Madras High Court
Duraikannu [A2 vs /
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 13.02.2018 Pronounced on: 01.03.2018 Coram The Honourable Dr.Justice G.Jayachandran Criminal Appeal Nos. 465, 482, 486, 495 & 516 of 2009 1. Duraikannu [A2] ... Appellant in Crl.A.No.465 of 2009 2. Devarajan [A1] ... Appellant in Crl.A.No.482 of 2009 3. Kalaiarasu [A3] ... Appellant in Crl.A.No.486 of 2009 4. Selvi @ Chittak [A5] ... Appellant in Crl.A.No.495 of 2009 5. Kannammal @ Panchali [A6] 6. Malliga [A7] ...Appellants [A6] & [A7] are Crl.A.Nos.516 of 2009 /versus/ State, rep. by The Deputy Superintendent of Police Vigilance and Anti-corruption, Kancheepuram [Cr.No.2/AC/96/CH] ... Respondent in all the appeals PRAYER in Crl.A.Nos.465, 482, 486, 495, 516 of 2009: Criminal Appeal are filed under Section 374 (2) of Criminal Procedure Code, to set-aside against the conviction and sentence passed by the learned Special Judge cum Judicial Magistrate, Chengalpattu by his judgment dated 29.07.2009 made in Special Case No.3 of 2000. For Appellant : Mr.V.Balu in Crl.A.No.465 of 2009 For Appellant : Mrs.Auxiliapeter in Crl.A.No.482 of 2009 For Appellant : Mr.R.Srinivasan in Crl.A.No.486 of 2009 For Appellant : Mr.G.Dhamodaran in Crl.A.No.495 of 2009 For Appellant : Mr.J.Srinivasan in Crl.A.No.516 of 2009 For Respondents : Mr. P.Govindarajan, in all the appeals Additional Public Prosecutor ------ COMMON JUDGMENT
These batch of appeals are preferred by the accused who were held guilty in Special C.C.No.3 of 2000, on the file of the learned Special Judge cum Chief Judicial Magistrate, Chengapattu vide judgment dated 29.07.2009.
2. On 30.08.1994 three applications purported to be from the widows of Vanathiyan son of Santhanam, Munian son of Poogan, Gajendran son of Muthan of Mogulvadi village, Maduranthagam Taluk enclosing the death extract of the above said persons signed by Thiru.S.Kalaiarasu, Village Administrative Officer of Mogulvadi Village, Maduranthagam Taluk was received by Thiru.Deek.Ramasamy the Tahsildhar, Distress Relief Scheme, Maduranthagam. He processed the application and send the same to Devarajan [A1], Revenue Inspector for enquiry and report. The said Devarajan on receipt of the applications, recommended to sanction the Distress Relief of Rs.5,000/- to each of the applicants. Since there was delay in making the applications, Thiru.Deek Ramasamy, Tahsildhar addressed a letter to the District Collector, Chennai, requesting him to condone the delay in preferring the application seeking Distress Relief Fund. Considering the request, the District Collector has issued proceedings condoning the delay. Thereafter, Thiru.Deek Ramasamy, Tahsildhar has sanctioned the relief amount to the three appellants A5 to A7 who claim themselves as widows of Vanathiyan, Munniyan and Gajendaran.
3. Thiru.V.Narayanan Tahsildhar succeeded Thiru.Deek Ramasamy as Tahsildhar of Maduranthagam Taluk during September 1995. Pursuant to the sanction order issued by the District Collector cheques were issued for Rs.5,000/- to each of the applicants, in presence of P.Murugasan, Village Assistant who has identified the claimants, later it as found that the claimants who received the distress relief fund are not widows of Vanathiyan, Munnaiyan, Gajendaran. In fact these three persons are alive and the death extract issued that they were died during July/August 1993 is false. The fictitious entry had been made in the death register as if the above said persons were died during July/August 1993. Thiru.Duraikannu [A-2] who was the Village Administrative Officer of Mogulvadi Village, during that relevant point of time had made the false entry in the death register with connivance of his Village Assistant showing him as the informer for the death. After applying for Distress Relief Fund, these accused have arranged three persons namely Selvi wife of Fancis, Thiru.Kannammal wife of Kanniappan and Thiru.Malliga wife of Sankaran to impersonate as widow of Vanathaiyan, Munniyan and Gajendaran to receive the Distress Relief Fund. Accordingly, these three ladies have gone to Bank of India, Maduranthagam having received the cheque and encashed the same. The information as found in the First Information Report indicates that after giving Rs.150/- to each of the ladies, the remaining money has been taken away by Duraikannu [A-2] and Murugesan [A-4] thus the totally Rs.15,000/- has been cheated by the accused persons. Thus, pursuant to the conspiracy A1 to A7 had cheated the Government by producing false death extract by creating false entry in the death register and by impersonation.
