Madras High Court
R.Parthasarathy vs State Rep. By Inspector Of Police on 30 December, 2020
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
Crl.R.C.No.1340 of 2017
and Crl MP No.13012 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.12.2020
PRONOUNCED ON : 30.12.2020
CORAM:
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
Crl.R.C.No.1340 of 2017
and Crl MP No.13012 of 2017
R.Parthasarathy .. Petitioner
Vs.
State Rep. By Inspector of Police,
CC1W CID,
Anna Nagar,
Chennai – 600 040. ... Respondent
Prayer: The Criminal Revision filed under Section 397 r/w 401 of the Code
of Criminal Procedure, praying to call for the records in connection with
Crl.M.P.No.873 of 2011 in C.C.No.7451 of 2010, dated 17.08.2017 on the
file of the XI Metropolitan magistrate, Saidapet and set aside the same and
allow the revision.
For Petitioner : Mr.V.Chandra Prabu
For Respondent : Mr.K.Madhan,
Government Advocate (Crl.side)
1/14
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.1340 of 2017
and Crl MP No.13012 of 2017
ORDER
This criminal revision petition is filed against the order passed by the learned XI Metropolitan Magistrate, Saidapet in Crl.M.P.No.873 of 2011 in C.C.No.7451 of 2010.
2. Crl.MP No.873 of 2011 in C.C.No.7451 of 2010 was filed under Section 239 of the Criminal Procedure Code by the petitioner, the 2nd accused in C.C.No.7451 of 2010 for discharging him from this.
3. The brief facts of the case are as follows:
The respondent registered a case in crime No.1 of 2009 under Sections 408, 409, 477 (a), 420 r/w 120 B of IPC against 13 persons. A1 to A7 are the officers of Tamilnadu Primary and Agricultural and Rural Development Bank. After investigation, the respondent filed two separate charge sheets under Sections 468, 471, 420 and 109 of IPC against the petitioner. In this case, the petitioner is a 2nd accused and the Principal borrower is shown as the 1st accused. It is seen from the documents produced in this case that the Principal borrower has admitted his guilty 2/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 that except him no one is responsible for the alleged commission of the offence. Of the six members, who are officers of the bank, the names of 4 persons namely Senthil, Selvi, Mariappan, Ganapathy and Venkateswaran were deleted from the Charge Sheet. Some of the accused are cited as witnesses. There is no material on record to show any complicity against the petitioner in the alleged offence. The petitioner is not obligated to verify the genuineness of the documents submitted for availing loan. It is the collective responsibility of bank officials Legal Advisor, Assistant Manager, Manager who were arrayed as accused on the F.I.R have been deleted in the charge sheet. There is no material to show that the petitioner had conspired with the Principal borrower, who is A1. The duty of the petitioner is to get the valuation certificate from the office of the Sub Registrar. There is no occasion or necessity for him to meet the borrower. The bank officers in the Managerial level will only sanction the loan. The petitioner has no rode in sanctioning the loan. However, the respondent Police has exonerated the persons who are in a position to make decisions and wrongly implicated the petitioner as accused. The petitioner is very 3/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 aged person and suffering from multiple diseases. Therefore, the petitioner has to be discharged from this case.
4. The respondent filed a counter contesting the claim of the petitioner and stated that there are sufficient materials to frame charges against the petitioner under Sections 408, 465, 467, 468 r/w 471, 477(A), r/w 120 (B), 109 of IPC. As the land valuer, it is the duty of the petitioner to verify the documents of the borrower, inspect the property and verify whether the property is in the name of the borrower by examining the Sub Registrar and Village Administrative Officer and then furnish the certificate regarding the guideline value. But the petitioner has not done these things and he colluded with A1 namely A.Subramani and obtained bogus documents from his borrower and cause a loss to the Bank. There is enough materials available to frame charges against him under Sections 408, 409, 477(A), 420 & 120 (B) of IPC. Hence the respondent prays for dismissal of the revision petition.
