. It is submitted that A1-Thiru.V.Jagannathan, I.P.S., having the rank of Inspector General of Police, is the Chairman of Interview Committee No.I, assisted by one Deputy Inspector General of Police along with A3-Thiru.N.Elangovan participating as Member Secretary and two Superintendents of Police in the selection of Sub-Inspector of Police. Likewise, Committee No.II, is headed by the revision petitioner herein/Thiru.K.Subbiah, A2, who was also an Inspector General of Police, assisted by a Committee of Members in the rank of Deputy Inspector General of Police and three Superintendents of Police. A3-Thiru.N.Elangovan, is the custodian of records for both the Committees and he has been discharged by the trial Court in a common order in Crl.M.P.No.61, 1186 and 1188 of 2006, dated 30.03.2007.

6. A-4, Thiru.T.M.Rajendran, I.P.S. was working as Personal Assistant (Administration) in Tamil Nadu Uniform Service Recruitment Board in the relevant period in Chennai. He was nominated to assist the Interview Committee I and II and also during the course of interview, to verify the identity certificate of NCC/NSS/games/sports candidates before sending them to the Interview Committee-I and II. A-3, Thiru-N.Elangovan, and A-4, Thiru.T.M.Rajendran filed petitions separately to discharge them before the framing of charges. A-3, Thiru.N.Elangovan's petition for discharge was allowed by this Court and A4's petition was dismissed by the trial Court.

7. The revision petitioner herein submitted that the petition filed under Section 227 of Cr.P.C. for discharging of the petitioner/accused No.2 from framing of the charges on the final report filed by the respondent/complainant, was dismissed by the learned I Additional Sessions Judge, Chennai, in Crl.M.P.No.9450 of 2010 in C.C.No.17 of 2005, dated 16.09.2011. Aggrieved by the dismissal of the discharge petition, the above Criminal Revision has been filed.

8. The counter statement filed by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Department, Chennai, denied all illegalities and averments except those that are specifically admitted herein. The respondent denied the averments made by the revision petitioner in this revision ground, paras 1 to 54, as incorrect.

9. The respondent stated that the contention of the revision petitioner/A-2 that he cannot be charged when A-3 and A-4 have been discharged, is stoutly denied as incorrect, since specific allegations have been levelled by the prosecution against the revision petitioner/A-2. It is submitted that some important remarks/observations made by this Court, while discharging Thiru.N.Elangovan, A-3, in Crl.M.P.No.61 of 2006 on 30.09.2007 assumes much importance. It was stated that in the order of this Court corrections are said to have been made and attested by an Officer in the rank of Inspector General of Police. The respondent submitted that whether the accused had knowingly with a dishonest intention made a false interview assessment sheet by making false corrections, therein by his own handwriting for the selection of several candidates or not, could be canvassed in trial only. In this regard, the expert has also been examined. The disputed corrections were subjected to the examination by the document expert, who confirmed the alterations of marks and also by using the ink of different tints for making corrections. Further, the respondent stated that the materials available on record including the F.I.R. and the statements recorded under Section 161 of the Criminal Procedure Code make it crystal clear that a prima facie case is made out against the revision petitioner. The allegations explained above by the prosecution cannot be thrown out without the commencement of trial. All the other queries raised by the petitioner could be canvassed and decided only after adjudication.

10. The respondent submitted that the prosecution has relied upon a large number of documents besides the statements of several witnesses particularly, the Selection Committee Members viz., Tmt.Archana Ramasundaram, I.P.S; Tr.A.Alexander Mohan, I.P.S; Thiru.K.Gopalakrishnan, I.P.S; and Tr.A.M.S.Gunaseelan, I.P.S. who are listed as witnesses 11, 12, 13 and 14 respectively, who spoke about the corrections and alterations of mark sheets in the interview assessment sheets by the Selection Committee Chairman.

11. The revision petitioner has filed a reply counter and resisted the counter statement of the respondent. The revision petitioner stated that there is no sufficient ground and prima facie case to frame charge under Section 120-B of I.P.C. As per the Interview Committee No.II, chaired by the revision petitioner/accused No.2 is the only remaining conspirator, as the other two conspirators viz., Thiru.N.Elangovan, I.P.S., and Thiru.T.M.Rajendran, I.P.S., their rank A-3 and A4 respectively were discharged from the Proceedings. while so, the charge sheet was filed as against accused 1 to 4 for the offence under Section 120(B) r/w.465, 468 r/w.471, 167 of IPC and Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 and u/s.109 of IPC. As far as the first accused viz., Thiru.V.Jagannathan, I.P.S., is concerned, he was the head of Committee No.I and there is no link between the Committee No.II, in the matter of conducting the viva-voce for the selected candidates.

