Madras High Court
Gunasekaran vs / on 11 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.437 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04.07.2022 Pronounced on : 11.07.2022
Coram::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.R.C No.437 of 2015
Gunasekaran,
S/o.Lakshmana Reddiyar,
Melvanakkampadi,
Chengam Taluk,
Thiruvannamalai District. ... Petitioner/Accused
/versus/
The State Rep., by
Inspector of Police,
C.C.I.W., C.I.D.,
Thiruvannamalai. ... Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 read with 401 of
Cr.P.C., to call for the entire records of the judgement rendered by the Learned 1 st
Additional District Sessions Judge, Vellore in C.A.No.9 of 2010 dated 05.03.2015
in C.C.No.1 of 2009, Judicial Magistrate-II, Vellore and set aside the same.
For Petitioner : Mr.D.Rajagopal
For Respondent : Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
ORDER
_____________ Page No.1/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 Mr.Gunasekaran - the Revision Petitioner herein served as Secretary in Melpallipattu Primary Agricultural Co-operative Society from 09/06/1988 to 13/02/2002. Mr.Rajendra Prasad, Deputy Registrar of Thiruvannamalai Co- operative Societies issued proceedings dated 29/02/2008 under Section 81 of the Tamil Nadu Co-operative Societies Act appointing Mr.Ramalingam, the Field Officer to conduct enquiry regarding irregularities in Melpallipattu Primary Agricultural Co-operative Society. On completion of enquiry, said Ramalingam submitted his report dated 05/06/2008. His report concluded, “Mr.Gunasekaran while serving as the Secretary of the said Society was in charge of maintaining daily accounts, documents of the Society and responsible to supervise the employees and protect the Society interest. He misusing the trust, falsified accounts, forged signatures of the deposit holders and misappropriated a sum of Rs.2,94,202.80”. The enquiry report, under 5 different heads classified the act of crime committed by the then Secretary of the Society.
2. A complaint along with the enquiry report was forwarded to the Superintendent of Police, C.C.I.W-C.I.D to take necessary action. On receipt of the complaint, F.I.R in Crime No.5/2008 under Sections 408 and 477-A of I.P.C was _____________ Page No.2/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 registered and taken up for investigation.
3. On completion of investigation, 3 final Reports were filed against Gunasekaran and same taken on file by the Judicial Magistrate-II, Vellore and numbered as C.C.No.1/2009, C.C.No.2/2009 and C.C.No.3/2009.
4. In C.C.No.01/2009 the charges against Gunasekaran was for the offences under sections 408 I.P.C and 477(A) I.P.C in connection with withdrawal of Rs.25,000/- and Rs.16,000/- as loan from the Fixed Deposits made by Kamatchi and Divya respectively, without their knowledge and consent. Falsifying the records and forging valuable security.
5. The Trial Court convicted and sentenced the accused to undergo six months R.I and to pay fine of Rs.500/- in default to undergo S.I for three months for each offence and ordered that the sentences shall run concurrently.
6. Aggrieved by the said conviction and sentence, the appeal before _____________ Page No.3/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 the I Additional District and Sessions Judge, Vellore was filed in C.A.No.09/2010 and same was dismissed on 05/03/2015.
7. In this revision petition, the specific ground challenging the correctness and legality of the Appellate Court judgment in C.A.No.9/2010 confirming the judgment in C.C.No.1/2009 are:-
On the date of suspension (13/02/2002) as per the instruction of the Special Officer, he handed over the charge to one Kuppusamy ( DW-1).On that day there was no charge against him nor any complaint of misappropriation of the Fixed Deposit money of Kamachi (PW-2). Neither PW-2 in his deposition stated that his fixed deposit money was misappropriated. He has positively stated that he made a fixed deposit of Rs.40,000/- in the society and on maturity after 5 years he got back the money with principal and interest. He was told during the enquiry by the Co-operative Society Department Officer that Rs.25,000/- was withdrawn from his FD as loan. He was not shown any document during the said enquiry except his FD receipts. He does not know to read or write. During the enquiry he was asked to sign in Ex.P-4 and he is not aware what is written in Ex.P-4. _____________ Page No.4/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015
8. The prosecution failed to produce the vouchers and connected documents in relation to the alleged misappropriation of funds and falsification of accounts. Further, the misappropriation alleged to have taken place on 18/12/1997 as per the entry in the day book. If so, the President who has counter signed the said entry in the day book is also liable for misappropriation. To convict under section 408 I.P.C, the prosecution has to prove the entrustment. In this case no proof of entrustment.
9. Per contra, the Learned Government Advocate (Criminal side) for the respondent submitted that, the petitioner was given adequate opportunity by the enquiry officer (P.W-3) who gave the report Ex.P-8. The petitioner failed to participate in the enquiry under Section 81 of Tamil Nadu Co-operative Society Act. The Appellate Court has considered this ground and after referring the deposition of P.W-3 and Ex.D-1 the requisition letter of the accused to permit him to peruse the documents, the Appellate Court has concluded that the petitioner after knowing about the enquiry pending against him had sought for documents and in spite of permitting him to peruse the documents, he did not participate in _____________ Page No.5/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 the enquiry. The Trial Court as well as the Appellate Court on proper appreciation of the evidence had rightly arrived at the conclusion that the false entries found in the day book which was in possession and custody of the petitioner. The accused as Secretary with intention to defraud the society had made false entries in the day book and fabricated the accounts.
