Madras High Court
P.Ilangovan vs The State Of Tamil Nadu on 28 September, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 28/09/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)Nos.366 and 368 of 2016
(1)Crl.A(MD)No.366 of 2016:-
P.Ilangovan : Appellant/A2
Vs.
The State of Tamil Nadu
represented by its
The Inspector of Police,
Vigilance and Anti Corruption Wing,
Sivagangai,
Sivagangai District.
(In Crime No.05 of 1989) : Respondent/Complainant
Prayer: Criminal Appeal is filed under 374(2) of the
Criminal Procedure Code against the judgment dated,
19/09/2016 in Spl. CC No.1 of 2014 on the file of the
Special Court for cases under the Prevention of
Corruption Act, Sivagangai District.
For Appellant : Mr.M.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For Respondent : Mr.R.Meenakshi Sundaran
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
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(2)Crl.A(MD)No.368 of 2016:-
K.Ramaiah : Appellant/A1
Vs.
The State of Tamil Nadu
represented by its
The Inspector of Police,
Vigilance and Anti Corruption Wing,
Sivagangai,
Sivagangai District.
(In Crime No.05 of 1989) : Respondent/Complainant
Prayer: Criminal Appeal is filed under 374(2) of the
Criminal Procedure Code against the judgment dated,
19/09/2016 in Spl. CC No.1 of 2014 on the file of the
Special Court for cases under the Prevention of
Corruption Act, Sivagangai District.
For Appellant : Mr.T.Lajapathi Roy
For Respondent : Mr.R.Meenakshi Sundaran
Additional Public Prosecutor
COMMON JUDGMENT
These Criminal Appeals are preferred against the judgment, dated, 19/09/2016 in Spl. CC No.1 of 2014 on the file of the Special Court for cases under the Prevention of Corruption Act, Sivagangai District. https://www.mhc.tn.gov.in/judis 3
2.The case of the prosecution in brief:-
A suo muto complaint has been registered by the Superintendent of Police, Vigilance and Anti-corruption, Sivagangai with the following allegations:-
A1-K.Ramiah was working as Assistant Director of Agriculture (Oil Seeds), Sivagangai, during the period 1985 and 1986. During that period, A2 to A6 were working as Assistant Agriculture Officers. Every year, ground nut oil seeds and other oil seeds were procured from the recognized seed farm farmers and stocked in the Agricultural Department. A premium amount of 25/- paise per kilogram was paid and a truthful subsidy was given to the farmers. The total amount of Rs.2,35,000/- was paid towards premium and truthful subsidy. It was learnt that some of the farmers were not in existence and some of the farmers have not supplied the ground nut oil seeds. Documents have been created by A1 to A6 with a view to commit the criminal misuse Rs.2,35,000/-. On the basis of the above said scam, a complaint was registered in Crime No.5 of 1989 for the offences under section 120- B, 409, 420 and 477-A IPC and section 5(2) r/w 5(1)(c) of Prevention of Corruption Act, 1947. Investigation was https://www.mhc.tn.gov.in/judis 4 undertaken and during the course of investigation, the involvement of the accused persons came to light and based upon which, the final report has also been filed by the Inspector of Police, Vigilance Anti-corruption Department, on 20/06/1997 stating that all the accused entered into a criminal conspiracy and misappropriated the money by forging the documents.
3.During the course of investigation, one of the accused namely S.Gunasekaran turned approver and it has been stated that by that process, A1 misappropriated Rs.1,70,285.25/- and A2 misappropriated Rs.11,561.25/- and Rs.11,842.75/- by A3 and Rs.1,22,906.25/- by S.Gunasekaran (Approver). All the accused persons are punishable under sections 120(b) r/w 167, 477(A), 409, 420 IPC and section 5(2) r/w 5(1) & (d) of the Prevention of Corruption Act, 1947. After investigation, charges were framed against them as stated above.
4.The accused persons denied the charges and claimed to be tried. Towards proving of the charges, on the side of the prosecution, 63 witnesses were examined and 331 documents marked, apart from, Exs.C1 and C2 were also https://www.mhc.tn.gov.in/judis 5 marked. On the side of the defence, 9 witnesses were examined and 51 documents marked.
5.The facts, as narrated through the examination of the witnesses, are as follows:-
PW57-Anthonisamy sent a detailed enquiry report.
Based upon which also, the Director of Vigilance and Anti Corruption (Cell), Chennai, ordered investigation. The FIR was registered, on 31/03/1989. The further investigation was also undertaken by PW63-Venugopal. He recorded the statement of the witnesses. During the course of investigating process, A5-S.Gunasekaran turned approver. His evidence was recorded, on 16/09/1992 by the Judicial Magistrate No.1, Sivagangai and he was granted pardon. So A5 was added as a witness. While filing the final report, A4 and A5 were deleted.
6.PW4-Sethuraman was working as Assistant Agriculture Officer, Sivagangai. At that time, the 2nd accused Ilangovan went on three days leave. So A1 was in charge and asked PW4 to look after the work in addition. He requested him to prepare the ground nut purchase https://www.mhc.tn.gov.in/judis 6 vouchers. He handed over the stamps and signed receipts without any contents. In the above said document, the accused S.Gunasekaran made an endorsement that the amount was paid in his presence. In the above said invoice, A1 made an endorsement. They also made a recommendation order to pay cash instead of demand draft.
