Madras High Court
Dr.K.Nagarethinam vs Deputy Superintendent Of Police on 4 September, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.09.2015
CORAM
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.R.C.(MD)No.426 of 2013
and Crl.R.C.(MD)No.427 of 2013
1.Dr.K.Nagarethinam
2.Dr.R.Victor Bakthan ... Petitioners in Crl.RC(MD)No.
426 of 2013
1.D.K.Nagarethinam
2.Dr.R.Victor Bakthan
3.A.Thangaraj Rethinasamy ... Petitioners in Crl.RC(MD)No.
427 of 2013
-vs-
Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Sivagangai.
(Crime No.5/2001) ... Respondent in both the
Crl.RCs.
Crl.RC(MD)No.426 of 2013 filed under Section 397 r/w 401 of the
Criminal Procedure Code, to call for the records pertaining to the order in
Cr.M.P.No.776 of 2009 in C.C.No.11 of 2008 on the file of the Special Judge /
Chief Judicial Magistrate, Sivagangai District dated 26.03.2013 and set aside
the same.
Crl.RC(MD)No.427 of 2013 filed under Section 397 r/w 401 of the
Criminal Procedure Code, to call for the records pertaining to the order in
Cr.M.P.No.642 of 2009 respectively, in C.C.No.12 of 2008 on the file of the
Special Judge / Chief Judicial Magistrate, Sivagangai District dated
26.03.2013 and set aside the same.
Crl.R.C.(MD)No.426 of 2013:
!For petitioners : Mr.N.Karthik Kanna for
first petitioner
Mr.T.Lajapathi Roy for
second petitioner
^For respondent : Mr.P.Kandasamy,
Govt.Advocate(Crl.Side)
Crl.R.C.(MD)No.427 of 2013:
For petitioners : Mr.N.Karthik Kanna for
first petitioner
Mr.T.Lajapathi Roy for
second and third petitioners
For respondent : Mr.P.Kandasamy,
Govt.Advocate(Crl.Side)
COMMON ORDER
Crl.RC(MD)No.426 of 2013 is filed against the order in Cr.M.P.No.776 of 2009 in C.C.No.11 of 2008 on the file of the Special Judge / Chief Judicial Magistrate, Sivagangai District dated 26.03.2013, and Crl.RC(MD)No.427 of 2013 is filed against the order in Cr.M.P.No.642 of 2009 in C.C.No.12 of 2008 on the file of the Special Judge / Chief Judicial Magistrate, Sivagangai District dated 26.03.2013.
2.Dr.K.Nagarethinam and R.Victor Bakthan are the petitioners in Crl.RC.(MD)No.426 of 2013. These two petitioners are shown as petitioners in Crl.RC.(MD)No.427 of 2013 along with one Thangaraj Rethinasamy.
3.Crl.RC.(MD)No.426 of 2015 has been filed against the dismissal of the discharge petition in Cr.M.P.No.776 of 2009 in C.C.No.11 of 2008 on the file of the Special Judge / Chief Judicial Magistrate, Sivagangai District dated 26.03.2013.
4.Crl.RC.(MD)No.427 of 2015 has been filed against the dismissal of the discharge petition in Cr.M.P.No.642 of 2009 in C.C.No.12 of 2008 on the file of the Special Judge / Chief Judicial Magistrate, Sivagangai District dated 26.03.2013.
Facts in brief:
5.The case of the prosecution is that in the year 1994, the Government introduced a scheme for the benefit of Adi Dravidar Community. Under the scheme, a Committee was constituted which was headed by Mr.Gopalan who was the Deputy Director of the District Live Stock Farm, Sivagangai District. The first petitioner Nagarethinam was working as Assistant Director of Animal Husbandry, Karaikudi from 01.09.1995 to 29.09.1996, with Dr.Victor Bakthan, who was working as a Specialist in Regional Joint Director Office from 10.07.1995 to 27.09.1996. The third petitioner Thangaraj Rethinasamy was working as Assistant Director of Animal Decease Intelligence Unit during 1996 at Sivagangai.
5.1.Under the Scheme, the Committee should purchase 4 months old heifer calves and rear them in the District Farm of Chettinadu up to the age of 24 months or six months of pregnancy whichever is earlier, which shall be distributed to Adi Dravidar beneficiaries at 50% subsidy. The petitioners were in-charge of implementing the Scheme and during the course of implementation, totally 250 calves were made available with the District Live Stock Farm in Chettinadu.