12. When accused 3 and 4 were charged by being the Members of the conspiracy and two were discharged by the trial Court and this Court, then the question of singling out a particular person being the Member of the criminal conspiracy cannot be sustained. Only on the strength of 120-B of I.P.C., all other penal provisions are included in the final report. In other words, only with the aid of Section 120-B, the other penal provisions are to be framed against this petitioner. When there is no legal or factual evidence for framing the charges under Section 120-B, no charge, without the aid of other penal offence, can be framed. The trial Court while discharging Thiru.Elangovan, I.P.S., A-3 in the common order mentioned that, "It can certainly be said that there is no circumstances indicating that accused ever met for the purpose of carrying out the alleged common illegal objects. It can be said that there is no necessary to make out a meeting of persons; but it is sufficient if there are circumstances to show that there was meeting of the minds of the accused. For this purpose of also, there is no direct evidence. Of course, it is permissible to infer from materials, circumstantial in nature can be drawn regarding existence of conspiracy only when those circumstances lead to one and the only inference that there was or could have been a conspiracy. Applying this test also no circumstantial materials are found in the documents and the statements furnished by the prosecution leading to the inference of existence of conspiracy. This view about to the total lack of evidence for the conspiracy charge will be further strengthened when considering the materials in respect of the alleged commission of other specific offences charged against the accused."

13. The revision petitioner further stated that the trial Court nowhere made any observation at all against the revision petitioner/Accused No.2. The trial Court held, Para 8:

"Even in the statement Thiru.K.Gopalakrishnan, I.P.S., member of the committee, has admitted that there were genuine corrections on rare occasions. All the members except Tmt.Archana Ramasundaram, I.P.S., examined during investigation say that they did not notice the corrections earlier. They were not definite that corrections were found at that time. Even the member Archana Ramasundaram, I.P.S., says that alterations appears to have been made subsequently. These members were examined in the year 2002. Whereas the interview has taken place in the year 1998. Hence, their statement have to be taken with a grain of salt"

Para 9:

"It is provided under the scheme of selection that marks are to be awarded only by the Chairman after the consensus of the members. On such consensus, the alteration is done only by the Chairman attesting with full signature as per guidelines. Thus there are no circumstances in the material provided by the prosecution the corrections were not bona fide.

14. The revision petitioner further stated that in all the offences, there is absolutely no material or prima facie case or even remote chances to frame the charges with the sufficient grounds except to draw inference under Section 114 of the Evidence Act or u/s.20(1) of the Prevention of Corruption Act. The revision petitioner further stated that neither in the F.I.R. nor in the 161 statements of all the witnesses or any other document filed by the prosecution the name of the petitioner finds a place for committing the offence punishable under section 120(B) r/w.465, 468 r/w.471, 167 of IPC and Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 and u/s.109 of IPC

15. The petitioner further stated that Tmt.Archana Ramasundaram has noticed 23 additions of marks and 9 deductions of marks for candidates and the same were authenticated by Thiru.K.Subbiah, I.P.S., the Chairperson. But, who has done the alterations in the marks is the only material substance of the entire case and not whether the additions or deductions were made by the petitioner Mr.Subbiah, I.P.S. In the answer given by the same witness at Pg.73 of the charge sheet it has been clearly mentioned that these alterations appears to have been made subsequently. From her entire statement u/s.161 of Cr.P.C. read in full, the sum and substance is that the list should be put up in a cover and sealed in the presence of all the members with their signatures on the same evening. All the members should put their initials on the cover and it should be kept in the custody of the Chairman, TNUSRB (Tamil Nadu Uniformed Service recruitment Board) namely, Mr.F.C.Sharma, I.P.S., (his name deliberately omitted in her statement). Further she has also stated in her 161 statement that the results should be sent through a special messenger, daily, on a sealed cover to the Member Secretary (Mr.N.Elangovan, I.P.S., Accused A3 - Discharged by the trial Court) who in turn keeps all such sealed cover in a box till the interview is over.

