Madras High Court
B.Muralidharan vs State Rep. By on 5 September, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 05.09.2014 Coram : THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.O.P.Nos.27503 & 27504 of 2010 1.B.Muralidharan 2.T.Nadimuthu .. petitioners in Crl.OP.27503/2010 A.Natarajan .. petitioner in Crl.OP.27504/2010 V. State rep. by The Deputy Superintendent of Police Organized Unit II, CBCID, Chennai-3. .. respondent in both the Crl.OP Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the records to quash the final report in CC.No.10731 of 2010 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai. For Petitioners : Mr.Abudu Kumar Rajarathinam For respondent : Mr.C.Emalias. COMMON ORDER
Both the criminal original petitions are filed by A1 and A2 and A3 to quash the proceedings in CC.No.10731/1010 on the file of XI Metropolitan Magistrate, Saidapet, Chennai, arising out of Cr.No.1 of 2009 registered for the offences under Section 406, 420 IPC and Section 7 r/w Section 3 of Essential commodities Act Act, 1955 r/w. Clause 3 of the Fertilizer (Movement Control) Order 1973 and Clause 25 of Fertilizer (Control) Order, 1985.
2.The case was initially registered by the Inspector of Police, Pudukottai Unit, and then transferred to Deputy Superintendent of Police, OCU-II, CBCID, Chennai who after completion of the investigation filed the final report on 09.10.2010 for the offence under Section 120-B r/w.409 IPC, Section 9 of Essential Commodities Act 1955 r/w.35 (1)(a)&(b) of FCO 1985, Section 7(1)(a)(ii) r/w.3(2)(d) of Essential Commodities Act 1955 r/w.Clause 4, 7 and 8 (2) and 25(1) Fertilizer (Control) Order 1985 and clause 3 of Fertilizer (Movement Control) Order 1973.
3.The case was registered against totally 15 accused and the petitioners herein are arrayed as A1 to A3 in the same. The charges laid against the petitioners and others are in connection with sale of Muriate of Potash Fertilizer (MOP) imported under the subsidy granted by the Government of India from RCF, IPL, Zuari and GNFE. According to the prosecution, the accused 1 to 12, who were entrusted with the MOP, to sell, supply or distribute to the dealers/farmers for their usage in agriculture as fertilizer for the purpose of increasing the fertility of the soil and production, indulged in illegal transaction of sale by diverting and exporting the same for non agriculture purpose that too out of State by creating supportive bills, stock register etc., with an intention to obtain wrongful gain. It is also their case that the sale transaction is effected in such a manner not from their respective place of business, but directly from the godowns at Chennai. Thereafter, the same were transported to other States in violation of the terms and conditions of the licence and in violation of the Fertilizer Movement Control Order (FMCO) and Fertilizer Control Order(FMO) which is punishable under the provisions of Essential Commodities Act.
4.Insofar as the petitioners/A1 to A3 are concerned, the specific charges levelled against them are that they are the parties to the act of conspiracy between A1 to A12. A1 as the wholesale dealer for MOP fertilizer and A2 and A3 as power agents of A1, were authorised to sell fertilizer from Pudukkotai and Chennai, but they sold major quantity of MOP from Thoothukudi and from importers godown at Chennai to A12 Srikanth and Nagesh firm vide bill between 05.04.2008 and 20.06.2008 and furnished false information through stock register and sale bills to agriculture authorities. A12/Srikanth & Nagesh Firm inturn sold it to A13 chemicals company for non agricultural purpose and A13 transported the same with the help of A14 and A15 to Andhra Pradesh.
5.Whereas, according to the petitioners, all the transactions undertaken by the accused are genuine under regular bills and the same was found to be validly sold by the agricultural officers and the inspecting authorities and there is no violation of FCO or FMCO and the sale transaction effected in favour of Srikanth and Nagesh firm, who is also license dealer, is but legal and permissible and they had nothing to do with the sale transaction between A12 and A13 and in transporting the fertilizer by A13 to other States (i.e,) outside Tamil Nadu. It is also their case that the sale transaction were effected from Pudukottai, whereas the stock was taken delivery from importers godown at Chennai by the purchaser at Chennai and such it is not in violation of the license condition of FMO, so as to attract the penal provisions under the Essential Commodities Act.
6.Per contra, the learned Additional Public Prosecutor / the complainant respondent police would by relying on the statement of the witnesses, seriously oppose the relief sought for herein.
7.Heard the rival submission made on both sides and perused the records.