7.PW61-S.Gunasekaran, who became an approver was working from 01/02/1985 to 16/10/1986 as Agricultural Officer in Manamadurai Oil Seeds section. A1 was his superior. There was a target fixed. During 1985-1986 in the month of March, A1 pressurized him to prepare the invoices as if they purchased the seeds from the farmers. A1 purchased the seeds in the open market from the merchants and stored the same in the depot. He also prepared the list by including the unknown persons. It was sent to him for signature through one Rajagopal. As per the direction of A1, he signed in all the vouchers and sent through the above said Rajagopal. A17 paid money, but returned the subsidy as well as incentive during the year 1985 to 1986. Forged documents have been created as if 98,635 kgs of seeds were purchased from the farmers. As per the procedure, in the month of June, https://www.mhc.tn.gov.in/judis 7 seeds must be supplied by the Government. During March, it must be collected from them. That procedure was not adopted, even before receiving the report from the Lab. In the meantime, by March itself, A1 created documents stating that seeds have 75% of germination capacity. But the report says it as 35%. On 25/06/1985, A1 stated that he paid advance amount of Rs.15,000/- to two farmers. Later, the invoices were prepared. But no purchase was made. By utilizing Rs.15,000/-, A1 purchased seeds in the open market. The above said Rs.15,000/- has been misappropriated by him. So by the above said invoice, he alleged to have purchased 2793 kgs of seeds. The Seed Officer went on casual leave, on 24/03/1986 to 26/03/1986. PW61 was appointed as In Charge Officer. As stated above, by suppression, he created documents as if seeds were purchased from six farmers and as stated above PW61 also signed in the same as if money was paid in his presence. But really, no subsidy was issued to the farmers. Even before receiving the order from the Government, A1 issued subsidy. A1 was directed to remit the above said amount of Rs.11,865/-. But A1 refused to remit the same. The document has also been created as if farmers namely Sethupathy, Ramu Thevar, Chellam, Symion, https://www.mhc.tn.gov.in/judis 8 Ayyasamy and Santhiyagu supplied seeds from 67 farms. No such plantation was made. The other witnesses were not relevant for narration now and those witnesses will be in the course of judgment.
8.After completing the formalities of investigation, final report was filed by the Investigating Officer. After completing the prosecution side witness, the accused were put on 313 Cr.P.C question. They denied the allegation. On their side, as mentioned above, six witnesses were examined and 51 documents were marked.
9.After considering the evidence, both oral and documentary, all the three persons were found guilty for the offences under sections 120(B) r/w 167, 477(A), 409, 420 IPC and section 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947. They were sentenced to undergo the imprisonment as detailed below:-
S.No. Offences Imprisonment
01. 167 IPC 3 years RI and imposed a fine of
Rs.5,000/-, in default 6 months RI
for (4 counts)
02. 477-A IPC 3 years RI and imposed a fine of
Rs.5,000/- in default 6 months RI
03. 409 IPC 3 years RI and imposed a fine of
Rs.5,000/- in default 6 months RI
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04. 420 IPC 3 years RI and imposed a fine of
Rs.5,000/- in default 6 months RI
05. 5(2) r/w5(1)(c) 3 years RI and imposed a fine of and 5(1(d) of Rs.5,000/- in default 6 months RI. Prevention of Corruption Act, 1947
10.Now challenging the conviction and sentence, A1 and A2 preferred these two separate appeals.
11.For better appreciation, common judgment is pronounced. As rightly contended by the learned counsel appearing for the appellant/A1 in Crl.A(MD)No.368 of 2016, the evidence and documents are one and the same in nature. Now, let us straightaway take the evidence of the approver.
12.As narrated in the preamble portion, it is his evidence to the effect that A1 only played major role in creating documents as if seeds were purchased from the farmers and subsidy and incentives were issued in his presence; By the above said process, for the year 1985-1986, totally 98,585/- kgs of seeds were purchased from the farmers; As stated above, by order, dated 25/06/1985, A1 created documents as if he received the https://www.mhc.tn.gov.in/judis 10 advance amount of Rs.1,50,000/- for purchasing seeds; As requested by him, he issued invoices; But actually, no such purchase was made; Similarly, documents have been created as if 2293 kgs of seeds were purchased from the farmers; He prepared the documents at the instance of A1; Since Senior Seed Officer went on casual leave, on 26/03/1986, at that time, he was the officer in charge; During that period, documents have been created as if from 6 farmers seeds were purchased; The documents have been created as if from 52 farmers, seeds have been purchased; The Head Clerk obtained his signature in the documents as if money has been issued in his presence; Those receipts were marked as Exs.P6, P9 and P12; Even without undertaking proper inspection, documents have been created as if inspection was undertaken and he was also forced to sign in those documents.
13.In the light of the above said evidence, now let us go to the charges, so that we can have a clear idea over the issue.