16. The revision petitioner further submitted that it is the case of the prosecution that all the four persons viz., L.W.11-Tmt.Archana Ramasundaram, I.P.S; L.W.12-Mr.A.Alexander Mohan, I.P.S; L.W.13-Mr.K.Gopalakrishnan, I.P.S and L.W.14-Mr.A.M.S.Gunaselan initialed and the same was handed over to the custody of Mr.N.Elangovan, I.P.S. He further submitted that whereas the custody of the tally sheets was only with Mr.N.Elangovan, I.P.S., and it was authenticated in the 161 statement of L.W.12-Mr.A.Alexandar Mohan.

17. The revision petitioner submitted that L.W.13-Mr.K.Gopala Krishnan has stated, " I don't find any different ink used by Chairperson for making such correction. These could have been for 1 or 2, not for all the 23 candidates."

18. The revision petitioner further submitted that the evidence of L.W.14-Mr.A.M.S.Gunaseelan, " I have noticed the above additions and reduction when I signed in the Interview Assessment Sheet. Mr.N.Elangovan, I.P.S., the Member Secretary for TNUSRB was the custodian of the interview assessment sheet after awarding of mark sheet by the Committee."

Therefore, there is absolutely no evidence against the petitioner as alleged by the L.W.11, L.W.12, L.W.13 and L.W.14 as stated in the counter.

19. The learned counsel for the revision petitioner submitted that there are totally four accused in C.C.No.17 of 2005, in which the revision petitioner has been arrayed as A-2 and he has been charged under Section u/s.120B r/w.465, 468 r/w.471, 167 of IPC and Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 and u/s.109 of IPC. In order to prove the prosecution case against all four accused, 121 documents were filed, out of which 74 tally sheets were filed. 104 witnesses are listed. P.W.1.Thiru.V.Chandrakishore, I.P.S., spoke about the conducting of an interview headed by A-1 and A-2 assistance of A-3, custody of records, verification of certificates by A-3 and signing of tally sheets and other relevant facts. But, A-3 was discharged by the learned I Additional District and Sessions Judge, Chennai in C.C.No.17 of 2005. A4 also had been discharged by this Court in Criminal R.C.No.1652 of 2007. Likewise, the revision petitioner has to be discharged from the Criminal Proceedings. Actually, all the listed witnesses spoke about A-1, A-3 and A-4. P.W.11-Tmt.Archana Ramasundaram, spoke about the Interview Committee headed by A-2, procedures relating to awarding of marks in the interview assessment sheet, verification sheet by A-4, filling of tally sheets during the interview. Custody of records by A-3 and the subsequent personal of interview of assessment sheets of Committee-II, alterations of some marks without their knowledge, using of inks of different tints and other relevant facts. P.W.12-Thiru.A.Alexander Mohan, I.P.S., P.W.13-Thiru.K.Gopalakrishnan and P.W.14-Thiru.A.M.S.Gunaseelan, I.P.S., in their evidence corroborated the evidence rendered by P.W.1. Once A-3 and A-4 have been discharged from the Proceedings, then, there is no case against the revision petitioner. The allegation against A-3 was that he was the custodian of records and therefore he is the correct person to speak about the records regarding the alteration of marks. Now, he is not shown in the picture, since he has been discharged. The witnesses, P.W.11, P.W.12, P.W.13 and P.W.14 rendered evidence in a hypothetical manner. As per their statement, there is no mention of relevant particulars regarding alteration of records besides time, date and place and from whom the revision petitioner collected the assessment sheets and made alterations and remarks. In the absence of relevant particulars, the prosecution case is irregular. The prosecution has approached the Court with an unclear statement of particulars. The interview was conducted by the Committee No.I and II, consisting totally of 10 top police officers, each committee consisting of 5 elite Police Officers, out of which, the criminal case was filed against only 4 officers. Already 2 officers were discharged stating that they were not connected with this case. As per the prosecution case as A-3 is the custodian of records, the mark sheets cannot be altered without the knowledge of A-3 as the mark sheets was in possession of A-3.

