Madras High Court
S.Kiragan (Died) vs State Rep By
Author: G.Jayachandran
Bench: G.Jayachandran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
09.10.2018 30.10.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.108 of 2009
S.Kiragan (died)
K.Kaliammal :Appellant
(Appellant is substituted as per the order of this Court dated
08.01.2015 and made in M.P.(MD) No.1 of 2014)
Vs.
State rep by,
The Inspector of Police,
SPE/CBI/ACB/Chennai,
RC.30(A) 95. : Respondent/complainant
PRAYER : Criminal Appeal is filed under Section 374 of the Code of
Criminal Procedure, to admit this appeal on file and call for the
records from the lower Court and set aside the Judgment of the Lower
Court passed by the learned Special Judge for C.B.I Cases, Madurai in
C.C.No.10 of 2003 by allowing this appeal.
For Appellant : Mr.G.Karuppasamy Pandiyan
For Respondent : Mr.N.Nagendran,
Special Public Prosecutor
for CBI Cases.
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment of the Trial Court convicting one Kiragan, Inspector of Central Excise in Sector -D of Aruppukottai Range, Virudhunagar Division in Madurai Commissionerate for offence under Sections 218, 420 IPC and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988. Pending appeal Kiragan, the appellant died and his wife Kaliammal has been permitted to continue the appeal vide order of this Court dated 08.01.2015 made in Crl.M.P(MD) No.1 of 2014.
2.The case came to be registered by the CBI based on the source information. The investigation carried out pursuant to the registration of the case revealed that Kiragan, Inspector of Central Excise in Sector -D of Aruppukottai Range, Virudhunagar division in Madurai Commissionerate had entered into a criminal conspiracy with other accused namely, M.Gandhi (A-2), R.Jeyaraj (A-3), V.Mohanraj(A-4), M.M.Khan (A-5) to cheat the Central Excise Department in the matter of issuance of challans and sale of Central Excise stamps on a concessional rate to the Cottage Industries Sector in matches production.
3.Pursuant to the said conspiracy, 255 numbers of TR-6 challans were prepared by A-2, A-3 and A-4 as if 27 match industries http://www.judis.nic.in 3 have applied for issuance of Central Excise Stamps at the concessional rate. A-5 had prepared four challans in the name of defunct factory. Whereas, Kiragan (A-1) knowing fully well that 255 TR-6 challans were prepared by A-2 to A-5 without the knowledge of the concerned match factories, had countersigned the challans. Similarly he has countersigned the four challans fraudulently prepared by A-5, knowing fully well that those factories are defunct and not in existence.
4.By virtue of the countersignature made by A-1 as Inspector of Central Excise in Sector -D of Aruppukottai Range, Virdhunagar Division in Madurai Commissionerate, A-2 to A-5 have presented those forged challans as genuine in the Sub-Treasury, Aruppukottai and had obtained Central Excise Stamps. The Stamps so obtained by fraudulent means at concessional rate were sold to private parties and finally utilised by the match factories for their products. Those factories are not entitled for concessional Excise Stamps, thereby A-1 along with A-2 to A-5 had caused a wrongful loss to the tune of Rs.5,83,490.50 to the Central Excise Department. The trial Court has framed as many as seven charges against the accused persons A-1 to A-5. As far as the Kiragan/A.1 is concerned, he was charged for the following offences:-
http://www.judis.nic.in 4
(i) under Sections 120(b) r/w.467, 468, 471 r/w.467, 218 and 420 IPC and Section 13(2) r/w. 13(1)(d) of P.C Act, 1988.
(ii) Under Section 218 IPC
(iii)under Section 420 IPC
(iv)under Section 13(1)(d)(ii) and (iii) and punishable under Section 13(2) P.C.Act, 1988.
5.27 match industries in whose names the challans were fraudulently prepared by A-1 to A-5 without the knowledge, are shown in the Annexure-A of the charge sheet. 56 match industries which illegally procured the concessional Excise Stamps through the accused persons, are shown in the Annexure-B of the charge sheet.
6.The prosecution to prove the charges have examined 94 witnesses and marked 378 exhibits through theses witnesses. In defence no witnesses and no documents were marked.
