Madras High Court
Dr.P.Harivasagam vs State Rep on 29 February, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.Nos.312 of 2014 & 78 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.02.2024
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.Nos.312 of 2014 and 78 of 2015
1.Dr.P.Harivasagam
2.M.G.Sekhar Appellants in Crl.A.No.312/2014 /
Respondents in Crl.A.No.78/2015
Vs.
State rep., by,
The Inspector of Police,
SPE/CBI/ACB/Chennai.
R.C. No.47(A) of 2009 Respondent in Crl.A.Nos.312/2014 /
Appellant in Crl.A.No.78/2015
PRAYER: Criminal Appeal No.312 of 2014 is filed under Section 374 of
Cr.P.C., to set aside the conviction and sentence imposed by the learned XII
Additional Special Judge for CBI Cases, Chennai, in C.C.No.13 of 2012
dated 27.05.2014.
Criminal Appeal No.78 of 2015 is filed under Section 378 of Cr.P.C.,
to set aside the conviction and sentence imposed by the learned XII
Additional Special Judge for CBI Cases, Chennai, in C.C.No.13 of 2012
dated 27.05.2014.
1/19
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.312 of 2014 & 78 of 2015
For Appellants in
Crl.A.No.312/2014 &
Respondents in
Crl.A.No.78/2015 : Mr.R.Rajarathinam, Senior Counsel
assisted by Mr.R.Sasikumar
For Respondent
in Crl.A.Nos.312/2014 &
appellant in
Crl.A.Nos.78/2015 : Mr.K.Srinivasan,
Special Public Prosecutor for CBI cases
COMMON JUDGMENT
Challenging the judgment of conviction and sentence dated 27.5.2014, rendered by the XII Additional Special Judge for CBI Cases, Chennai in C.C.No.13 of 2012 for the offence punishable under Section 420IPC, A1 and A2 have filed Criminal Appeal No.312 of 2014 and seeking to set aside their acquittal insofar as offence punishable under Section 120-B read with Section 420 IPC, the State has preferred Criminal Appeal No.78 of 2015.
2. Facts that are relevant for deciding the present Appeals, in a 2/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 nutshell, are as under:-
i) On an anonymous complaint alleged to have been received by the Inspector of Police, CBI, ACB, Chennai and the source report received from the CBI, a preliminary enquiry appears to have been made by the Inspector of Police, CBI, ACB, Chennai and such enquiry revealed the following aspects.
ii) Initially, A1 was the Chairman of M/s.Sri.Harivasagam Charitable Trust and M/s.V.K.K.Vijayan Engineering College. During 2005, A2 became the Chairman. The Trust had obtained NOC from the Government of Tamil Nadu for commencing an Engineering College in the name of M/s.V.K.K.Vijayan Engineering College for the academic year 1998-99.
iii) After getting recommendation of the syndicate for affiliation from Madras University, the Trust had submitted an application to the AICTE, New Delhi, on 6.10.1997 for commencing a new Technical Institution from 1998-99. Finding some serious deficiencies, the AICTE had rejected the application for the session 1998-99. Subsequently, on the basis of a direction obtained by the appellants from this Court, AICTE, Chennai, had sent a letter to the Adviser (UG/PG), AICTE, New Delhi on 11.10.2004 to 3/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 consider the case and the Adviser had sent a letter dated 10.2.2005 for issuing Letter of Intent to the Trust for establishment of the College for the block year 2005-2008.
iv) Subsequently, on 11.4.2005, an Expert Committee inspected the college and observed some serious deficiencies and based on that, the Appraisal Committee had rejected the proposal. The Trust had appealed before the Council for a re-visit and accordingly, on 10.7.2005, a re-visit was made by another Expert Committee and observed large number of deficiencies including non filling of the post of Principal.
v) The appellants undertook to rectify the deficiencies and sought for favourable recommendation. Subsequently, on 20.07.2005, an Appraisal Committee consisting of Prof.P.Venkatewara Rao, Prof.K.Madhu Murthy and A3-Dr.Nagin Chand, though initially rejected the proposal, later, solely on the basis of appeal letter dated 10.7.2005 submitted by the Trust, gave a favourable recommendation without considering the negative report of the Expert Committee.