20. The learned counsel further stated that the prosecution had registered a case under Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, stating that the petitioner had received a sum of between 2 to 3 lakhs from the ineligible candidates and altered the mark sheets in order to favour the candidates. P.W.94, one Thiru.Ravi, who spoke about his participation in the selection for Sub-Inspector, informed that he met with A-3 at his residence before the personal interview and that he demanded Rs.3,00,000/- for selection. There was no such specific allegation against the revision petitioner/A2. Therefore, the offence under Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988 is not made out.

21. The learned counsel further submitted that the recruitment was made in the year 1997-1998, but the prosecution case has been registered from an information of an unknown person. The case was registered in the year 2005, after about 7 years and the prosecution case was initiated against the 4 accused including the revision petitioner/A-2, who was an honest and eminent police officer in the rank of Inspector General of Police, law and order, who maintained the law and order in the entire state of Tamil Nadu impeccably and who is now retired from service with a distinguished record. The learned counsel further submitted that there is no documentary proof or even circumstantial evidence and eye witnesses regarding any kind of corruption against the revision petitioner.

22. The learned counsel for the petitioner submitted that the Home Secretary of the State had conducted an enquiry through investigation agency after registering a regular case against A-2 and A-3 and the investigating report in respect of the possession of assets disproportionate to the known source of income by A-2 and A-3 has not been substantiated and it has been recommended to drop further action against them. The same reports have been examined by the Government and on the recommendation of the appropriate investigating agency carefully and independently, the Government has decided to accept the recommendations of the investigation agency and to drop any further action against them. Accordingly, the Government directs that further action against A-2 and A-3 on the allegation of possession of disproportionate assets be dropped. The said order was passed by the Home Secretary of the State in G.O.Ms.No.1163. As per the order of the Home Secretary, the revision petitioner is an innocent top Police Officer and has not been involved in any kind of irregularity and illegality in his tenure of service. The Home Secretary's order has become final and part and parcel of the prosecution case.

23. The learned counsel for the petitioner further argued that the recruitment was made as per G.O.M.S.No.1317, Home (Police III) Department, dated 08.09.1997, but the criminal case was registered in the year 2005 after an lapse of nearly 8 years, which is an inordinate delay, besides a lapse of the prosecution. There was no valid explanation regarding the inordinate delay for initiating a Criminal Case against the accused persons. Defacto complainant's name and address was not mentioned in the F.I.R., but on information, a case was filed. Therefore, the so called prosecution case cannot be sustained under law. The defacto complainant was not at all in the list of witnesses.

24. The learned counsel has cited the below mentioned citations in support of the revision.

S.No Citation Remarks 1 AIR 1956 SC 33 (FB) Topandas Vs. State of Bombay "By the terms of the definition of criminal conspiracy itself, there ought two or more persons who must be parties to an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If, therefore four named individuals were charged with having committed the offence u/s.120(B), Penal Code, and if three out of this four were acquitted of the charge, the remaining one accused could never be held guilty of the offence of the criminal conspiracy."

1971 SCC Crl. 574 R.C.Mehta vs. State of Punjab "(i)the High Court has made a very serious mistake in proceeding on the basis that legal presumption u/s.4(1) of the Act applied and in this way has practically thrown the burden of proving his innocence on the appellant.

(ii)the judgment of special judge and the high Court confirming the conviction of the appellant for an offence u/s.5(1)(d) of the Act as well as the sentence of imprisonment and the fine imposed for the said offence are set-aside."

1972 SCC Crl. 751 Bhagat Ram Vs. State of Rajasthan "Section 120B - Scope - Two persons charged - one acquitted - whether basis of charge under section disappears.

The charge under Section 120B relates to conspiracy of more than one person involve in the charge. Where only two persons are charged and one of them has been acquitted under the section, the basis of the charge under Section 120B IPC disappeared against the other person, it was not the case of the prosecution, that Bhagat Ram conspired with another person and even though the identity of the other person has not been established.

Bhagat Ram would still be guilty for the offence under Section 120B IPC.

Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy, the charge against Bhagar Ram for conspiracy must necessarily fall to the ground."

1973 SCC Crl. 796, D.G.Gowswami vs. Delhi Administration "The statutory presumption permissible u/s 4(1) of the Prevention of Corruption Act (corresponding Sec.20(1) of 1998 Act) is not available with respect to Sec.5(1)(d) (Corresponding Sec.13(1)(d). The question of presumption is a pure question of law which goes to the root of the matter relating to the appellants conviction u/s.5(1)(d)".