7.The trial Court on appreciation of the evidence let in by the prosecution has held that 255 challans were countersigned by A-1 prepared in the names of 27 match industries to avail Central Excise Stamps at concessional rate. Forged challans were prepared and presented without the knowledge of the concerned match factories. Kiragan (A-1) who is in-charge of Sector-D, had countersigned the http://www.judis.nic.in 5 challans presented by match industries which does not fall in the jurisdiction of Sector-D. The representatives of the concerned match industries have been examined by the prosecution and have categorically disowned those challans. Thus, the Trial Court held that these 255 challans were prepared to avail excise Stamps at concessional rate, which were purchased without the knowledge of the owners/ lessees/ Managers of the respective match factories.
8.The trial Court also held that A-1 has countersigned those challans and many of its do not fall within his jurisdiction (Sector-D) and he has not intimated the concerned Inspector in charge of these sectors and after countersigning the challans he has also not made entries in the Register to show that he has signed the challans. He did not prepare copies of the challans. Thereby except countersigning bogus challans, he has not brought on record, which he should do in the normal course of exercising the duty. Similarly without verifying the origin of the challans, he has countersigned in the name of four defunct factories.
9.The Court below while holding A-1 for guilty of offence under Sections 218, 420 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, acquitted the remaining accused 2 to 5 on the ground that the prosecution allegation against these http://www.judis.nic.in 6 accused “may be true”, but in the absence of direct evidence against them, the Court cannot draw conjectures and inferences based on such loosely threaded evidence. The prosecution has proved beyond doubt that A-1 has countersigned the challans relating to match factories which did not fall in his sector, but that does not mean that such challans were procured wholly by A-2 to A-5 except the evidence of P.W.93 that there is no other corroborated evidence to conclusively prove the guilt of A2 to A-5. Therefore, they are entitled to benefit of doubt.
10.In the said background Kiragan was found guilty and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.2,000/- in default to undergo three months rigorous imprisonment for offence under Section 218 IPC, two years rigorous imprisonment and to pay a fine of Rs.2,000/- in default to undergo three months rigorous imprisonment for offence under section 420 IPC and two years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo three months rigorous imprisonment for offence under section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
11.Aggrieved by the conviction and sentence, the present criminal appeal is preferred. As recorded earlier, since the first http://www.judis.nic.in 7 accused who preferred the appeal died, his wife has taken out the application to continue the appeal and the same has been permitted by this Court.
12.The learned counsel for the appellant would submit that the trial Court having acquitted A-2 to A-5 who are perpetrators of the alleged fraudulent challens, ought not to have held A-1 guilty for offence under Sections 218, 420 IPC and Section 13(2) r/w.13(1)(d) of Prevention of Corruption Act, 1988 solely based on the evidence of P.W.84. The trial Court has erred in distinguished the appellant and other accused persons and has held that this appellant stands on a different footing as a public servant and he must have been aware of his duties, particularly, when revenue to the exchequer is involved. Kiragan who is in-charge of the sector-D is not prohibited to countersign the challans presented by the match factories falling under other sectors. In the absence of the Inspectors in-charge of other sectors, for smooth functioning and collection of revenue, Inspectors are expected to countersign the challans presented by the match industries falling under those sectors. This fact has not been taken into consideration properly by the trial Court.
13.The learned counsel would further submit that P.W.11 has spoken about the role of Inspector assigning the responsibility of http://www.judis.nic.in 8 one sector and temporary function of the other sectors in the absence of the concern Inspectors. Pointing out the deposition of some prosecution witnesses who have not implicated the appellant, the trial Court ought to have acquitted A-1 also along with other accused. In the absence of the evidence to show that this appellant had knowledge about the falsification or forgery in the challans presented by the respective match factories he ought not to have been convicted under Section 218 or 420 IPC. In the absence of strong corroboration evidence against the appellant regarding the charge under Sections 218 and 420 IPC, he cannot be convicted for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
14.Further, it is also contended by the learned counsel appearing for the appellant that the Department of Central Excise had collected the difference in excise duty from the 56 match industries, who have illegally utilised the Central Excise Stamps. Therefore, there was no loss to the department. When there is no monetary lose to the department, the ingredient of Section 218, 420 IPC or 13(1) (d) of Prevention of Corruption Act, 1988 does not get attracted. The prosecution has failed to prove that the accused/appellant had deviated from the normal procedure with ulterior motive in countersigning the challans pertaining to his sector as well as the other sectors. When such practice is prevalent during the temporary http://www.judis.nic.in 9 absence of Inspector of other sectors, the trial Court ought not to have presumed that the accused had countersigned those challans with dishonest intention.