4/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017
5. The learned counsel for the petitioner would submit that the enquiry was conducted under Section 81 of the Tamilnadu Cooperative Societies Act in respect of various irregularities alleged to have been committed in granting the loan. Based on the enquiry report dated 18.02.2008, a complaint was lodged. The Defacto complainant mentioned that A1, namely Subramani admitted that he has created fabricated documents submitted to the bank authorities and availed loan. He has specifically given a statement that he alone had fabricated the documents. Instead of prosecuting Subramani alone, FIR was registered against A.Subramani and some bank officers. However, after investigation, the persons responsible for sanctioning the loan have been let off and the petitioner was tagged along with Subramani as accused. The petitioner had no role to find the genuineness of the document. The findings arrived by the trial Court on the basis of the document called “Duties and Responsibilities of the Land Estimation Engineer” is not a document collected in the course of investigation. It was filed at the time of argument by the learned Assistant Public Prosecutor. Even if the allegation that the petitioner has not properly performed his duties, it would amount only to 5/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 dereliction of duty, only a departmental proceeding could be taken and not a criminal proceedings like the one initiated now. Therefore the learned counsel appearing for the petitioner prays for setting aside the order of the learned Judicial Magistrate by acquitting the accused.
6. He places his reliance on State of Karnataka Vs L.Muniswamy and others reported in 1977 2 SCC 699, P.Thangaraju Vs State rep. Deputy Supreintendent of Police, Vigilance & Corruption reported in 2011 Crl LJ 1044 and K.Suresh kumar Vs State reported in 2014 (3) MLJ (Crl) 3 10 with regard to the facts to be considered at the time of framing charges or disposing the discharge petition.
7. Point for consideration in this petition is whether the order of the learned XI Metropolitan Magistrate, Saidapet suffers from any incorrectness, illegality or impropriety?
8. It is a settled position of law that at the time of framing charges, i. The Courts need not have to go into evidentiary value of the materials 6/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 filed along with final report ii. The court should not appreciate the evidence iii. The materials brought on record have to be accepted that it is true iv. There is no need to conduct a mini trial rowing and fishing enquiry are impermissible.
v. The Court is not required to go into details of the investigation. vi. The court is required to find out whether the materials placed discloses a strong suspicion against he accused and whether there is sufficient ground of proceeding against the accused.
9. Admittedly the petitioner is a land valuer. It is seen from the copy of the enquiry report dated 12.04.2009 that six instances of cheating, forgery and use of forged document as genuine have been unearthed. Out of these six offences, petitioner is concerned with item No.1, item No.2, item no.4 and item no.6. Along with the petitioner some other officials have been shown as accused involved in the commission of the offences. A complaint was lodged and a case in Crime No.1 of 2009 was registered against 13 persons. However, it is seen from the final reports, one charge 7/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 sheet was filed against the accused 1.A. Subramani 2. R.Parthasarathy
3.S.Karthikeyan and another charge sheet was filed against the accused Subramani and Parthasarathy. Now these charge sheets have been taken cognizance in C.C.No.7451 of 2009 and C.C.No.7454 of 2010.
10.This case relates to cheating the bank to the tune of Rs.5,00,000/- by producing bogus documents. Final report reads that the accused Subramani created false and fabricated documents and using those documents secured a loan of Rs.4,90,500/- and caused a loss to the bank. It is the duty and responsibility of the land valuer who is the 2 nd accused to verify the properties offered as a security/ mortgage to avail the loan. He has to give the valuation certificate after consulting the Sub Registrar and Village Administrative Officer and after physically verifying the availability of property on ground. However, it is alleged that the petitioner, without actually verifying that whether the property was really in existence and without conducting any enquiry with regard to the genuineness of the documents and ownership, in connivance with the co-accused Subramani recommended to sanction the loan. Thus caused loss to the bank. The 8/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 failure to perform his duty as required has been stated by Sub Registrar, Selvaraj, S/o, Sadayandi in his statement. He conducted the enquiry u/s.81 of Tamil Nadu Co-operative Societies Act, 1983 and given elaborate statement with regard to the role played by the borrower Subramani in producing the bogus sale deed. He also specifically stated that the role of the petitioner in not properly enquiring the existence and genuineness of the property and sale deed and colluding with the accused Subramani in recommending the loan to him for illegal consideration.