1975 SCC Crl.491 Sitaram Vs. State of Rajasthan "Sec.4(1) does not permit the drawing of presumption in case of offence referred to in Sec.5(1)(d) (Corresponding Sec.13(1)(d) following a decision in V.K.Sharma Vs.Delhi Administration 19755 SCC Crl.277"

1980(2) SCC 390 Hazarilal Vs. Delhi Administration "It was observed that there is no requirement to prove passing of money by direct evidence. It may also proved by circumstantial evidence. As far as the present case is concerned there is not even an iota of circumstantial evidence from all the witnesses for the prosecution either to prove demand or acceptance or agreed to accept."

1994 SCC Crl. 1707 Harish Chandra Krishna Gadkar vs. State of Maharashtra "Singling out a particular person being the member of the conspiracy was not sustainable when all other conspirators were discharged by the Courts."

1944 SCC Crl.1376 Sukhvinder Sing Vs. State of Punjab "Sec.73 of Evidence Act-comparison of disputed writing with admitted or proved writing - direction to an accused to give specimen writing can only be issued by the Court holding enquiry under Cr.P.C. or the Court conducting trial of such accused."

1995 SCC Crl.215 P.K.Narayana Vs. State of Kerala "Penal Code, 1860-SS 120 B- the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act ad as such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also tithing the innocence of the accused person then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation.

An offence of conspiracy cannot be deemed to have been established on mere suspicious and surmises or inferences which are not supported by cogent evidence"

1997 (2) SCC 414 Mohamoodkhan Pathan Vs. State of Maharashtra for invoking presumption of law as contemplated u/s.20 of PCA 1988 (section 4(1) of 1947 Act) unless prosecution proved that money paid was not towards any lawful collection of legal remuneration, the Court cannot take recourse to presumption of law contemplated Section 4(1) of the Prevention of Corruption Act though the Court is not precluded from drawing appropriate presumption u/s.114 of Evidence Act.

1998 (7) SCC 337 Suresh Budharmal Kalani Vs. State of Maharashtra "a presumption can be drawn only from facts - and not from other presumptions by a process of probable logical reasons"

JT 2000 (Supp.2) SC 458 Madhukar Bhaskarlal Joshi Vs. State of Maharashtra 2000 (7) Supreme 522 "If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, in word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it"

2000 (8) ST 498, (FB) M.Narasingha Rao. Vs. State of A.P. "Even for drawing presumption the condition pre-requisite that there must be an acceptance, or agreed to accept any gratification."

2006 CDJ SC 1141 Venkatasubbaro Vs. State "... in the absence of proof of demand, the question of raising the presumption would not arise u/s.20 of Prevention of Corruption Act 1988 provides for raising of a presumption only if a demand is proved."

CDJ 2007 SC 527 State of Andhra Pradesh Vs. Uma Maheswara Rao "however as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion."

2010(4) MLJ (crl.) 308 R.Pattivinayagam Vs.State by Inspector of Police Vadavalli Police Station, Coimbatore.

"In exercise of powers u/s.482 of Cr.P.C., the High Court in appropriate cases is entitled to look into the documents submitted by the accused."

2010 (4) MLJ Crl.166 K.P.S. Jeyachandran Vs. State Rep. by D.S.P., Erode Town "Since the petitioner accused has been exonerated in the department proceedings and the existence of malice against him has been recorded by the Highest Police official in the state the Criminal Proceedings against the petitioner shall stand quashed."

2011 (4) MLJ Crl. 687 (SC) R.Ramachandran Nair Vs. Deputy Superintendent, Vigilance of Police and another No Whisper of allegation in FIR or charge sheet that appellant had made any personal gain in the transaction - Prosecution waited 81/2 years to file charge sheet, not justified - Prosecution cannot be allowed to proceed - Even otherwise he being a Vice-Chancellor, acted diligently by following procedure, no action could be initiated after a period of 8 years from the initiation of the complaint - Government had taken a decision to withdraw criminal proceedings pending against him, but, no follow up action was taken before concerned Court seeking permission - Court may legitimately draw a presumption that Government had taken a conscious decision exonerating appellant and no reason to doubt integrity of appellant - In view of abundant materials factually and in view of non-compliance of statutory provisions, appellant satisfied case for discharge from the criminal proceedings - Appellant discharged from all allegations - Appeal allowed."