vi) Dr. Bala Prabhakar, Assistant Director, Bureau (UG/PF) of AICTE, Headquarters had initiated a note file on 25.7.2005 and had also 4/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 noted that the counseling for admission to Engineering Institution in the State of Tamil Nadu is scheduled to start from 27.07.2005 and in view of the urgency of the situation, the Competent Authority was requested to take a view and give directions accordingly.
vii) Dr.R.A.Yadav, the then Vice Chairman had approved the proposal on 27.07.2005 and had directed to issue letter of Approval immediately on 27.07.2005, citing the urgency and also with a direction to seek ratification of the EC Sub Committee after the issue of Letter of Approval. Subsequently, Prof. P.Venkateswara Rao, Adviser, had sent a letter on the same day to the Government of Tamil Nadu communicating the approval for the establishment of M/s. V.K.K.Vijayan Engineering College for the academic year 2005-2006 subject to fulfilling the conditions of AICTE. However, the college did not comply with the instructions given by the Expert Committee during 2005 at the time of recommending approval for establishing a new college.
viii) A1 and A2, in connivance with the public servants cheated the AICTE by misrepresenting various facts including lack of proper infrastructure, faculties, etc. and managed to obtain recognition for M/s. 5/19
https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 V.K.K.Vijayan Engineering College. They also obtained subsequent periodical extension of approval for the said institution without fulfilling the norms prescribed by AICTE. Sufficient documentary and oral evidences available to establish the role played by A-3 Dr.Nagin Chand.
ix) On completion of investigation, the Inspector of Police, CBI, ACB, Chennai, had filed final report against A1-Dr.P.Harivasagam, Founder/Chairman of M/s.Sri.Harivasagam Charitable Trust, which runs M/s.V.K.K.Vijayan Engineering College and A2-Shri.M.G.Sekar, Present Chairman of M/s.Sri.Harivasagam Charitable Trust as well as M/s.V.K.K.Vijayan Engineering College, who are the appellants herein and against A3-Dr.Nagin Chand, Scientist-E.2, CSIR, Ghaziabad, Uttar Pradesh, a public servant serving as an Adviser to All India Council for Technical Education (AICTE), New Delhi for the offences punishable under Section 120-B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
3. Having taken the final report on file, the Trial Court issued summons to the accused and on their appearance, copies of documents 6/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 concerned with the case were produced to them as contemplated under Section 207 Cr.P.C and on perusal of records, charges were framed against the accused. Accordingly, A1 to A3 stood charged under Section 120-B IPC and 420 IPC while A3 stood charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. On being questioned about the incriminating materials, the accused denied the charges and pleaded not guilty.
4. On the side of the prosecution, P.Ws.1 to 38 were examined and Exs.P1 to P86 were marked. On the side of defence, a written statement was filed and Exs.D1 to D3 were marked, however, no oral evidence was let in.
5. After elaborately analysing the oral and documentary evidence, the Trial Court has convicted A1 and A2 alone for the offence punishable under Section 420 IPC and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- each, in default, to undergo simple imprisonment for three months, while acquitting them for the offence punishable under Section 120-B IPC and acquitting A3 from all the charges. 7/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 Aggrieved against the same, the present Criminal Appeals viz., Crl.A.No.312 of 2014 has been filed by A1 and A2 and Crl.A.No.78 of 2015 has been filed by the State.
6. Heard Mr.R.Rajarathinam, learned Senior Counsel, assisted by Mr.R.Sasikumar, learned counsel appearing for the appellants in Crl.A.No.312/2014 and respondents in Crl.A.No.78 of 2015 and Mr.K.Srinivasan, learned Special Public Prosecutor for CBI cases at length and perused the materials available on record.
7. Before proceeding further, it is relevant to note that the appellants/A1 and A2, who are Founder/Chairman of an educational institution and engaged in imparting education to the younger generation, are supposed to be a role model not only to the students, but also to the society, are alleged to have cheated the officials of the affiliating authority viz., AICTE to get approval for running their educational institution without complying with the legal requirements. Such an attitude cannot be viewed very leniently, however, their involvement in the offence needs to be 8/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 established in the manner known to law.
