Madras High Court
R.Manoharan Jebaraj Julian vs State Represented By on 28 April, 2010
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/04/2010 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Crl.O.P(MD)No.981 of 2010 and Crl.O.P(MD)No.982 of 2010 and M.P(MD)Nos.1,1, 2 and 2 of 2010 R.Manoharan Jebaraj Julian ... Petitioner in both the petitions Vs 1.State represented by The Inspector of Police, C.C.I.W, Tirunelveli. ... 1st Respondent/ Complainant in both the petitions 2.The Joint Registrar of Co-operative Societies, Tirunelveli. ... 2nd Respondent/ Defacto Complainant in both the petitions (R2 impleaded by order of this Court made in M.P.(MD)Nos.3 and 3 of 2010 in Crl.O.P(MD)Nos.981 and 982 of 2010 dated 28.04.2010) Common Prayer Petitions under Section 482 of the Code of Criminal Procedure, to call for the records relating to the impugned charge sheet laid in C.C.Nos.3 of 2009 and 4 of 2009, on the file of the learned Judicial Magistrate No.II, Tirunelveli and quash the same insofar as the petitioner herein is concerned. !For Petitioner ... Mrs.J.Nisha Banu ^For Respondents ... Mr.S.Muthu Venkatesan, Govt.Advocate (Crl.Side) :COMMON ORDER
These petitions have been filed to call for the records relating to the impugned charge sheet laid in C.C.Nos.3 of 2009 and 4 of 2009, on the file of the learned Judicial Magistrate No.II, Tirunelveli and quash the same insofar as the petitioner herein is concerned.
2. The petitioner was working as Sub Registrar of Co-operative Societies (Public Distribution System) for the period starting from 25.05.2001 to 06.02.2003. The petitioner was also working as the Special Officer of Naduvakurichi Primary Agricultural Bank. On 23.06.2005, the Joint Registrar of Co-operative Societies, Tirunelveli, in and by his proceedings in Na.Ka.No.4879/2005/Tho.Ve.Koo.Va(1) dated 23.06.2005, has initiated the proceedings under Section 81 of Tamil Nadu Co-operative Societies Act, 1983, against the petitioner. On 30.12.2005, the Deputy Director of Prosecution has given an opinion stating that the petitioner cannot be proceeded with under criminal law in view of the fact that the responsibility to verify the loan papers has been fixed upon the Secretary and the loans were disbursed not during the time of the petitioner, coupled with the further fact that some loans were realised. Therefore, recommendation was made stating that there is no intention on the part of the petitioner and there is no material to link the petitioner for initiating criminal action, with the further observation that if the rules and regulations provided, he may be proceeded departmentally.
3. Thereafter, the departmental proceedings was initiated and in and by the order dated 18.10.2006, the Joint Registrar of the Co-operative Societies, has exonerated the petitioner of the charges by dropping them. However, a complaint was given on 04.12.2006 for the alleged offence under Sections 408, 465, 471, 477(A) read with Section 120(b) I.P.C against three other accused. In the said complaint in Cr.No.5 of 2006, the petitioner was made as an accused. In pursuance of the investigation, the charge sheets were filed in C.C.Nos.3 and 4 of 2009 on 29.11.2008, implicating the petitioner.
4. The charges against the petitioner is one punishable under Sections 408, 465, 468, 471, 477(A) read with Section 120(b) I.P.C. on the ground that the petitioner has colluded with the other accused for the sanction and disbursement of the bogus loans in the name of dead and fictitious persons.
5. Challenging the above said proceedings, the present petitions have been filed.
6. Mrs.J.Nisha Banu, learned Counsel for the petitioner submitted that inasmuch as the departmental proceedings have been dropped based upon the very same charge against the petitioner, the proceedings before the criminal Court will have to be quashed as no useful purpose would be served. The learned Counsel further submitted that the finding on facts have been given by the Joint Registrar of Co-operative Societies and the Deputy Director of Prosecution has also given opinion stating that the petitioner need not be proceeded with under the criminal law. Further, she submitted that in view of the fact that the Secretary is the one who is responsible for obtaining as well as the disbursement of the loan, the petitioner cannot be found fault. According to the learned Counsel for the petitioner, admittedly, the petitioner was working between 25.05.2001 to 06.02.2003 having additional in-charge of the Society concerned apart from number of other Societies.
7. The learned Counsel for the petitioner made reliance upon the decision of the Honourable Apex Court in Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and others reported in (2003) 4 Supreme Court Cases 139 and contended that in view of the decision made in a departmental proceedings, the proceedings before the criminal Court shall not be proceeded with.
8. Per contra, the learned Government Advocate (Criminal Side), based upon the counter affidavit submitted that the very fact that the amount has been paid itself would show the complexity of the petitioner. It is submitted that the petitioner being the Special Officer is duty bound to verify the records, but in turn colluded with the other accused in creating the bogus documents. It is also submitted that the mere finding rendered in a departmental proceedings cannot bar the criminal proceedings and therefore, the present petitions will have to be dismissed.
