Madras High Court
G.Shiva vs State Rep. By The Inspector Of Police on 4 October, 2016
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.10.2016 (Orders Reserved on 26.09.2016) CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.R.C.No.712 of 2015 and M.P.No.1 of 2015 G.Shiva ..Petitioner / A.10 Vs. State rep. By the Inspector of Police, CBI-ACB, Chennai through Public Prosecutor, (RCMAI 2012 A 0023) ..Respondent / Complainant Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C., to call for the records to the order dated 09.03.2015 in Crl.M.P.No.1293 of 2014 in Spl.C.C.No.10 of 2014 on the file of the Learned Special Judge, Puducherry and set aside the same and discharge the Petitioner. For Petitioner : Mr.P.S.Ganesh For Respondent/ : Mr.K.Srinivasan Complainant Special Public Prosecutor O R D E R
The Petitioner / A.10 has filed the present Criminal Revision Petition before this Court, as against the Order dated 09.03.2015 in Crl.M.P.No.1293 of 2014 in Spl.C.C.No.10 of 2014 passed by the Learned Special Judge, Puducherry.
2. The Learned Special Judge, Puducherry while passing the Impugned Order in Crl.M.P.No.1293 of 2014 in Spl.C.C.No.10 of 2014 (Filed by the Petitioner / A.10 under Section 239 of Cr.P.C.,) on 09.03.2015 at Paragraph No.10 among other things had observed as under:
10.....only after thorough perusal of the available materials on records and by applying the judicial mind of the Court, this Court can deduce that there is a prima facie case found as against the petitioner and therefore, the decisions relied by the learned counsel for the petitioner would not be helpful in deciding the present petition .
and also at Paragraph No.11 had observed as under:
11. A careful scrutiny of the records placed before this Court by the prosecution, it appears that the petitioner is charged for the offences u/s.120-B r/w.420 IPC and Sec.13(2) r/w. 13(1)(d) of PC Act, 1988. The statement of witnesses and the records submitted by the prosecuting agency clearly implicates the petitioner with the offences alleged. The document produced by the prosecution also forced this Court to proceed further in this matter. Only during the course of trial and after appreciating the oral and documentary evidences and also weighing the materials on record, this court can come to the conclusion that the charge against the petitioner has been proved or not and not at this stage. Hence, this court is of the view that there is enough materials to proceed against the petitioner/A10 and the petitioner is not entitled for discharge from the offences alleged as against him. and consequently dismissed the Petition.
3. According to the Learned Counsel for the Revision Petitioner / A10, the Impugned Order dated 09.03.2015 in Crl.M.P.No.1293 of 2014 passed by the Learned Special Judge, Puducherry is against facts, circumstances and all probabilities of the case.
4. The Learned Counsel for the Petitioner submits that the 161 Cr.P.C., witnesses statements and documents accepted, do not disclose any offence committed by the Petitioner. Furthermore, it is the stand of the Petitioner that none of the witnesses speak either about demand made by the Petitioner or payment of any money or valuable consideration.
5. The Learned Counsel for the Petitioner brings it to the notice of this Court that the Revision Petitioner is to verify the plot and issue 'Scrutiny Report' in regard to the stages of construction. Moreover, the plea taken on behalf of the Petitioner is that along with the application, the document relating to land and certificate issued by the Tahsildar were enclosed and that he verified the plots of (i) Mary Stella and (ii) Pushpanathan and recommended the case with a 'Scrutiny Report'.
6. The Learned Counsel for the Petitioner projects an argument that Exs.D.119 and D223 are the application forms presented by Mary Stella and Pushpanathan respectively for availing the benefit under the Scheme and on perusal of the same would show that a recommendation letter from the Member of Legislative Assembly, the Income Certificate issued by the Tahsildar were attached and later, on verification of both the plots, the Petitioner had given his Scrutiny Report at Page 2 of the application forms.