8.As already stated, the final report filed against the accused is in respect of sale of MOP concessional fertilizer by A1 to A3 to A12 during April to June 2008. A1 is admittedly licensed wholesale fertilizer dealer of Pudukottai and A2 and A3 are his authorised power agents to carry on same business on his behalf. The wholesale dealer has, during the relevant point of time received huge quantity of MOP from RCF, IPL, Zuari and GNFC by availing subsidy granted by the Central Government for agricultural purpose. The major quantity of the MOP so received was sold to A12/Srikanth & Nagesh Firm at Chennai. The allegations raised in the charge sheet against the petitioners herein are that they conspired together with A4 to A15 prior to 15.3.08 at Chennai to indulge in illegal transaction of MOP fertilizer for non agricultural purpose by creating supportive bills, stock register etc., with an intention to obtain wrongful gain and in pursuance of such criminal conspiracy A1 to A3 being license holder entrusted by the Government with the task of supplying the subsidised fertilizer to farmers at their respective sale points at the subsidized rate, committed criminal breach of trust against the Government in respect of subsidised fertilizer by dishonestly selling major quantity of MOP fertilizer in violation of the orders of the Government and caused monetary loss to the tune of Rs.4crores between 20.03.2008 and 28.06.2008. The manner in which A1 to A3 committed criminal breach of trust in pursuance of the criminal conspiracy and violated the conditions in FCO and FMCO is as detailed above. In short, the allegations raised against the petitioners are that the parties entered into criminal conspiracy prior to 31.03.2008 at Chennai and the parties committed the act of criminal breach of trust in respect of subsidized MOP fertilizer.
9.As far as the act of conspiracy is concerned, there is absolutely no material available herein. The main allegations raised against the petitioners and others are sought to be supported by the official witnesses in the cadre of Principal Secretary to Government, Housing & Urban Development Department, Secretariat, Chennai-9; District Collector, Pudukottai; Joint Director of Agriculture, Ezhilagam, Chepauk, Chennai; Assistant Director of Agriculture, Thiruvallur District; Agricultural Officers, Deputy Director of Agriculture etc., the independent witnesses have spoken only about the inspection of the godown by the agricultural authorities and about the sale and despatch details and the transport of the same. Though no direct evidence may be available and circumstantial evidence may be looked into to prove the act of conspiracy, there is also no statement available herein to infer an act of conspiracy between the parties prior to 31.03.2008 either at Chennai or at any other place for effecting illegal transaction during April and June 2008. In the absence of any such materials, no act of conspiracy can be said to have been prima facie made out by the prosecution. In this content, it is useful to refer to the observation of the Hon'ble Apex Court (2012) 9 SCC 512 CBI, Hyderabad V. K.Naryana Rao in para 24 that ingredients of criminal conspiracy are that there should be an agreement between the persons who are allegedly to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, an offence of conspiracy cannot be deemed to have been established, even if some acts are proved to have been committed. It must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy and such act of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. The present case, for want of such cogent and acceptable evidences is likely to fail in respect of the offence for an act of conspiracy.
10.Regarding the act of criminal breach of trust is concerned the ingredients of the same is, as rightly argued by the learned counsel for the petitioners, also missing in the present case. The main ingredient of the act of criminal breach of trust i.e., entrustment of the property or any domain over the property is absolutely missing herein for the simple reason that the petitioners are the only purchasers of MOP fertilizer at subsidized rate. As such, the prosecution failed to make out any case for the offences under Sections 409 r/w.120-B IPC.
11.As far as main allegations are concerned before going into the same, the first aspect to be considered herein is that originally the case was registered against the individuals as well as agricultural authorities and the allegations raised therein was that the individuals with the connivance, of the officials entered into illegal transaction for non agricultural purpose and transported the fertilizers to other States. In addition to criminal prosecution initiated on the basis of the complaint given by the Agricultural Production Commissioner and Principal Secretary to Govt of Tamil Nadu, departmental enquiry was also initiated against the officials for the following misconduct. (i)they failed to monitor the transport of major quantity of MOP from Pudukottai to other district. (ii)they failed to make periodical inspection of the stock of Pudukottai District at the place of wholesale fertilizer dealers; (iii)they failed to check the sale of 670 metric tonnes of MOP fertilizer from A1/Natarjan to A12/Srikanth & Nagesh firm within the short span during 2008. (iv)failure to periodically check the transport of the same to other Districts led to the transport of the same to other State through non agricultural company.