15.The learned counsel also pointed out that the case has been registered based on the source information and the very same person has investigated the offence and therefore, the trial gets vitiated. In support of his submission the learned counsel relied upon the recent judgment of the Hon'ble Supreme Court in the case of Mohan Lal Vs. The State of Punjab and also relied upon the judgment in the case of A.Sivaprakash Vs. State of Kerala reported in (2016) 3 MLJ (Crl) 97 (SC) wherein the Hon'ble Supreme Court has held that when there is no evidence to hold that the accused had pecuniary advantage by his misconduct, he cannot be convicted under Section 13(1)(d) (ii) and (iii).
16.Per contra, the learned Special Public Prosecutor appearing for the CBI would submit that 259 challans countersigned by the accused herein, is an undisputed fact. Four of the challans were raised in the name of the defunct factories, that has been spoken by the prosecution witnesses P.W.84 (S.P.Nainamohammed), Superintendent of Central Excise. Ex.P.168 to Ex.P.190, the challans relate to 26 match factories and countersigned by the first accused http://www.judis.nic.in 10 were not the genuine challans emanated from the respective match factories. P.W.3 to P.W.10, P.W.12 to P.W.17, P.W.21, P.W.23, P.W.24, P.W.26, the representatives of the concerned match industries, have categorically deposed that the signature found in the challans were not from any of their representatives. P.W.84, who is the Superintendent, clearly deposed that the accused who is supposed to prepare four copies of TR-6 challans out of which one will be kept in the office, one will be sent to Sub-Treasury and remaining two will be sent to bank, whereas in all the cases where the appellant has signed, he has prepared only one copy of the challans, would go to show that he has dishonestly countersigned in order to cheat the Department and obtained pecuniary advantage under Section 13(1)(d) of Prevention of Corruption Act, 1988.
17.In this case admittedly, 56 factories which are not entitled for a concessional Excise Stamps, have utilized Excise Stamps procured by fraudulent means due to the countersign made by the accused. They have admitted that they have purchased those stamps from private person and had repaid the difference. Prosecution has examined those factories' owners. Therefore, the trial Court has rightly distinguished this accused with that of the other accused and has held him guilty. Subsequent repayment of the difference in stamps duty, will not exonerate this accused. Therefore, the judgment of the trial Court need not be interfered.
http://www.judis.nic.in 11
18.Points for consideration:-
Whether the trial Court is right in holding the appellant guilty of offence under Sections 218, 420 IPC and 13(1)(d) of Prevention of Corruption Act, 1988, while acquitting the other accused for want of proof?
19.The charge against the accused is that he as the Inspector of Central Inspector of Central Excise in Sector -'D' of Aruppukottai Range, Virudhunagar division in Madurai Commissionerate, responsible for signing the challans for purchasing the Central Excise Stamps at subsidised price, for which only few match factories are entitled. The prosecution has indicted the appellant that he has signed 259 challans out of which four challans are in the name of the match factories which are not functioning and 255 challans are in the name of 27 match factories, which have not sought for the excise duty stamps under the challans, in which the appellant has signed.
20.The First Information Report Ex.P.261 indicates that through source information the crime has come to light and P.W.94 (Lourdes Anandan), Inspector of Police, has registered the First Information Report. If strictly viewed, P.W.94 is not an informant. The information has been gathered by him from source which need not be disclosed http://www.judis.nic.in 12 since the identity of the informant is to be protected. Because the information has come from undisclosed source, it cannot be considered as the case has been investigated by the informant himself.