7. The Learned Counsel for the Petitioner emphatically contends that the trial court had failed to appreciate an important fact that no one shall undergo the ordeal of trial when the records (FIR, Final Report, Section 161 Cr.P.C., Statements and documents) taken as a whole as true one do not disclose any offence on the face of it.
8. The Learned Counsel for the Petitioner submits that the Respondent / Prosecution relies upon the oral evidence of L.W.2, L.W3, L.W.17 and L.W.24 and a perusal of the same would point out that the Petitioner has to verify about the existence of plot and if the construction was made by the beneficiary.
9. The Learned Counsel for the Petitioner forcefully proceeds to state before this Court that there is no piece of material / evidence is available in the present case to show the meeting of the mind between the Petitioner, Beneficiary and the Authority, who had issued the Income Certificate.
10. The Learned Counsel for the Petitioner contends that none of the statements of L.W.1 to L.W.25 point out that the Petitioner has obtained for himself any pecuniary advantage or valuable thing while holding office as public servant by abusing his possession as Junior Engineer, by corrupt or illegal means without any public interest.
11. Also, it is the stand of the Petitioner that even if the Respondent / Prosecution is taken as a truthful one, (along with evidence and documents on records) the same do not disclose of the mens rea.
12. Lastly, it is the plea of the Petitioner that the essential ingredients for cheating and criminal conspiracy are not available in the instant case and the trial court had committed an error in observing that only during the course of trial and after appreciating oral and documentary evidence etc., the Court can come to a conclusion as to whether charges levelled against the Petitioner are proved or not.
13. The Learned Counsel for the Petitioner cites the decision of Hon'ble Supreme Court (Hridaya Ranjan Pd. Verma and Others V. State of Bihar and another) reported AIR 2000 Supreme Court at Page 2341 at Special Page Nos.2345 and 2346 wherein at Paragraph Nos. 16 and 17, it is observed as under:-
16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
17.Judged on the touchstone on the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120-B are concerned, even the basic allegations making out a case thereunder are not contained in the complaint. That being the position, the case comes within the first category of cases enumerated in State of Haryana V. Bhajan Lal (1992 Air SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527) (supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that the respondent No.2 has alleged against the appellants is that they did not disclose to him that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order make the respondent No.2 part with property is not alleged expressly or even impliedly in the complaint. Therefore, the core postulate of dishonest intention in order to deceive the complainant-respondent No.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same."
14. The Learned Counsel for the Petitioner relies on the decision of Orissa High Court in Niranjan Khatua V. State of Orissa (1990 CRI L.J. at Page 2790) at Special Pages 2797 and 2798 wherein at Paragraph Nos.15 and 16, it is observed as follows:-
15. ...........................In the present case, the prosecution evidence suffers from so many serious infirmities as pointed out above that the same lends support to the defence plea that the notes were planted in the pant pocket.
16. From the evidence of the I.O. it is seen that he had ascertained from the Employment Exchange Officer that the accused was entrusted with the registration work. The I.O. admitted in cross examination that he did not ascertain as to who was issuing the call cards and this reveals that the investigation in the case is quite superficial. Hence, there is no reliable evidence to show that the accused was in charge of the duty of issuing the call cards. According to the complainant, the accused was dealing with the registration of unemployed persons. So unless the accused was actually in charge of the duty of issuing the call cards, it is highly improbable that he would have demanded the complainant to pay him a bribe for the issuing of a call card. Out of the twently rupees given to the accused as bribe, ten rupees is supposed to be the bribe for the issue of a call card for Pramod Sahu. So the said Pramod Sahu is the most competent person to say if at all the accused had demanded of him to pay the bribe for the issuing of a call card. But then the said Pramod Sahu was not examined as a witness on the side of the prosecution. So from his non-examination an adverse inference can be drawn against the prosecution.