8. The submissions of Mr.R.Rajarathinam, learned Senior Counsel appearing for the appellants are as under:-
i) The appellants are private individuals, who are the Trustees of M/s. Sri Harivasagam Charitable Trust registered in the year 1995 at Madurai. The Trust was started with the noble object of giving education to poor rural students in and around Sriperumbudur, however, due to some financial constraints, they were unable to carry out the construction work as required by AICTE, which resulted in registration of the case against Dr.P.Harivasagam-A1 and M.G.Sekhar-A2, the appellants and an employee of AICTE viz., Dr.Nagin Chand-A3.
ii) The Director General of Council of Scientific and Industrial Research, New Delhi by an order dated 13.02.2011 had accorded sanction to prosecute against A1 to A3, for granting recognition for the establishment of M/s V.K.K. Vijayan Engineering College, No.102, Irungattukottai, Sriperumbudur Taluk without conducting proper inspection/verification of the said college and further they had also periodically extended the recognition to the said institution knowing fully well that the institution did 9/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 not have the necessary infrastructure as per the guidelines and norms of AICTE. After investigation, final report was filed and charges were framed against the accused.
iii)The Trial Judge, finding that the charge against A3 was not proved, had acquitted A3 from all the charges, however found A1 and A2 guilty for the offence under Section 420 IPC and the State had not filed any appeal against A3 challenging the order of his acquittal, however, preferred an appeal against A1 and A2, challenging their acquittal under Section 120-
B of IPC alone. Without challenging the judgment of acquittal passed against A3, the appeal filed by the State against A1 and A2 for acquitting them under Section 120-B of IPC cannot be maintained, especially, when the charge against A1 and A2 is that they have colluded with the official(A3) of AICTE.
iv) There are specific allegations against Harish C.Rao and Venkateshwara Rao and their names finds place in the charge sheet, however, strangely, AICTE has not accorded sanction to prosecute against them and as per the prosecution, they made certain endorsements while granting recognition to run the college by A1 and A2. 10/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015
v) Though there are several arguable points on merits, A1 and A2 are now aged about 71 and 75 respectively and they are suffering with heart ailments and both of them had undergone bypass surgery and thereby, they do not want to pursue the appeal on merits and they would seek for leniency of this Court only on mercy, since they have been convicted only for the offence under Section 420 IPC.
vi) No student was affected due to lack of infrastructure facilities from the academic year 2005-2006 till 2009-2010 and the students had successfully completed their course without any grievance and particularly, the students viz.,P.W.10, PW.11 and P.W.15, who have been examined, had deposed that all of them had secured decent jobs after completion of their education in M/s V.K.K. Vijayan Engineering College.
vii) Other than certain violations in completion of building and other structures, A1 and A2 have not willfully cheated the AICTE and obtained recognition and thereby lenient view may be taken against the conviction.
9. Mr.K.Srinivasan, learned Special Public Prosecutor for CBI Cases 11/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 would submit his arguments as under:-
i) A1 and A2 are Chairman and Trustee of M/s Harivasagam Charitable Trust. They have colluded with the officials of AICTE and managed to obtain recognition by misrepresentation/approval without there being requisite facilities to the said institution knowing fully well that the institution did not have the necessary infrastructure as per the guidelines and norms of AICTE.
ii) After investigation, on 11.04.2005, the Expert Committee had inspected the college and observed serious deficiencies i.e.,lack of infrastructure facilities, shortage of qualified professors and other staff members, qualified Principal to be appointed since the person interacted had refused to sign and represent the college however, the college was run with only one batch of students and as there was lack of facilities, recognition was cancelled.
10. The learned Special Public Prosecutor would fairly admit that the students, who have been examined viz., P.Ws.10, 11 and 15 have stated that they have completed their course in the said college and they have also 12/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 secured placements. He would further admit that no complaint has been received from any of the students. However, he would submit that the trial Court is right in convicting A1 and A2 and though A3 was acquitted by the trial Court, the State has not preferred any appeal against him and thereby, he seeks to allow the appeal filed by the State.
11. The offence alleged against the appellants/A1 and A2, private individuals are two fold, one being cheating or misleading the officials of AICTE to get approval for the educational institution run by them and the other being conspiracy entered by them with A3, a Government Officer and Advisor to AICTE in cheating the officials of AICTE.
12. A perusal of the entire materials and the judgment rendered by the Trial Court would disclose that the prosecution has examined as many as 38 witnesses and produced 86 documents to bring home the guilt of the accused and the Trial Court, after analysing each and every aspect thoroughly, has given a clean chit to A3, the Government Official in respect of the offences punishable under Section 13(2) read with Section 13(1)(d) 13/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 of the Prevention of Corruption Act and apparently, no Appeal has been preferred by the State against the acquittal of A3 and there ends the conspiracy theory attributed by the prosecution to A1 and A2 with A3. Therefore, this Court is of the view that Criminal Appeal No.78 of 2015 filed by the State against the acquittal of A1 and A2 in respect of offence punishable under Section 120-B IPC is liable to be dismissed.