11. Similarly Mr.Praburam, in-charge Secretary of Saidapet Primary Cooperative Agricultural and Rural Development bank has also stated about the non performance of duty expected to be performed by the petitioner. It is seen from their statements that the petitioner, as a land valuer has to inspect the property offered as security, conduct enquiry among the persons living nearby the property and the Village Administrative Officer about the true nature, ownership of the property, get guideline value from SRO and give a valuation certificate. It is necessary to see the “Duties and Responsibilities of land and Estimation Engineer” to have a better 9/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 understanding of the role of a land valuer.
“2. By local enquiry, the land Valuation and Estimation Officer, in respect of every loan applications referred to him shall ascertain the following aspects and furnish certificate in the loan application.
(a) Credit worthiness of the borrowers
(b) Any other undisclosed debts or court proceedings etc.,
(c) Verify the correctness of the particulars furnished in loan application.
3. During the course of inspection of the hypotheca, he should contact the village officers and verify Village accounts, such as 10-1 Chitta, Adangal, Field measurement Boom (FMB), Settlement Register etc. He should collect from the village officers, information such as payment, of gist and other dues to Governement, without arrears, particulars of Government loan dues, if any, and the applicant's holdings in order to ensure that his holdings do not exceed the ceiling limit, and also other particulars as are required in relation to loan applications. He should also obtain assistance of village officers in the identification of lands at the time of Inspection of lands at the time of Inspection of Lands.
4. He should inspect the hypotheca assess its value, 10/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 and applicant's repaying capacity and make a detailed appraisal and recommend Loans in accordance with the instructions issued from time to time by the Head Office. He should verify genealogical tables, record statements, affidavits, attest the part-field sketch, etc. He should record his candid opinion regarding the genuine need of the loan and the repaying capacity of the applicant.
5. The Land Valuation and Estimation Officer will gather sales statistics and / or obtain guideline value from the Sub-Registrar's Office. For this purpose, they may search the records in the Sub-Registrar's Office.
The aforementioned passage are self explanatory about the duties of Land Valuer.”
12. This document may have been produced during the course of arguments in the discharge petition. Still it is relevant for arriving a decision in this case. It is seen from the materials produced in this case, especially the statement of material witnesses that the petitioner has not performed his duty in accordance with the duties and responsibilities of the 11/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 land valuer and was also responsible for causing loss to the bank. Merely because some of the persons, who were earlier shown as accused on FIR, now deleted in the final report, the petitioner cannot expect the same kind of treatment for him. There are sufficient materials to show his complicity in the commission of crime. Even if they are not shown as accused now, there is a possibility of adding them as an additional accused under Section 319 of the Criminal Procedure Code offence.
13. The learned trial Judge properly shuffled the evidence and found that there are sufficient grounds to proceed further against the accused by framing appropriate charges. There is nothing in correctness or illegality or impropriety in the order of the learned trial Judge. Therefore, the order of the learned trial Judge is confirmed and Criminal Revision is dismissed. The trial Court is directed to dispose of the case as early as possible, preferably within a period of three months, from the date of receipt of a copy of this order.
12/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017
14. With the above direction, this Criminal Revision is disposed of. Consequently, connected miscellaneous petition is closed.
30.12.2020 vum Index: Yes/No Speaking order / Non Speaking order To The XI Metropolitan magistrate, Saidapet.
13/14 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 G.CHANDRASEKHARAN.J., vum Crl.R.C.No.1340 of 2017 and Crl MP No.13012 of 2017 30.12.2020 14/14 https://www.mhc.tn.gov.in/judis/