On a careful consideration of the prosecution evidence and the probabilities of the case, I find that the prosecution has failed to prove that the accused had ever demanded of the complainant or Pramod Kumar Sahu to pay him the illegal gratification for the purpose of issuing call cards in their names. Merely because the currency notes in question were recovered from the pant pocket of the accused, that, by itself, cannot prove either the payment of the bribe to the accused or the voluntary acceptance of the Money by him. In a case of bribe, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. (see Suraj Mal V. State (Delhi Administration), AIR 1979 SC 1408 : (1979 Cri LJ 1087).
15. The Learned Counsel for the Petitioner seeks in aid of the decision of Hon'ble Supreme Court in R.Sai Bharathi V. J.Jayalalitha and Others (2003 (4) CTC at Page 577) at Special Page 578 wherein it is interalia held that Even if it is assumed that some of the officers of Government were circumspect in their attitude having come to the conclusion that A1, Chief Minister of State was interested in purchasing of property and put their seal to such act either tacitly or overzealously it cannot be held that there was conspiracy amongst various persons. Also in the aforesaid decision it is held that To attract Section 13(1)(d) of the Prevention of Corruption Act, 1998 a public servant should obtain to himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or abusing his position as public servant or discarding public interest.
16. The Learned Counsel for the Petitioner draws the attention of this Court to the decision of Hon'ble Supreme Court in Amit Kapoor V.Ramesh Chander and Another ((2012) 9 Supreme Court Cases at Page 460) at Special Pages 478 and 479 at Paragraph No.19 among other things it is observed as follows:-
19........ The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the sales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
17. Besides the above, the Learned Counsel for the Petitioner refers to the following decisions:-
(i) In the decision of Hon'ble Supreme Court N.Sunkanna V. State of Andhrapradesh (2016 SAR (Criminal) At Page 208) in Paragraph No.6 at special Page 210 among other things it is observed as follows:-
6.................In short, there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless, there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B.Jayaraj V. State of Andhra Pradesh [(2014) 13 SCC 55] and P.Satyanarayna Murthy V. The District Inspector of Police and another [(2015) 9 Scale 724].
(ii) In the decision of this Court (Additional Superintendent of Police, CBI, Anti Corruption Bureau, CBI / ACB, Chennai V. G.B.Anbalagan and Others) reported in (2014) 4 MLJ (Crl.) at Page 279 at Special Pages 280 and 284 it is observed as follows:-
In view of the statutory provisions of the Medical Council Act which is a self contained Act and when there are specific provisions in the Act to deal with the misconduct committed by the Institution and if it submits fake/forged declaration forms, it would be improper to resort to Section 420 of IPC altogether ignoring those provisions.
For the purpose of constituting an offence of cheating, the Prosecution is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. A perusal of the allegations would show that the basic ingredients required for falling within the four corners of cheating have not been made as against the accused.
Perusal of the statements of witnesses do not show that any of the Respondents had dishonest intention to cheat the Medical Council of India. The allegations as against the accused do not satisfy the essential criteria of "whoever" the basic requirement of cheating. On reading the charge sheet, it is seen that there is no averment in the charge sheet and its accompaniments even to suggest that the Respondents herein had made any representation much less a deceptive one to the Medical Council of India Inspectors. There is no sufficient material on the basis of which any charge could be framed against the Respondents."
(iii) In the decision of Delhi High Court (Alpana Das V. C.B.I.) reported in 2007(2) Crimes at Page 26 at Paragraph No.6, among other things it is held as follows:-
6............ "In the present case, no valuable thing or pecuniary advantage has been derived so as to bring the conduct of the petitioner under Section 13(1)(d) of the said Act. This is so even as per the facts of the prosecution case. Therefore, there is no question of framing any charge under Section 13(1) (d) and consequently, Section 13(2) would also not be applicable. As regards the charge of attempt to commit cheating, the said allegation is based on the premise that the accused had falsely showed payment of premium to the Insurance Company before the date of the incident. In other words, what is alleged is that the accused had showed that premium had been paid and received by the Insurance Company prior to the date of the incident of fire. As noticed above, this is clearly not the case. The fire took place on 30.05.1994 whereas the premium was admittedly received by the Insurance Company on 01.06.1994. It is nobody's case that premium was recieved prior to 30.05.1994. Therefore, this charge is also not made out. It may also point out that the pay order bears two dates 27.05.1994 and 31.05.1994. Apparently, the pay order was prepared on 27.05.1994 as indicated by the endorsement under the signature of the Bank Manager and that is why the digits '31', were written under the digits '27' on the top right hand corner of the draft. This goes to show that the pay order itself had been issued subsequent to the date of the incident and could therefore, not be towards an insurance policy covering an incident which had already taken place. In these circumstances, the impugned order is set aside. The accused is discharged."