12.However, the charges levelled against the officials were by accepting the explanation given by them and after due enquiry, found to be not made out. The Enquiry Officer has after due enquiry found that the sale of MOP fertilizer to other District was after satisfying the requirement of Pudukottai District and the sale transactions were effected in accordance with FCO and other legal procedure, as evident from stock registers. The periodical inspections were held in the fertilizer godowns and there was no failure to discharge duties on the part of the officials and as the receipt of MOP was in excess at Pudukottai District, the question of restricting the movement of fertilizers by the quality control staff does not arise herein. The sale transactions effected by Natarajan were after duly submitting O-Form and after duly obtaining permission etc.,
13.Be that as it may, the sale transaction in question were between A1 to A3 and A12 on one hand and A12 and A13 on the other hand. As far as the sale transaction effected by A1 to A3 and A12 are concerned, there is no illegality attached to the same. It is no body's case that there was no transaction between A1 to A3 and A12. It is the specific case of the prosecution that A1 to A3 sold it to A12 who in turn sold it to A13 Chemical Company. Even according to the prosecution, the sale transaction between A1 and A3 and A12 is in order. As a matter of fact, the respondent/investigating officer in Para 9 of his counter clearly admitted that selling fertilizers to other Districts/dealers is not the charge. The plain reading of the allegations raised in the final report and the averments raised in the counter would only reveal that the charges raised against A1 to A3 are that they - A1 to A3 sold the fertilizers from a place other than the authorised place. It is the case for the prosecution that Pudukottai is the authorised place to sell the fertilizers as noted in Form-A1 and license was issued to the petitioners/accused to sell the fertilizers only at the place mentioned at sale point in Form-A1. Whereas, A1 and A2 sold MOP fertilizers directly from Tuticorin to Chennai and from Chennai godown, which is not the place authorised for sale of MOP as per the license notified by the authority.
14.In this regard the document to be looked into is Form-A2, license pertaining to the period between 2007 and 2010. As per the particulars mentioned in the same the place of business is shown as Pudukottai and the place of business as well as storage is shown as Pudukottai. There is no indication in Form-A2, that the sale point is only at Pudukottai. It is so mentioned in Form-A2 pertaining to the period between 2010 2013. It is mentioned in clause 4 of the Form-2 for the subsequent period that the place of Business for sale and storage is at Pudukottai, which is not so in Form-A2 relating to the period between 2007 - 2010. As rightly pointed out by the learned counsel for the petitioners, the sale point for the period as above mentioned need not be only at Pudukottai can also be inferred from the fact that the petitioners are permitted to have branch offices at various places other than Pudukottai and stocks are permitted to be stored at other branches. If that is so, the allegation that the sale point shall be only at Pudukottai on the basis of available records has no basis. Therefore the statement of the individual witnesses that there is no stock transported from Pudukottai godown, is of no help to the prosecution. The facts and the materials made available herein would reveal that the sale transactions between A1 and A3 on one hand and A12 on other hand are in order and the invoices for the sale in respect of the same sale transactions are from Pudukottai. Even assuming the prosecution case is to be true that the delivery was from Chennai and Tuticorin, the same is in no way in violation of FMCO and FCO. As far as the allegations regarding the failure to submit O-Form, is concerned the same is also found to be not true by the Enquiry Officer in the departmental enquiry.
15. The allegation, as if the fertilizers sold by A1 to A3 and A12 are in turn sold to A13 Chemical company for non agricultural purpose, who inturn transported the same to Andhra Pradesh for the same purpose and the delivery of the stock was straightaway taken from the importers godown at Chennai to Andhra Pradesh is even on the basis of the allegations raised in the final report are untrue. The final report clearly says that the fertilizers are brought to the godown of Srikanth & Nagesh Firm situated at 487 Elango Adigalar Salai, Skamiyar Madam, Thandal Kazhani, Redhills Post, Chennai and 501/2, GNT Road, Thandal Kazhani, Redhills Post, Chennai chennai from the godown of MOP importers, Chennai. In that event, the transaction between A1 to A3 and A12 comes to an end and A1 to A3 have no role to play in further sale between A12 and A13 and the alleged transport of the fertilizers by A13 thereafter to Andhra Pradesh, so as to attract the ingredients of the offences for an act of conspiracy, criminal breach of trust and violation of FMCO and FMO punishable under IPC and Essential Commodities Act.
16.Thus, the discussions held above would amply go to show that no case is made out and the facts involved in the present case and the materials made available herein would not attract the commission of any offence charged against A1 to A3 as such if the criminal proceedings is allowed to go on against the petitioners, it will amount to abuse of process of law and in order to secure the ends of justice, the criminal proceedings is liable to be quashed and stands quashed.
17.In the result, both the criminal original petitions are allowed by quashing the proceedings in CC.No.10731 of 2010 pending on the file of the XI Metropolitan Magistrate, Egmore, Chennai.
05.09.2014 Index : Yes/No Internet : Yes/No tsh To
1.The XI Metropolitan Magistrate, Egmore, Chennai.
2.The Public Prosecutor, High Court, Madras.
3.The Deputy Superintendent of Police Organized Unit II, CBCID, Chennai-3.
K.B.K.VASUKI, J., tsh Crl.OP.No.27503 & 27504 of 2010 05.09.2014.