10. Heard the Learned Counsel for the petitioner and the Learned Government Advocate (Crl.Side) for the respondent. Records were called and perused.
11. The petitioner was tried for offences under section 408 and 477 A of I.P.C.
12. To prove the charges, the prosecution has examined four witnesses (P.W.1 to P.W.4) and 9 documents were marked. On the side of the defence, two witnesses were examined and marked one exhibit. During the cross examination of P.W.3, Ramalingam, the prosecution relies upon FD receipts marked as Ex.P.3. The entry made in the day book between 09.09.1997 and _____________ Page No.6/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 18.04.1998 is marked as Ex.P.5 and subsequently, in the day book entry between 20.04.1998 and 19.11.1998 is marked as Ex.P.7. These two entires which are in respect of alleged loan from FD of Kamatchi and Divya respectively. Since Divya not examined, the trial Court had disbelieved the case of the prosecution in respect of advance of Rs.16,000/- availed from the FD of Divya. However, the trial Court as well as Appellate Court relying upon Ex.P.5, the entry of payment of advance of Rs.25,000/- from the FD of Ms.Kamatchi held that the said entry is made fraudulently to falsify the accounts.
13. The contention of the petitioner/accused is that to attract the offence under Section 408 of I.P.C there must be entrustment to clerk or servant. and the said clerk or servant must have dominion over the property and should have been committed criminal breach of trust.
14. The definition of Criminal breach of trust also emphasis the entrustment as a pre-requisite. In the absence of entrustment of any property whatsoever and absence of proof that the petitioner had dominion over that property, the petitioner cannot be held guilty for offence under Section 408 of _____________ Page No.7/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 I.P.C.
15. The Learned Counsel appearing for the petitioner states that a general statement of P.W.1 & PW.3 that the responsible to maintain the register was entrusted to the petitioner/accused as the Secretary of the Society will not be sufficient to punish the petitioner for the alleged false entries made in the day book. Even assuming as Secretary, the petitioner had dominion over the day book, such dominion had seized from 13.06.2002, the day on which he was placed under suspension and all the records were handed over to D.W.1. Further, who was the author of the entry not been ascertained beyond doubt through scientific evidence.
16. This Court, on reading of Section 408 of I.P.C., there is force in the submission of the learned Counsel appearing for the petitioner. Regarding Section 477-A of I.P.C, it relates to falsification of accounts by a clerk, officer or servant who have been employed or acting in that capacity of a clerk, officer or servant. To punish a person under Section 477-A of I.P.C., it must be proved that there was alteration, mutilation, destroy or falsification or the record or valuable security. Then again, in this connection purely based on Ex.P.9, the report of the _____________ Page No.8/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 enquiry conducted by P.W.3, the Courts below had held that through Ex.P.3, Ex.P.5 and the evidence of P.W.2, the falsification of account and defraud of Rs.25,000/- proved.
17. Ex.P.5 is the entry in the day book which is at page No.85. Ex.P.3 is the FD receipt. The scrutiny of Ex.P.3 & Ex.P.5 indicates that P.W.2 Kamatchi had deposited Rs.40,000/- on 27.02.1997 which is reflected in Ex.P.3 receipt. The entry in day book dated 18.12.1997 which is marked as Ex.P.5, we find that Rs.25,000/- from out of above said FD been given as loan to Kamatchi. The said Kamatchi been examined as P.W.2. She, in her evidence stated that, she did not received any loan from her FD on any date. She received back principal and interest on maturity of fixed deposit. While so, it is necessary on the part of the prosecution to prove that the entry made in Ex.P.5 was by the accused and by making such false entry in day book, he has received money. There is no corresponding voucher to support the above allegation and there is no conclusive proof that the entry found in Ex.P.5 were made by the petitioner/accused. On presumption that during the relevant point of time, he was the Secretary and responsible for the custody of the day book, such averments is made. No staff _____________ Page No.9/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 working during the relevant point of time had deposed that the disputed entires made in the day book was written by the accused. The statement of witnesses recorded by P.W.3 during the disciplinary enquiry cannot be substantive evidence to convict the petitioner/accused.
18. For the reason stated above, this Court finds that the guilty of the petitioner/accused not proved beyond doubt. The Court below had given their finding on surmises. Hence, this Criminal Revision Petition is allowed. The judgment passed by the 1st Additional District and Session Judge, Vellore in C.A.No.9 of 2010 dated 05.03.2015 in C.C.No.1/2009 is hereby set aside. Fine amount paid if any, shall be refunded to the petitioner. Bail bond executed shall stand discharged.
11.07.2022
Index :Yes/No.
Internet :Yes/No.
Speaking order/Non-speaking order
bsm
To,
1.The Additional District Sessions Judge, Vellore. _____________ Page No.10/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015
2.The Judicial Magistrate-II, Vellore.
3.The Inspector of Police, C.C.I.W., C.I.D, Thiruvannamalai.
4.The Public Prosecutor, High Court, Madras.
_____________ Page No.11/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.437 of 2015 Dr.G.JAYACHANDRAN,J.
bsm Pre-delivery order made in Crl.R.C No.437 of 2015 11.07.2022 _____________ Page No.12/12 https://www.mhc.tn.gov.in/judis