(iv) In the decision of Jammu & Kashmir High Court (S.R.Gupta and Others V. State of Jammu and Kashmir) reported in 2004(3) Crimes at Page 511 at Special Page 512 it is observed and held as under:-
For making out the criminal conspiracy, there must be an agreement of some kind. There must be unity of design or purpose, a concert of will and endeavour comprising what has agreed to, not what has been done. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. No written, formal, or definite agreement is necessary to constitute a conspiracy, its existence being generally a matter of inference from the acts of the parties. To infer the conspiracy, there must be a meeting of the minds; a mutual implied undertaking or tacit agreement, all the parties working together with a single design, for the accomplishment of the common purpose. In view of the nature of the offence, conspirancies if not always/mostly hatched in privacy and, therefore, direct evidence is seldom available. If such is the case, then it has to be gathered from the surrounding circumstances and acts in which the accused are alleged to have acted for commission of the offence. In the present case, so far as the Purchase Committee is concerned, it had no role to play admittedly in the registration of the Unit as Small Scale Industrial Unit. The registration of a Unit as SSI Unit is granted by a separate Department of the Government. The members of the Purchase Committee have no role to play in such registration. The Unit of accused No.9 was registered even when the NIT had not been floated for the purchase of Domestic Solar Lights. To the NIT floated, all the Firms dealing in the supply of Domestic Solar Lights could make their bids or tenders quoting their individual rates. There is no evidence on record to show that any of these Firms knew what rates were being offered by the other, meaning thereby the pooling of the rates was not there. Apart from un-registered Small Scale Industrial Units, registered SSI Units could make their tenders. Acceptability of the rates offered by a registered SSI Unit depended upon the fact that rates offered by it fell within the price preference rates as compared to the lowest rates offered by any of the other Firms. Thus, there could be no certainty that the tender submitted by a particular Firm would be accepted by the Purchase Committee. The Purchase Committee has not shown any undue favour in accepting the tender of the accused No.9. The Firm of accused No.9 was a duly registered SSI Unit, therefore, there could not be and cannot be any inference of meeting of minds or an agreement between the members of the Purchase Committee and that of accused No.9. The articles for which the supply order has been placed stands duly supplied. The quality of the Domestic Solar Lights supplied by the accused No.9 is, admittedly, not below the specifications or low standard.