6.The sum and substance of the allegations against these petitioners was that they had been entrusted with the work of purchasing 200 calves each worth Rs.1,500/- for the purpose of distribution to the Adi Dravidar beneficiaries living in and around Chettinadu District Live Stock Farm jurisdiction. It is alleged that in furtherance of their common intention, the petitioners committed breach of trust, cheating, forgery, fabrication of false records and used forged documents as genuine, punishable under Sections 409, 420, 468, 471, 477-A r/w 34 of IPC and Section 13(A)(C) r/w 13(2) of the Prevention of Corruption Act.
7.Various instances are cited and to cite one such example, the Purchase Committee have shown that they have purchased 3 calves from one Mani on 18.08.1995, whereas, only one calf was purchased from him, but vouchers had been created as if 3 calves were purchased for Rs.4,500/-.
8.Another instance cited was that the Purchase Committee is reported to have purchased 1 calf each from one Arumugam, s/o.Praman on 09.08.1995 and from R.S.Sundaram on 02.08.1995, whereas no such persons were found in existence.
9.In C.C.12 of 2008, the Purchase Committee is reported to have purchased 24 calves in the name of Mr.Balu, S/o.Otchathevar and 10 calves in the name of Subbu, S/o.Ayyasamy, whereas no such persons were found in existence.
10.The learned counsel for the revision petitioners contended that already this Court has come to a conclusion that the material relied on by the prosecution are too weak to frame a charge against the persons allegedly involved in the occurrence, that too for an alleged offence that took place in the year 1994, in respect of which charge sheet has been filed only in the year 2008. It is further alleged that with these observations, this Court has allowed the petitions in Crl.RC.Nos.730, 438 and 411 of 2013 by the order dated 06.06.2014, thereby discharging A1 to A3. In Crl.RC.Nos.425 and 439 of 2013 by the order dated 27.06.2014, A1 and A2 were discharged. Pointing out the reasoning given in those revision petitions, it is contended that the dismissal of the discharge petitions deserve to be set aside in respect of these petitioners also.
11.In order to appreciate the contentions raised, it is necessary to look into the duration of investigation and the context in which the occurrence is said to have taken place. In respect of the occurrence which is stated to have taken place in the year 1995, the First Information Report has been registered only in the year 2001. After seven years of the First Information Report having been registered, the final report has been filed on 13.09.2008. By that time, the Head of the Committee, viz. Dr.M.Gopalan, had retired from service even in the year 1996.
12.When the allegation against these petitioners is that they have actually purchased the calves from one Mani, Arumugam and Sundaram, but they were not really persons found in existence, the prosecution wanted to prove this fact by producing the certificate of the Village Administrative Officer stating that no such persons were available in that village. Then the burden shifts on the accused persons to show that those persons are really in existence. When the occurrence is said to have taken place in the year 1995, it is very difficult for the accused persons to prove the existence of those three persons, as persons existed in the year 1995, ie. roughly after two decades.
13.It is relevant to point out that the allegation is that the calves were purchased in an open market. Anybody from any nearby village would have participated in open market in the transaction of selling the calves.
Therefore, it is not possible for the Village Administrative Officer of any particular village to show that there were no such persons in existence.
14.Learned counsel for the revision petitioners also pointed out that there were no complaints of non-receipt of calves from any of the beneficiaries and that in fact, 49 calves were available in excess, of which there were no takers. Impliedly, it is argued that it cannot be a case of no purchase.
15.The fact remains that already some of the petitioners in this case have been ordered to be discharged with a main observation that the trial after long lapse of time would cause serious prejudice to the petitioners. This long delay would operate against the interest of these petitioners also. This observation has been made only with reference to the facts and circumstances of this particular case and also having regard to the nature of the proof required on the side of the prosecution as well as by the defence. Therefore, the Trial Court should have considered the discharge petitions filed by them and should have discharged the accused persons.
16.In the result, these two revision petitions are allowed and the impugned orders passed by the learned Special Judge / Chief Judicial Magistrate, Sivagangai District, in Cr.M.P.No.776 of 2009 in C.C.No.11 of 2008 and in Cr.M.P.No.642 of 2009 in C.C.No.12 of 2008, dated 26.03.2013, dismissing the discharge petitions, are set aside. The petitions in Cr.M.P.No.776 of 2009 in C.C.No.11 of 2008 and in Cr.M.P.No.642 of 2009 in C.C.No.12 of 2008 are allowed and the revision petitioners herein are discharged from the charges levelled against them.
To:
1.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Sivagangai.
2.The Special Judge / Chief Judicial Magistrate, Sivagangai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.