4. Based on the First Information Report, the case was registered on 23.05.1996. The prosecution after conducted investigation, had laid final report as against appellants Thiru.Devarajan [A1] Revenue Inspector, Maduranthagam, Duraikannu [A2] Village Administrative Officer, Mogulvadi village, Kalaiarasu [A3] Village Administrative Officer, Mogulvadi Village, Murugasan [A4] Village Assistant Mogulvadi Village, Selvi @ Chittak [A5], Kannammal @ Panjali [A6] and Malliga [A7].
5. While A1 to A4 are public servants A5 to A7 are private individuals. Based on the final report, the trial Court has farmed charges against A1 to A7 under Section 120-B r/w 468, 471 r/w 468 IPC, 419 IPC and 420 IPC. Further, A1 to A4 being public servants additional charge under Section 13(2) r/w 13(1)(c)(d) of Prevention of Corruption Act were framed.
6. To prove the charges, the prosecution has examined 23 witnesses, marked 26 Exhibits. No witness examined on the side of the defence.
7. The Trial Court after appreciation of the evidence has held that Vanathiyan, Munniyan, Gajendaran are alive and their wives are also alive but they were not the applicants seeking distress relief fund. The thumb impression found in the application of Rosemarie wife of Vanathiyan tally with the thumb impression of the 5th accused Selvi @ Chittak. Likewise, the thumb impression found in the application of Kannammal wife of Muniyan tally with the thumb impression of 6th accused Panchali wife of Kanniappan. Likewise the thumb impression found in the application of Malliga wife of Gajendaran tally with the thumb impression of 7th accused Malliga wife of Sankar. Thus the prosecution has proved through its witnesses that Vanathiyan, Munnaiyan, Gajendaran are not died as found in the entries of death register and the death extract enclosed along with the applications and their wives did not make any application for seeking distress relief fund. Whereas, the accused A1 to A4 had fabricated the records and had made false claim in the name of Dassmary, Kannammal and Malliga. To support the claim the family cards were forged.
8. Therefore, the trial Court held A1 to A4 guilty of offences and had sentenced to undergo 2 years R.I and a fine of Rs.5,000/- in default 6 months R.I for offence under Section 120-B r/w 468, to undergo 2 years R.I and a fine of Rs.5,000/- in default 6 months R.I for offence under Section 471 r/w 468 IPC, to undergo 1 year R.I for offence under 419 IPC, to undergo 2 years R.I and a fine of Rs.5,000/- in default 6 months R.I for offence under Section 420 IPC, to undergo 2 years R.I and a fine of Rs.5,000/- in default 6 months R.I for offence under section 13(2) r/w 13(1)(c)&(d) of Prevention of Corruption Act.
9. Insofar as A5 to A7, the trial court had sentenced them to undergo 1 year R.I and a fine of Rs.100/- in default to undergo 3 months R.I for offence under Section 120-B r/w 468 of IPC. To undergo 1 year R.I and a fine of Rs.100/- in default to undergo 3 months R.I for offence under Section 471 r/w 468 of IPC, to undergo 1 year R.I for offence under Section 419 IPC, To undergo 1 year R.I and a fine of Rs.100/- in default to undergo 3 months R.I for offence under Section 420 IPC.