(v) In the decision of Hon'ble Supreme Court (Anil Kumar Bose V. State of Bihar) reported in AIR 1974 SC 1560 at Spl. Page 1562 at Paragraph Nos.11 and 12 it is observed as follows:-
"11. For the purpose of holding them guilty, the evidence adduced must establish, beyond reasonable doubt, mens rea on their part. We will, therefore, consider the case of each appellant from that aspect. With regard to the Accountant, Raghunath Prasad, the evidence relied upon by the High Court for its conclusion of guilt of this appellant may be set out in its own words:
"Ext. 1 is the duty chart of the Accountant. The first item of this chart is 'Sole in charge of accounts and to exercise general supervision on all staff working under him for the efficient working of the Accounts Section.' The third item of this chart is "To complete the Bill Book and get it checked and signed by the Deputy Superintendent. 'I must point out that this duty has not been performed by the Accountant in the case of these disputed bills. The fifth item of his duty is 'to put up all salary bills prepared by the dealing assistant daily before the Superintendent'. The Superintendent, P.W.9 Dr.Safdar Ali Khan has stated that the Accountant is responsible for keeping the acquittance Roll in order... It is stated in paragraph 21 that the Accountant should check the bill and then place for signature of higher officers. Of course, it is in evidence that the Superintendent has asked the office to place all bills for his signature in the office on his table and no clerk should stand there when he would sign on those bills. This direction is clearly against item No.5 of the Duty Chart of the Accountant. I do not know for what purpose he made this innovation in the procedure. But this procedure would not absolve the Accountant of his duty to check the pay bills and other bills before sending them to the Superintendent... It is further interesting to note that the disputed pay bills do not bear the initial or signature of the Accountant below the signature of the Superintendent... As the evidence shows, the Accountant did not purposely sign on these forged bills with a view to get himself absolved of the responsibility... As a matter of course, the work of this Accountant was to get pay bills prepared, check them and then put up before the Superintendent for his signature so that after obtaining his signature the bills may be sent to the treasury for encashment."
12. On the above evidence at the highest it was a failure on the part of the Accountant to perform his duties or to observe the rules of procedure laid down in the Duty Chart in a proper manner and may, therefore, be an administrative lapse on his part about which we are not required to pronounce any opinion in this case. Without, however, anything more we do not think it will be correct to impute to this appellant a guilty intention which is one of the essential ingredients of the offence of cheating under Section 420 IPC. Apart from this, the High Court is not correct and indeed had no material to hold that "the Accountant did not purposely sign on these forged bills with a view to get himself absolved of the responsibility."
The evidence of the Superintendent, which is extracted above, runs counter to that conclusion."
Also in the aforesaid decision at Page 1564 at Paragraph No.15 it is laid down as follows:-
Even on the finding of the High Court, there was nothing in the Duty Chart that the duty of the Cashier was to see that the payment was made to the correct or right person. There is further no evidence that these three Doctors were known to the Cashier. On the other hand, the High Court has no absolutely repelled the argument advanced on his behalf that it was not possible for him to know all the Housemen. The High Court has come to an adverse conclusion against him on account of his not properly ascertaining who was the real recipient' of the money before he disbursed the same. The material before the High Court together with the significant observation against the Superintendent and the Deputy Superintendent do make out a case for giving benefit of reasonable doubt to the Cashier as well. On the evidence which the High Court has relied upon against him, it is not possible to hold that the requisite mens rea has been established against this accused. As observed in the case, of the Accountant, it may be at the highest a case of an error of judgment or breach of performance of duty which, per se, cannot be equated with dishonest intention to establish the charge under Section 420 IPC. In the result, the appeals are allowed. The judgment of the High Court so far as these two appellants are concerned is set aside. The two appellants are herein are acquitted of the charge and shall be discharged from their bail bonds.
(vi) In the decision of Hon'ble Supreme Court (Union of India and another V. Major J.S.Khanna and another) reported in 1972 CRL L.J. 849 (V 78 C212), it is held that The fact that the procedure adopted by the officer was not strictly in accordance with the Rules prescribed for purchasers would not by itself lead to the inference of fraud or any other criminality on his Part. Even if gross negligence on his part is proved, it cannot be said that he has actuated with criminal intetent. The fact that in some cases prices higher than those quoted by certain firms were paid cannot, without anything more, lead to the conclusion of any fraudulent intent or conspiracy.