13. What remains is the conviction and sentence imposed against A1 and A2 for the offence punishable under Section 420 IPC, which has been challenged by them in Criminal Appeal No.312 of 2014.
14. Now coming to the Crl.A.No.312 of 2014, it is seen that the appellants/A1 and A2 have been convicted for the offence under Section 420 IPC. An analysis of the entire materials would disclose that A1 and A2 being the Chairman and Trustee of M/s Harivasagam Charitable Trust, had submitted an application for obtaining affiliation from All India Council for Technical Education for commencing a new technical institution in the name of M/s V.K.K. Vijayan Engineering College for 1998-1999 and the 14/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 approval was rejected. Thereafter, the Trust had submitted a rectification report to the AICTE and sought affiliation from AICTE and they have, managed to obtain recognition by misrepresentation/approval without there being requisite facilities and further, AICTE had also periodically extended the recognition to the said institution. It is further seen that on 11.04.2005, the Expert Committee had inspected the College and observed certain serious deficiencies i.e.,lack of infrastructure facilities, shortage of qualified Professors and other staff members, qualified Principal to be appointed.
15. Though the learned Senior Counsel appearing for the appellant had, initially, argued the appeal on merits, ultimately, submitted that the appellants, being more than 70 years old and suffering with many ailments, do not intend to pursue the appeal on merits and they claim only leniency and indulgence of this court on sympathetic grounds.
16. Today, when the matter was taken up for hearing, the appellants appeared in court and filed their individual affidavits seeking leniency. 15/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015
17. This Court perused the affidavits and enquired the appellants. Both of them submitted that only with a noble intention of imparting technical education to the students in the poor rural areas, they had started an Educational Trust and constructed an Engineering College near a village at Sriperumbudur and out of some financial crunch, they were unable to complete the structures and only to continue with the courses, they had approached the Consultants, who had misguided them in getting recognition. They would submit that they have not done anything with intention to cheat anybody and that the students, who have been admitted, have also completed the course successfully and some of them have also been placed in good jobs and that they have spent a lot of money in helping the students to complete the courses in the College and there had been no financial loss to any one. They have also submitted that they are in the dusk of their life. Both of them have contended that they had undergone bypass surgery. They also expressed their remorse and requested for pardoning them and leniency in the sentence.
16/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015
17. Taking into consideration the affidavits filed by the appellants/A1 and A2 and their age and ailments suffered by them, this Court is of the view that some leniency may be warranted in this case. Accordingly, while confirming the conviction rendered by the trial Court against appellants/A1 and A2 for the offence under Section 420 IPC, the sentence of imprisonment imposed on them alone is modified to one of till raising of the Court. However, the fine amount imposed by the trial Court is further enhanced to Rs.50,000/- each. The affidavits filed by the appellants/A1 and A2 shall form part of the Court records.
18. In view of the modified sentence of imprisonment, the appellants/A1 and A2, who are present before this Court, have served the sentence. As the petitioners had already paid the fine amount of Rs.5,000/- imposed on them by the trial Court, the enhanced amount of fine of Rs.50,000/- each shall be paid by the appellants/A1 and A2 to the Tamil Nadu Legal Services Authority, Chennai and the compliance shall be reported on or before 07.03.2024.
17/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015
19. In the result, Criminal Appeal No.312 of 2014 is allowed in part to the above extent and Crl.A.No.78 of 2015 is dismissed.
20. For reporting compliance, list on 07.03.2024.
29.02.2024 raa Index: Yes/No. Internet: Yes/No. To
1. XII Additional Special Judge for CBI Cases, City Civil Court, Chennai -104.
2. The Inspector of Police, SPE/CBI/ACB/Chennai.
3.The Public Prosecutor, High Court, Madras.
18/19 https://www.mhc.tn.gov.in/judis Crl.A.Nos.312 of 2014 & 78 of 2015 A.D.JAGADISH CHANDIRA,J.
raa Crl.A.Nos.312 of 2014 & 78 of 2015 29.02.2024 19/19 https://www.mhc.tn.gov.in/judis