10. Aggrieved by the above said sentence the accused persons have preferred the following appeals; (i) A1 [Devarajan] has preferred the appeal in Crl.A.No.482 of 2009; (ii) A2 [DuraiKannu] has preferred the appeal in Crl.A.No.465 of 2009; (iii) A3 [Kalaiarasu] has preferred the appeal in Crl.A.No.468 of 2009; (iv) A4 [P.Murugasan] has preferred appeal in Crl.A.No.490 of 2002; Since He died pending appeal, this appeal has been dismissed as abated; (v). A5 [Selvi @ Chittak] has preferred the appeal in Crl.A.No.495 of 2009 and A6 [Kannammal] and A7 [Maliga] has jointly preferred the appeal in Crl.A.No.516 of 2009.
11. The contention of the appellant A1 Devarajan in Crl.A.No.482 of 2009 is that he was as Revenue Inspector, had followed the procedures and directions of the higher authority namely the Thiru.Deek Ramasamy, Tahsildhar. He has not committed any violation of the Tamil Nadu Revenue Subordinate Service Rules. The applications which were received by the Taluk Office being forwarded by the Tahsildhar Deek.Ramasamy to the Collector along with his request to condone the delay. The District Collector after applying his mind, on perusal of the records, taking note of the genuineness of the claim had condoned the delay and forwarded the papers to Taluk office for verification. Thiru.Kalaiarasu [A3], Village Administrative Officer had verified the application and submitted the records that was in turn forwarded by him to Deek.Ramasamy Talsildhar. In the said process the appellant as Revenue Inspector has no role in obtaining the signatures or thumb impression of the applicants directly or to process the application and sanction the relief fund. He has also no role even in disbursement of the same.
12. While so, the finding of the Trial Court on 30.08.1994 he along with the other accused had entered into criminal conspiracy to commit the illegal act is totally baseless. In the absence of oral and documentary evidence, the Trial Court ought not to have held the appellants guilty of the offence for the breach of trust. Regarding distribution of Distress Relief Fund. In the absence of evidence, the trial Court ought to have acquitted him from all the charges, since there is no evidence to show this appellant as Revenue Inspector abused his official position to do any illegal act for pecuniary advantage or he has created false records to use it as genuine and cheat the state by impersonation.
13. The Trial Court ought not to have relied upon the evidence of PW.17 Thiru.Narayanan, Special Tahsidhar Distress Relief Fund whose name was shown one of the accused in the First Information Report. In the absence of evidence that pursuant to the criminal conspiracy to make pecuniary advantage the appellant has shared the alleged unlawful gain, the Trail Court ought not to have held them guilty.
14. Thiru.Duraikannu [A2] who is the appellant in Crl.A.No.485 of 2009 would submit that during the alleged period of occurrence the appellant was not at all in-charge of the concern village in the capacity of Village Administrative Officer. His name was found in the First Information Report but later included in the final report for the reason best known to the prosecution. He was not at all responsible for grant of distress relief fund. The entire process is done at Tahsidhar and Revenue Inspector level. This appellant has not committed any criminal offence other than preparation of the death extract of the claimants husband based on the Death Register. While PW.17 [Narayanan], Tahsildar was at the helm of affairs during the relevant point of time, his name shown in First Information Report as accused, transposed as witness to prosecution whereas, in the final report, the name of the appellant is included as accused without any material evidence implicating him. Based on the information given by A4 [Murugasan], Village Administrative Officer he had entered the death of Vanathiyan, Munnaiyan, Gajendaran. He was not the Officer in-charge of the Village during the period of application or during the period of disbursement therefore, he cannot be roped in as accused by the prosecution under Prevention of Corruption Act. When the prosecution has not proved through material evidence the alleged conspiracy, forgery and cheating, the Trial Court ought to have not convicted the appellant.
15. Thiru. Kalaiarasu [A3] appellant in Crl.A.No.486 of 2009 would submit that the charge against this appellant is that he has produced death extract of the Gajendran son of Muthan, Muniyan son of Poogan, Vanathaiyan son of Santhanam based on the entries made in the Register by the Village Administrative Office Durai kannu [A2] and Murugasan [A4] cannot be the reason to hold him guilty for the alleged offences of conspiracy, impersonation, cheating fabrication of documents using the forged document as genuine and misuse of office as public servant to obtain unlawful gain by abusing his official position.