(vii) In the decision of Hon'ble Supreme Court reported in 1996 Supreme Court Cases (Crl.1205) (C.Chenga Reddy and Others V. State of A.P., it is held as follows:-
Though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet no dishonest intention on their part could be shown and none of the circumstances relied upon by the prosecution could be construed as incriminating or were of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. These acts of omission and commission do give rise to a strong suspicion that the appellants so acted with a view to misappropriate government funds but suspicion, howsoever strong, cannot take the place of proof. The courts below appear to have drawn inferences by placing the burden of proving innocence on the appellants which is an impermissible course. None of the circumstances relied upon by the prosecution against the appellants can be said to have been proved satisfactorily and all those circumstances, which are not of any clinching nature, even if held to be proved do not complete the chain of evidence so complete as to lead to an irresistible conclusion consistent only with the hypothesis of the guilt of the appellant and wholly inconsisent with his innocence. The prosecution has not established the case against the appellant beyond a reasonable doubt."
18. Per contra, it is the submission of the Learned Special Public Prosecutor for the Respondent / Complainant that as per First Information Report, A.1 to A.6 (Public servants) and unknown private individuals between the year 2008 till 25.05.2012 had entered into a criminal conspiracy to cheat the Government of Puducherry in the matter of sanction and disbursement of financial assistance under V phase of the Puducherry Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless poor people. Further, pursuant to the aforesaid criminal conspiracy A.1 to A.6 processed the cases of ineligible applicants, based on forged documents and released the financial assistance to them, to the tune of Rs.16 Crores.
19. Moreover, the amount released as financial assistance was not utilised by the said ineligible applicants for the purpose for which it was sanctioned and converted it for their own use. Therefore, by commission of the aforesaid acts, the accused / public servants and the unknown private individuals had caused a wrongful loss of about Rs.16 Crores to the Government of Puducherry and corresponding wrongful gain to themselves.
20. Added further, the Learned Special Public Prosecutor for Respondent / Complainant contends that the investigation revealed that 1. Sathyavani (Al Junior Engineer) 2. D.Sekar (A.2 Revenue Inspector) 3. Govindarasu (A.3 Karnam) 4. K.Veeramuthu (A.4- Facility Inspector) 5.K.Murugavel (A.5 Karnam) 6. A.Kandasamy (A.6-Karnam) 7.A.Sudeesh (A.7 -Karnam) 8. Senthilnathan (A.8 Junior Engineer) 9. Sudarsan (A.9- Junior Engineer) 10. G.Siva (A.10 Junior Engineer) (the Revision Petitioner) 11.R.Gopinathan (A.11 Junior Engineer) while discharging their duties as public servants in SCB, Puducherry, for the period from 2010 to 2012 had entered into a criminal conspiracy at Puducherry and other places by agreeing to make unlawful recommendations to ineligible applicants in the matter of sanction of subsidy under Phase V of the 'Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless poor people
21. It is represented on behalf of the Respondent / Complainant that in furtherance to the afore stated criminal conspiracy, the aforesaid A.1 to A.11 by abusing official capacity dishonestly and fraudulently recommended to sanction subsidy to the ineligible applicants, who were either not below the poverty line or they had not constructed the house at the required level and thereby induced the SCB, Puducherry to sanction and disburse subsidies to the ineligible applicants. Indeed the aforesaid accused had caused a wrongful loss to an extent Rs.84,60,000/- (Rupees Eighty Four Lakhs and Sixty Thousand only) to the Pondicherry Slum Clearance Board, Puducherry. Hence the final report under Section 173 of Cr.P.C., was filed against the A.1 to A.11 (Public servants) of SCB, Puducherry, including the Revision Petitioner / A.10 for commission of offence punishable under Section 120-B r/w 420 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
22. The Learned Spl. Public Prosecutor for the Respondent brings it to the notice of this Court that the case was taken on file in Special C.C.10 of 2014 by the Learned Special Judge, Puducherry and copies were furnished to all the accused and charges were framed as early as on 20.07.2015.
23. The Learned Spl. Public Prosecutor for the Respondent submits that the Revision Petitioner / A.10, he, being a Public Servant in the capacity of Junior Engineer, Slum Clearance Board, had entered into a criminal conspiracy with other accused. Public Servants (A.1 to A.9 and A.11), Petitioner and in furtherance of the said criminal conspiracy by abusing his official position has dishonestly recommended two ineligible beneficiaries namely, Mary Stella and Pushpanathan for the sanction of subsidy under Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless Poor People Phase V and thereby cheated Pondicherry Slum Clearance Board, Government of Puducherry.