21.The challans which are signed by the accused are marked as Ex.P.1, Ex.P.65 and Ex.P.168 to Ex.P.190 and the signatures of the accused in these challans are marked as Ex.P.166, Ex.P.167, Ex.P. 191 and Ex.P.204. P.W.93 (N.Ravi), handwriting expert attached to Central Forensic Science Laboratory has compared the signature of the accused found in the challans and the admitted signatures of the accused and opined that the signatures found in the challans are that of the accused. Veerarajan (P.W.1), Inspector, Aruppukkottai range in charge of Sector-B, Ravisankar (P.W.2), Inspector, Aruppukkottai range in charge of Sector-E, P.Selvaraj (P.W.11), Inspector, Aruppukkottai range in charge of Sector-C, Soundarajan(P.W.18), Inspector, Aruppukkottai range in charge of Sector-C, N.Jeyaprakash (P.W.83), Inspector, Aruppukkottai range in charge of Sector-E had testified that the challans signed by the accused in respect of the match industries which come under their respective sectors were not brought on record by the accused and the accused not even informed about the signing of the challans which are subject matter of their http://www.judis.nic.in 13 sectors. Therefore, the prosecution has categorically proved through these witnesses that the accused has not only signed challans pertaining to the other sectors, but had not even informed about that to the respective Inspectors, who are in charge of those sectors.
22.Furthermore P.W.84 (Naina Mohammed) Superintendent, Central Excise, Aruppukottai Range in Virudhunagar District has deposed that the accused had not prepared the challans in quadruplicate. Thus, the criminal intention of cheating at inception itself, could be easily seen from the conduct of the accused by countersigning these challans perpetrated to be presented by 27 match factories. The accused has enabled to purchase the yellow Central Excise Stamps. The registers marked as Ex.57 to Ex.59 in which the entries for issuance of challans should have been made, does not reflect the issuance of challans. The prosecution has also let in positive evidence by examining the owners/lessees/Managers of the match factories in whose name the challans were prepared without their knowledge. P.W.3 to P.W.10, P.W.12 to P.W.17, P.W.21, P.W.23, P.W.24 and P.W.26 have deposed that the challans prepared in their factories names, does not belong to their company. The signatures found in the challans were not of their representatives and they have not purchased any stamps as found in the challans. Also, the http://www.judis.nic.in 14 prosecution has examined the actual main users of the challans and they have deposed that the yellow colour Central Excise Stamps were purchased by them in the open market, since there was a scarcity of stamps. Later they have paid the penalty and fine along with differential tax. The prosecution has examined nearly 48 witnesses out of 56 companies which has purchased the yellow Stamps in open market. They have also identified the statement given to P.W.91.
23.In the said circumstances, when there are an overwhelming evidence to indicate that the appellant herein being a public servant and charge of preparing record, with knowledge, has incorrectly signed the challans knowing fully well that the contents of the challans are false. By the act of the appellant the State has incurred loss of more than Rs.5,00,000/-. No doubt, the money has been recovered later, after initiating the criminal prosecution, that does not exonerate the appellant herein. He by his misconduct has allowed unlawful loss to the State to the tune of Rs.5,83,490.50/- and corresponding gain to other persons.
24.In the light of the above facts, this Court finds that there is no merit in the appeal. Hence, this Criminal Appeal is dismissed. The Judgment of conviction and sentence dated 13.04.2009 passed in http://www.judis.nic.in 15 C.C.No.10 of 2003 on the file of the learned Special Judge for C.B.I Cases, Madurai is confirmed. Since the appellant/A.1 is died pending appeal and appeal is pursued by his wife, direction regarding securing the appellant/A.1 to undergo the period of sentence does not arise.
30.10.2018
Index : Yes/No
Internet : Yes/No
cp
To
1.The Special Judge for C.B.I Cases, Madurai.
2.The Inspector of Police,
SPE/CBI/ACB/Chennai,.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
16
DR.G.JAYACHANDRAN, J.
cp
JUDGMENT MADE IN
Crl.A(MD)No.108 of 2009
30.10.2018
http://www.judis.nic.in