16. There is no material to show that there was meeting of mind between the accused or pursuant to the meeting of mind the alleged criminal offence has been committed. The appellant joined the duty as Village Administrative Officer in the said village only on 01.06.1994 whereas the application along with death extract was forwarded before he joined the station as Village Administrative Officer so, he cannot be held liable for conspiracy. The death of Vanathiyan, Muniyan, Gajendran was registered on 31.08.1993, 12.08.1993 and 29.07.1993 respectively and same has been done by A2 [Durai Kannu]. While so, this accused who joined the station as Village Administrative Office on 01.06.1994 has erroneously been held guilty for alleged conspiracy and crime which has taken place much prior to his joining in the said station. The evidence of PW.17 or his report Ex.P.22 are unreliable, since PW.17 himself was arrayed as one of the accused in the First Information Report and departmental enquiry was initiated against him for misconduct. The Trial Court has not given due consideration for the evidence given by PW.14 and his report marked as Ex.P.20. When the appellant has not registered the death of persons who are alive and when he has not marshalled A5 to A7 before the Bank or Taluk Office to receive the cheque or to encash the same holding him guilty for offence of cheating, forgery, impersonation and conspiracy is unjust and the same has resulted in miscarriage of justice.
17. As far as the private individuals namely Selvi @ Chittak [A5] appellants in Crl.A.No.495 of 2009 is concerned it is submitted that Selvi first husband died due to Snake Bite and the distress relief scheme is for widows whose husband died by Snake Bite. She belongs to Irula Community which is very downtrodden community. She has made a genuine claim and sought compensation under the distress relief scheme which she is fully eligible. Being illiterate and ignorant, she is not aware of the procedures or capable of filing up the application form. This does not mean that she has connived with the other accused persons who are educated and wordily wise people, employed by the state to maintain records of death and identify eligible candidates for disbursement of social welfare schemes of the Government. She has innocently affixed the thumb impression believing the words of the Officials. The Trial Court has miserably failed to note that her first husband died due to Snake Bite, so she cannot be roped in for the alleged offence under Section 420-B, 468, 471 or any other offence as projected by the prosecution. The re-marriage of the appellant after the death of her first husband will no way disentitled her from claiming the distress relief scheme. Just because has re-married after the demise of the first husband, it cannot be a reason to hold her guilty of impersonation, cheating and breach of trust.
18. The other two private individuals namely Kannammal @ Panjali [A6] and Maliga [A7] would submit that these appellants who were illiterate, uneducated hailing from downtrodden community has been misused by educated, affluent and well placed accused namely A1 to A4 to cheat the State Government. By creating false records and siphoning the funds allotted for welfare scheme like distress relief fund which is meant for poor widow of Irula Community who spouse die by of snake bite. Believing the words of the Officials they accompanied them to the Bank and Taluk Office affixed the thumb impression as dictated by them with a fond hope and belief that government is going to give some monetary support. Except believing the said assurance the appellants have no knowledge about the alleged forgery or fabrication of records. In such circumstances holding these appellants guilty of conspiracy to do other offences for which they have no knowledge or meeting of mind with the accused A1 to A4 is sheer miscarriage of justice
19. The learned Additional Public Prosecutor would submit that the prosecution has clearly proved that Vanathiyan, Muniyan and Gajendran are persons alive. Their wives namely Rosemarie, Panchali are not the applicants. Whereas A5 to A7 impersonating themselves as widows of Vanathiyan, Muniyan and Gajendran had given the application for distress relief scheme. The said applications has been forwarded to the Collector Office with request to condone the delay for making the application. This application is also accompanied by death extract of three persons. Witnesses and records reveals that the said entry in the death register is falsely made by A3 based on the information given by A2 and A4. The cheque has been encashed by A4 and for aiding him and for impersonation A5 to A7 were given Rs.150/- each. The Thumb impression found in the applications is that of A5 and A7 and not the thumb impression of the wives of Vanathiyan and Gajendran. Therefore, having proved the guilty of an accused beyond doubt, the judgment of the Trial Court needs no interference.