9. Heard the learned Counsel for the petitioner and the learned Government Advocate (Criminal Side) for the respondents.
10. There is no dispute on the present case on hand that the departmental proceedings initiated under Section 81 of the Tamil Nadu Co-operative Societies Act, has ended in favour of the petitioner and the charges against the petitioner have been dropped. The charge under the departmental proceedings and the criminal proceedings are one and the same. There is no other proceedings pending against the petitioner. The petitioner was given additional charge of the Naduvakurichi Primary Agricultural Bank, for the period from 25.05.2001 to 06.02.2003. The allegation involves number of other transactions as well.
11. A perusal of the order passed by the Joint Registrar of Co-operative Societies in the departmental proceedings and the opinion of the Deputy Director of Prosecution would clearly show that the departmental proceedings initiated against the petitioner has been dropped on the ground that the charges against him have not been proved.
12. The learned Counsel for the petitioner submitted that the petitioner's duty is just to verify the Kisan Credit Card which is given once in three years. Therefore, the petitioner cannot be faulted with for the falsification of the records. The learned Counsel further submitted that for the offences alleged against the petitioner, he cannot be roped in.
13. As observed earlier, the charges against the petitioner in the departmental proceedings and before the criminal Court in C.C.Nos.3 and 4 of 2009 are one and the same, they are all pertaining to the same occurrence between 25.05.2001 to 06.02.2003, during which period the petitioner was working as the Special Officer holding the additional charge.
14. The impact and effect of the departmental proceedings on a criminal case has been considered by the Honourable Apex Court in P.S.Rajya v. State of Bihar [1996 Supreme Court Cases (Cri) 897], wherein it is observed as follows:
"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. ....
20. At the risk of repetition, we may state that the charge had not been proved and on that basis the appellant was cleared of departmental enquiry. In this connection, we may also usefully cite a decision of this Court in State of Haryana v. Bhajan Lal [1992 Supp(1) SCC 335]. This Court after considering almost all earlier decisions has given guidelines relating to the exercise of the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code of Criminal Procedure for quashing an FIR or a complaint. This Court observed as follows:
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
15. Similarly, the Honourable Apex Court in Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and others reported in (2003) 4 Supreme Court Cases 139, has observed as follows:
"13. In view of the findings recorded by us, the learned Magistrate has to proceed with the trial of the accused-respondents. Shri Ashok Desai, learned Senior Counsel has, however, submitted that the Imports and Exports (Control) Act, 1947 has since been repealed and in the departmental proceedings taken under the aforesaid Act, the Central Government has passed orders in favour of the respondents and, therefore, their trial before the criminal court at this stage would be an exercise in futility. He has placed before us copies of the orders passed by the Additional Director General of Foreign Trade on 16-8-1993 and also by the Appellate Committee Cell, Ministry of Commerce, Government of India on 13-3-1997 by which the appeals preferred by the respondents were allowed by the Appellate Committee and the accused-respondents were exonerated. Having regard to the material existing against the respondents and the reasons and findings given in the aforesaid orders, we are of the opinion that no useful purpose would be served by the trial of the accused-respondents in the criminal court at this stage. The proceedings of the criminal cases instituted against the accused-respondents on the basis of the complaints filed by the Deputy Chief Controller of Imports and Exports are, therefore, quashed."
16. It is not in dispute that the witnesses in both the cases are the same. It is, no doubt, true that the acquittal in the criminal proceedings cannot be a bar for the departmental proceedings. However, an order exonerating the delinquent officer in a full fledged departmental proceedings will have a bearing on the criminal cases. Further, it is seen that the very same defacto complainant is the one who has passed the order exonerating the petitioner in a departmental proceedings. The complaint was given on 04.12.2006 in which the petitioner's name was not found. The final order in the departmental proceedings was passed on 18.10.2006. The charge sheet was filed thereafter on 29.11.2008. There is no indication that at the time of filing of the charge sheet, the order passed on 18.10.2006 has been taken into consideration. Probably had the document been considered, the petitioner's name would not have been found as an accused in the charge sheet.
17. A mere negligence on the part of the petitioner even assuming that it is true, cannot be a ground to substantiate the charges levelled against the petitioner for the alleged offences punishable under Sections 408, 465, 468, 471, 477(A) read with Section 120(b) I.P.C.
18. Therefore, on consideration of the above said facts, this Court is of the opinion that no useful purpose would be served by allowing the trial to be proceeded in C.C.Nos.3 and 4 of 2009 on the file of the learned Judicial Magistrate No.II, Tirunelveli.
19. In the result, Crl.O.P(MD)Nos.981 and 982 of 2010 are allowed and the proceedings in C.C.Nos.3 and 4 of 2009 on the file of the learned Judicial Magistrate No.II, Tirunelveli, are hereby quashed insofar as the petitioner herein is concerned. Consequently, the connected Miscellaneous Petitions are closed. It is made clear that the order passed by this Court is only restricted to the petitioner alone considering the fact that the charges levelled against the other accused and the facts involved are totally different. Hence, the trial Court is directed to proceed with the other accused without being influenced by the order passed by this Court in accordance with law.
rsb TO
1.The Judicial Magistrate No.II, Tirunelveli.
2.The Inspector of Police, C.C.I.W, Tirunelveli.