24. The Learned Special Public Prosecutor for the Respondent refers to the G.O.Ms.No.17/2003 Hg dated 5.12.2003 of the Government of Pondicherry in and by which the notification was issued stating that the Administrator of Pondicherry was pleased to formulate a Scheme to provide Financial Assistance to the Houseless Poor below poverty line to construct a house for the said purpose made the Rules, namely, Pondicherry Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless Poor Rules, 2003.
25. In this connection, the Learned Special Public Prosecutor for the Respondent refers to the Rule 2, Definition (n) of Pondicherry Perunthalaivar Kamaraj Centenary Housing Scheme for the Houseless Poor Rules, 2003, which runs as under:-
2(n) Below Poverty Line means a person whose annual family income is not more than Rs.24,000/- (Rupees twenty-four thousand only) or as prescribed by the Government from time to time.
26. Also the Learned Special Public Prosecutor for the Respondent refers to G.O.Ms.No.11/2007-Hg., dated 28.03.2007 notification whereby in Rule 4 of the aforesaid scheme after clause (iv), the following amendments were brought in:
(v) the intending beneficiary or his/her spouse is not a Government servant.
(vi) a hut owner who has lived for more than ten years in an institution land
27. Further in G.O.Rt.No.88/2010Hg Chief Secretariat (Housing) Government of Puducherry dated 31.03.2010 at Sl.No.13 for Orleanpet Constituency, in the Official Incharge (Phase- V) the name of the Revision Petitioner, G.Siva (Junior Engineer) is found.
28. The Learned Special Public Prosecutor for Respondent submits that in Form I (See Rule 5) Puducherry Slum Clearance Board at Sl.No.17, the occupation of Mary Stella W/o Martin Sagayanathan was mentioned as 'Coolie'. She had signed declaration stating that either herself or any other members of the family is / are not serving in Government or in any other allied Government Establishments. Further, in the Letter in ref. No.112/PW/PHD/ESTT./ES.7/2013/2686, Government of Puducherry Public Health Division, P.W.D., dated 29.04.2013, the Executive Engineer had furnished the copies of documents / particulars in respect of S.Martin Sagayanthan, Mazdoor (Husband of Mary Stella). In fact for the month of July, 2011 to September 2011, the total emoluments (per month) of S.Marthin Sagayanathan was Rs.17,621/- (Rupees Seventeen Thousand Six Hundred and Twenty One only)
29. The Learned Special Public Prosecutor for the Respondent refers to Form I (See Rule 5 of Puducherry, Slum clearance Board) under Perunthalaivar Kamarajar Centenary Free House Construction Scheme wherein at Sl.No.17, the Applicant Pushpam @ Pushpanathan had mentioned his occupation as 'Coolie'. He had also signed in the declaration that either himself or other members of his family is / are not working in Government or other allied Government Establishments. At this stage, the Learned Special Public Prosecutor for the Respondent proceeds to state that Pushpanathan is a Trained Graduate Teacher (Retd.). That apart, the Learned Special Public Prosecutor for the Respondent refers to the statements of L.W.17, G.Karthigeyan who had stated that C.Pushpanathan is a 'Trained Graduate Teacher'. Similarly, L.W.24, L.Anbajagane in his statement had stated that Martin Sagayanathan (Husband of Marry Stella) was appointed as Mazdoor in PWD/PHP on 07.03.2002.