Points for consideration Whether the judgment of the trial Court is based on the proper appreciation of law and facts?
20. The sequence of event in this case as found through the prosecution evidence indicates that the Distress Relief Scheme applications in the name of Rosemarie w/o Vanathaiyan, Kannammal w/o Munian and Malliga w/o Gajenderan was forwarded to Maduranthagam Taluk Office on 05.09.1994. Along with the applications death extract of Vanathaiyan showing his date of death as 30.08.1993, Munian showing the date of his death as 09.08.1993 and Gajenderan showing his date of death as 27.07.1993 was also enclosed. Along with the application, the death extract prepared by A3 Kalaiarasu, the Statements of the villagers, statements of the applicants recorded by A1 Devarajan were also enclosed. The applications made based on forged documents, the death extract used as genuine so as to cheat the state. Further the accused A1 to A4 has also forged the family card of these applicants. The names of Vanathaiyan, Munian and Gajenderan is encircled and shown as dead which is factually wrong and the family cards are absolutely fake documents. Based on these forged and fabricated documents, the applications made after 6 months from the date of the death of their spouses were condoned by the Collector.
21. The prosecution witness PW.3 Narayanasamy, has deposed that in the statements of villagers, R.I and VAO Murugesan asked him and others to sign, so they signed. So A1 to A4 who are the appellants in Crl.A.No.482, 465, 486 and 490 of 2009 are responsible for these fabrication and false documents After condonation of the delay by the District Collector, to receive the money A5 to A7 were arranged for impersonation by the other accused. Through the evidence of the villagers who were examined as PW.2 to PW.10, it is clearly proved that Murugesan [A4] Talaiyari has played key role in getting the signatures of the villagers by promising A5 to A7 loan from Government. He had cheated them by fraudulently getting relief amount by impersonation. The evidence of PW.10, who has filled up the applications in the name of Rosemarie and others marked as Ex.P.10 (series) and Ex.P.11 at the request of A-4 Murugesan corroborates the case of the prosecution substantially.
22. The death register has been fabricated while A2 [DuraiKannu] was the Village Administrative Officer of Mogulvadi Village. The evidence of the prosecution has proved the entries in the death register as if Vanathiyan, Muniyan and Gajendran died on the respective days as shown in the register are false entry. A4 [Murugasan] has created statement of villagers in support of the false claimants who are alleged to be the widows of above said three persons. A1 being Revenue Inspector of the concerned area had recommended the applications to release the fund under Distress Relief Scheme. It is also pertinent to note that though the applications was time barred since it is made after 6 months, request for condoning the delay has been emanated from A1. Ex.P.23 the report of PW.17 contains the detail how the crime has been committed and the role of each accused in connivance with A1, A2, A3 and A4.
23. Though it is contended that the evidence of PW.17 and his report of Ex.P.23 has to be looked sceptically, since PW.17 is also privy to the Crime. This Court finds that neither the prosecution nor the trial Court has found that PW.17 had any mensrea in the scheme of crime committed by the appellants herein. Therefore, when the report is substantially corroborated by other documentary evidence, there is no reason to disbelieve the PW.17 or to reject his report Ex.P.23.
24. The impersonation part, the role of A4 is explicitly spoken by PW.7 Pachaiammal. The accused A-1 to A-3 who are supposed to verify the genuineness of the applications have failed to verify, contrarily they have created documents with false details and forged records, to get the distress relief fund of Rs.15,000/- by impersonation. A5 to A7 had fallen prey to the false promise extended by A-4 Murugesan. Since, he is dead pending appeal, his appeal is abated whereas A1 to A3 who have knowingly forwarded fake application with false records and deceitfully encashed three cheques for total sum of Rs.15,000/- are found guilty of offence charged their appeals in Crl.A.No.482, 465 and 486 of 2009 are dismissed.