25. The respondent has filed counter statement and opposed the revision petition. Learned counsel for the State argued that the A-2 and A-4 have not been discharged, further there is a specific allegation levelled against the revision petitioner. The learned counsel further pointed out that this Court in his order, made some important remarks while discharging Thiru.N.Elangovan, A-3 in Crl.M.P.No.61 of 2006 on 30.03.2007 and it assumes much importance. In the order, it has been stated by this Court that the corrections are said to have been made and attested by the officer in the rank of Inspector General of Police. The learned counsel further submitted that the issue, whether the accused have knowingly, with a dishonest intention made a false assessment sheet by making false corrections therein through his own handwriting for the selection of several candidates, has to be decided after adjudication by the trial Court and therefore, at this juncture the discharge petition is not maintainable. The final report reveals that the accused used an ink of different tint in several pages and this is also to be canvassed only in the trial Court. The expert has also been examined in this regard and he has confirmed the alteration of marks by the use of inks of different tints for making corrections. From the materials available on record viz., F.I.R. and statements collected from the relevant witnesses under Section 161 of Cr.P.C., it is crystal clear that a prima facie case is made out against the revision petitioner, who is the chairperson of the Selection Committee No.II. If the revision petitioner is discharged from the criminal proceedings, the entire prosecution case would collapse.

26. Learned counsel further argued that P.W. 11, P.W.12, P.W.13 and P.W.14 are all the elite Police Officers, who spoke about alteration of marks by using inks of different tint and they are the concrete witnesses in the prosecution case. Learned counsel further argued that only after conducting preliminary enquiry case has been registered against the accused since it is found to be a prima facie case and now this case is ready for trial.

27. The learned counsel for the State has cited a Judgment in State of Maharasthra Vs. Somnath Thapa reported in 1996 SC 1744 : (1996) SCC (Criminal) 820 : (1996) MLJ Criminal 513, wherein it is observed that at this stage of framing of a charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at this stage. Learned counsel further argued that the Court at this stage of framing of charge exercises a limited jurisdiction. It will only see whether a prima facie case has been made out and it will not delve deep into the matter for the purpose of the appreciation of evidence. It is beyond any doubt or dispute that at this stage of framing of charges this Court will not waive the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution is able to bring home the charge against the accused will arise only after all the evidences are brought on record at the trial, as per the said contention observed by the Hon'ble Supreme Court of India and reported in MLJ (Criminal) 2008, Page No.1641, in Hemchand Vs. State of Jharkhand. Learned counsel further submitted that the ineligible candidates are also listed witnesses in the prosecution case, who have not produced the certificates viz., NCC, NSS, sports and games, but they had been awarded marks and had been selected. This alteration had been made for personal gain after receiving illegal gratification, hence the offence under Section 13(1)(d) r/w.13(2) of Prevention of Corruption Act, therefore, the learned counsel for the State entreats for the dismissal of the revision petition.

28. Per contra, the learned counsel for the revision petitioner argued that there is no demand or acceptance in the prosecution case, as such the prosecution case carries only unclear statements. Absolutely, there is no prima facie case against the accused, hence no disciplinary action can be taken against the accused persons even though, they are retired from service for the reason that there is an order passed by the Home Secretary of this State in G.O.Ms.No.1163, dated 03.08.2007, wherein the Home Secretary has directed to drop further action regarding the allegation of disproportionate assets, in the same crime number in which, A-3 an A-4 have already been discharged and as such the revision petitioner is also entitled to get similar relief.

29. After going through the entire records and on hearing the arguments of the learned counsels, this Court is of the view:-

Clause-I :-

In this case the accused was not arrested and no interrogation was made. The prosecution case have been levelled only on the basis of one sided statements.

Clause-II :-

There is no specific evidence for demand and acceptance of illegal gratification and this was strengthened by the order passed by the Home Department of this Sate in G.O.Ms.No.1163, dated 03.08.2007.

Clause-III :-

The accused No.3, Thiru.N.Elangovan was the custodian of the entire records as per the prosecution case. Therefore, he is the fittest person to speak about the records when the records were handed over to the revision petitioner (relevant time, date and place), who was discharged from the Criminal Proceedings in Crl.M.P.No.61, 1186, 1188 of 2006 in C.C.No.17 of 2005 by the I Additional Sessions Judge, Chennai. Further, the statement has been collected from A-3 against A-2 and therefore in the absence of crucial evidence, a wide lacuna arises in this case.