30. The Learned Special Public Prosecutor for Respondent contends that the overt acts by Petitioner/A.10 were clearly mentioned in the Charge Sheet filed by the Respondent. Also that, the clear cut stand of the Respondent is that the trial court had scrutinised the documents / materials such as D119, D221, D223, D231 and oral evidence of L.W.2 and L.W.3, who conducted joint inspection along with the team of CBI and statements of L.W.12, L.W.17 and L.W.24 and by considering the facts and circumstances ultimately dismissed the Crl.M.P.No.1293 of 2014 in Spl. C.C.No.10 of 2014 on 09.03.2015 by assigning necessary reasons, hence the impugned order of dismissal passed by the trial court does not suffer from any legal infirmities.
31. By way of reply, the Learned Counsel for the Petitioner submits that admittedly, Mary Stella and Pushpanathan are ineligible to avail the benefits of the scheme in question but however, the Respondent / Prosecution had not arrayed the beneficiaries and the Tahsildar as accused in the case. It is also represented that the Respondent / Prosecution had indulged in pick and choose investigation and really the Tahsildar and the beneficiaries ought to have been brought before the Court. Besides this, a plea is taken that there is no Rule or Law, which enjoins that the Petitioner should verify statements of the 'Beneficiaries'.
32. It is to be borne in mind that the Revisional Power of the High Court under the Criminal Procedure is only to find out whether the trial court had acted legally. In fact, the Revisional Jurisdiction of the High Court under Section 401 of Cr.P.C., is quite different from an Appellate Jurisdiction. Undoubtedly, the scope of Revision is limited. It is a settled law that the High Court in Revisional Jurisdiction does not act as a 'Court of Appeal'. Furthermore, the Revisional jurisdiction is ordinarily to be exercised in exceptional / rare case where there is a manifest error or glaring defect in the procedure adopted, resulting in serious miscarriage of justice.
33. Also that the Revisional Court has to satisfy itself that the court below had decided the case on irrelevant consideration or on account of insufficiency of relevant materials available on record.
34. It cannot be gainsaid that an obligation to discharge an accused under Section 239 of Cr.P.C., would arise only when the trial court considers the charge against an accused to be a 'Groundless' one. The exercise of evaluating materials in a pros and cons manner or in golden scales is not to be undertaken, at this stage. If at the early stage, there is a strong suspicion which enables a Court of Law to come to the conclusion that there is a ground for presuming that an accused had committed an offence, then, it cannot be said that there is no enough ground for proceeding against an accused.
35. As a matter of fact, the term 'Discharge' is to be read with reference to the specific offence for which an accused is charged. Whether the accused is guilty or innocence of the charges levelled against him, the evidence / materials relied on the side of prosecution are not to be scanned in a meticulous fashion, because of the simple reason, the same are to be looked into at the time of trial of the main case, of course in a threadbare fashion in the considered opinion of this Court.
36. The litmus test for deciding whether the charge would be groundless is that where the materials are such that even if unrebutted make out no case whatsoever. If there is a strong suspicion the charges ought to be framed, as opined by this Court. Where there are exfacie requisite materials available on record to frame necessary charges against an accused the charge cannot be said to be 'Groundless' and an accused in law is not to be discharged.
37. Be that as it may, in the light of the aforesaid detailed qualitative and quantitative discussions and on an overall assessment of the present facts and circumstances of the case in cumulative fashion and also this Court keeping in mind that the charges were framed on 20.07.2015 comes to an irresistible conclusion that after framing of a 'Charge' an accused is to face trial and convicted or acquitted and there is no provision for cancelling / dropping of charges. Furthermore, in the instant case, it cannot be said that there are no materials against the Petitioner / A.10. Viewed in that perspective, the present Criminal Revision Petition is devoid of merits.
In fine, the Criminal Revision Petition is dismissed for the reasons assigned in this Criminal Revision Petition. Consequently, connected Miscellaneous Petition is closed.
04.10.2016 Index: Yes/No Internet: Yes/No ssd M.VENUGOPAL,J., ssd To
1. The Learned Special Judge, Puducherry
2. The Public Prosecutor, High Court, Madras.
Pre-Delivery order in Crl.R.C.No.712 of 2015 and M.P.No.1 of 2015 04.10.2016