25. The prosecution case against A5 to A7 are not proved beyond doubt. There is no material evidence to show they conspired with A1 to A4. No doubt, they have gone to Taluk Office and the Bank to receive the cheque, but it is due to their illiteracy and lack of knowledge that they are impersonating someone else. The evidence of PW.7 reveals their innocence and how A4 had exploited their innocence promising financial assistance. Under these circumstances, this court is not able to find any mens rea on the part of the appellants A5 to A7 in the Crime. Hence their Criminal Appeal No.495 of 2009 and Criminal Appeal No.516 of 2009 are allowed.
In the Result, Criminal Appeal No.465 of 2009 filed by Duraikannur [A2] is Dismissed Criminal Appeal No.482 of 2009 filed by Devarajan [A1] is Dismissed Criminal Appeal No.486 of 2009 filed by Kalaiarasu [A3] is Dismissed Criminal Appeal No.495 of 2009 filed by Selvi @ Chittak[A5] is Allowed Criminal Appeal No.516 of 2009 filed by Kannammal @ Panchali [A6] & Malliga [A7] are Allowed
26. The sentence and conviction passed by the learned Special Judge cum Chief Judicial Magistrate, Chengalpet dated 29.07.2009 in Special Case No.3 of 2000 as against A1, A2 and A3 are hereby confirmed. The appellants in Criminal Appeal Nos.465 of 2009, 482 of 2009 and 486 of 2009 are directed to surrender before the Trial Court within 30 days from this day, to undergo the remaining period of sentence failing which the Trial Court shall secure their presence to undergo the remaining period of sentence. A5 to A6 are the appellants in Criminal Appeal Nos.495 of 2009 and 519 of 2009 are set at liberty. Fine amount paid if any, shall be refunded to the appellants.
01.03.2018 Dr.G.Jayachandran,J.
bsm Pre-delivery judgment made in Criminal Appeal Nos. 465, 482, 486, 495 & 516 of 2009 01.03.2018 Criminal Appeal Nos.465, 482, 486, 495 & 516 of 2009 Dr.G.Jayachandran.,J After pronouncing the Judgment, the learned Counsels for the appellants would submit that some leniency may be shown to the accused [A1] to [A3], since the accused [A1] to [A3] were suffering ordeal of Trial for the past 18 years and all of them have crossed 70 years, living with severe aliments. Taking note of the submission, this Court modifies the period of sentence rendered by the Trial Court are as follows:-
Rank of the Accused Conviction under Section Sentence imposed by the Trial Court Sentence modified by this Court A1, A2, A3, A4 Under Section 120-B r/w 468 IPC To undergo R.I for a period of 2 years each and to pay a fine of Rs.5,000/-each in default 6 months R.I To undergo R.I for a period of 1 year each and to pay a fine of Rs.5,000/-each in default 6 months R.I A1, A2, A3, A4 Under Section 471 r/w 468 IPC To undergo R.I for a period of 2 years each and to pay a fine of Rs.5,000/-each in default 6 months R.I To undergo R.I for a period of 1 year each and to pay a fine of Rs.5,000/-each in default 6 months R.I A1, A2, A3, A4 Under Section 419 IPC To undergo R.I for a period of 1 year each To undergo R.I for a period of 1 year A1, A2, A3, A4 Under Section 420 IPC To undergo R.I for a period of 2 years each and to pay a fine of Rs.5,000/-each in default 6 months R.I To undergo R.I for a period of 1 year each and to pay a fine of Rs.5,000/-each in default 6 months R.I The sentence imposed by this Court shall run concurrently. The period of sentence already undergone shall be set off.
01.03.2018 Index:yes/no Internet:yes/no bsm To
1. The learned Special Judge-cum-
Judicial Magistrate, Chengalpattu.
2. The Deputy Superintendent of Police Vigilance and Anti-corruption, Kancheepuram.
3. The Additional Public Prosecutor, High Court, Madras.
Dr.G.Jayachandran,J.
bsm Pre-delivery judgment made in Criminal Appeal Nos. 465, 482, 486, 495 & 516 of 2009 01.03.2018