Clause-IV :-

The occurrence took place in and around 1997, but the case was registered in the year 2005 and there is no explanation on the side of the prosecution for the inordinate delay. So, this case has been filed as an after thought based on anonymous information. The defacto complainant was not in the picture.

Clause-V :-

Even though all the accused have retired from service and are receiving Government pension, there is no disciplinary action against any of them since the case was not proved as per the order of the Home Department, passed in G.O.Ms.No.1163, dated 03.08.2007. As such, the accused is deemed innocent.

Clause-VI :-

The case was registered under Section 120-B, punishment for criminal conspiracy. The language of Section 120-B reads as under:-

"120-B. Punishment of criminal conspiracy.-

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."

As per the prosecution case all the accused connived with each other and had committed the forgery. If this revision petitioner had connived with the co-accused for committing forgery, as per Section 465 IPC, how could A-3 and A-4 be discharged?

Therefore, this Court considers that no conspiracy has been made out under sections 120-B r/w. Section 465 in the instant case.

Clause-VII :-

The language of Section 468 r/w 471, reads as follows:-

"468. Forgery for purpose of cheating- whoever, commits forgery, intentioned that the (document or electronic record forged) shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

"471. Using as genuine a forged (document or electronic record)-whoever, fraudulently or dishonestly uses as genuine any (document or electronic record) which he knowns or has reason to believe to be a forged (document or electronic record) shall be punished in the same manner as if he had such forged (document or electronic record) "

As per Section 468 and 471 forgery for the purpose of cheating, using as genuine a forged document, A-3 presence is absolutely necessary, in order to establish this section, since he was the custodian of the entire records and he has already been discharged from the prosecution case. On this count, the prosecution case is not sound.

The language of 167 reads as follows:-

"167. Public servant framing an incorrect document with intent to cause injury.- whoever, being a public servant, and being, as (such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record) in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

In order to establish this Section, no eye witness is mentioned in the prosecution case.

Clause No.VIII :-

The language of 13(1)(d) r/w.13(2) of Prevention of Corruption Act, 1988, reads as follows:-

"13(1)(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

As per this section there was no evidence for the demand and acceptance of illegal gratification from the revision petitioner, but, there is a vague allegation that the revision petitioner had collected Rs.2 to 3 lakhs from the ineligible candidates. This sort of unclear statement cannot be sustainable under law.

Clause No.IX :-

The language of Section 109 I.P.C., "468. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for punishment of such abetment, be punished with the punishment provided for the offence"

As per this section, the accused committed the offence by conniving with the co-accused and as the co-accused A-3 and A-4 were discharged, hence this section lapses.

30. On verifying the facts and circumstances of the case, arguments advanced by the learned counsels on either side and on perusing the citations cited by the learned counsels, this Court's view of clauses I to IX and on scrutiny of the impugned order passed in Crl.M.P.No.9450 of 2010 in C.C.No.17 of 2005 on the file of I Additional Sessions Judge, Chennai, this Court is inclined to interfere with the impugned order, therefore, the impugned order is set-aside. Consequently, the discharge petition in Crl.M.P.No.9450 of 2010 in C.C.No.17 of 2005 is allowed and the revision petitioner is discharged. Accordingly, ordered.

31. Resultantly, the above Criminal Revision is allowed. Consequently, the order passed in Crl.M.P.No.9450 of 2010 in C.C.No.17 of 2005 on the file of I Additional Sessions Judge, Chennai, dated 16.09.2011 is set-aside and the Crl.M.P.No.9450 of 2010 is allowed. Consequently, connected M.P.No.1 of 2011 is closed.


12 / 04 / 2012
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Index    : Yes .
Internet : Yes .








To
1. The I Additional Sessions Judge, Chennai .
2. The Deputy Superintendent of Police,
    Government of Tamil Nadu,
    Vigilance and Anti Corruption,
    CCII, Chennai.			 


C.S.KARNAN, J

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Pre-Delivery order made in 
Crl.R.C.No.1462 of 2011 &
M.P.No.1 of 2011

















  12  / 04 / 2012

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