14.With regard to misappropriation, it is a charge to the effect that A1 and A2 without purchasing the seeds https://www.mhc.tn.gov.in/judis 11 from the farmers, created documents as if they purchased the seeds from 88 farmers about 9249 kgs and as if they have paid Rs.2,32,250/- and Rs.9,249/- as incentive, created false invoices. By the above said process, they caused wrongful loss to the Government.
15.The next material charge is that A1 and A3 created document as if 18363 kgs was purchased from 8 farmers and in that process, they received a sum of Rs.4,59,075/- as premium and Rs.7,782/- as incentive and thereby, caused wrongful loss to the Government. Similarly, documents have been created as if they purchased 9832 kgs from 52 farmers and documents have been created as if Rs.24,581.25/- was paid as premium and Rs.98,325/- as incentive.
16.A1 created the document as if he purchased 19180 kgs from 11 farmers and paid Rs.4,795/- as premium and Rs.19,180/- as incentive. So in the above said process, all the accused persons created documents, which is punishable under section 477(A) of IPC. https://www.mhc.tn.gov.in/judis 12
17.For further understanding of the facts and clarity from the evidence of the farmers, so that, we can have a clear picture over the entire prosecution evidence. We can categorize the farmers into two groups.
18.The first group of farmers supported the case of the defence and another group supported the case of the prosecution.
19.Let us take the denial group, who supported the case of the prosecution.
20.PW13-Kamaiyahsamy has stated in the evidence that he did not enter into the agreement with the Department for cultivating ground nut oil seeds. He denied the original Ex.P113 Invoice; Neither, he sold the ground nut oil to the Department, nor purchasef the same. He also denied the signature in the vouchers. The defence has suggested that he entered into a seed Farm agreement with the Department, received premium and incentives.
21.The learned counsel appearing for the first accused would say that even though, the above said https://www.mhc.tn.gov.in/judis 13 witness, denied his signature, the same was not verified by examining the documents by the expert.
22.Let us compare the signature available in the deposition with the document later.
23.The next case is PW21-Mayandhi. He would say that he is not owning the lands in the village. He also denied the signature in Ex.P186. PW22-Santhiyagu has also stated that he did not receive any subsidy and he has also not sold any seeds to the Department. He denied the signature found in Exs.P145 and P201.
24.A suggestion was made to the first accused to the effect that he participated in the above said seed Farm program, purchased seeds, raised and sold the same. PW23- Sekar also denied his signature in Exs.139 and P215 and accepted that documents. It was suggested by A1 that he sold the seeds and received subsidy and premium amount also. PW24-Ayyasamy has also denied and disputed the signature in Ex.P151.
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25.PW25-Thangamuthu denied the signature in Exs.P11 and P159 etc. PW26-Thambi Durai denied the signature. PW32-Rukumani, PW33-Jayaprakasam and PW34-Sooairaj, so also PW27-Muthaiya denied the signature in Exs.P185 and P195. Apart from supporting the prosecution, stated that he sold the seeds and received the price, but the subsidy and truthful subsidy were not paid by him. PW29-Madhavan also denied the signature in Exs.P124 and P139.
26.PW30-Annamalai supported the case of the prosecution. PW32-Rukkumani denied the signature in Exs.P250 and P254. PW40-Arumugam admitted the signature, but denied that he is owning lands and purchased seeds from the Department and sold the same, received premium and truthful subsidy. So the prosecution heavily relied upon the above evidence to say that all the accused persons joined together, created false records and misappropriated the Government money, either without supplying oil seeds or purchasing the same from the true farmers and misused the subsidy and truthful subsidy, etc. We will deal about this in the later portion of the judgment.
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27.Coming to the farmers, who are supporting the defence are PW19, PW30, PW31, PW33, PW34, PW35, PW37, PW38, PW39, PW42, PW44, PW45, PW46, PW49, PW53, PW54, PW55 and PW58. All these farmers during the course of evidence have stated that they sold the oil seeds to the Department, received sale price, subsidy and truthful subsidy. Suffice to say that PW19 admits Exs.P132, 134, whereas PW31 admits Exs.P231 and P243. PW33 admits Ex.116. PW34 admits Exs.P123 and P133. PW35 admits Exs.P263, P264, P265 & P266. PW37 admits receiving of sale price, but did not receive the subsidy as well as truthful subsidy. So also PW38 admits Exs.P133 and P269, but did not receive subsidy and truthful subsidy. PW39 admits Exs.P188 and P248, but the money was received by the father of the witness. PW42 admits Ex.P134 and P135; he also says that he did not receive any subsidy or truthful subsidy.
28.PW44 admits Exs.P125 and P129. PW45 admits Ex.P229, Exs.P2 to P41. PW46 admits the seeds farming agreement and admits Ex.P8 the invoice. PW49 also admits the seeds farming agreement, sale etc., and admits P2 to P72. PW53 admits Ex.P220. PW34 admits Exs.P236 and P239. https://www.mhc.tn.gov.in/judis 16 PW55 admits Exs.P230 and 242. PW58 admits Ex.P108. But he denied that he received the subsidy and truthful subsidy. These witnesses admitted that there was seed farming agreement between themselves and the Department and sold the seeds, but there is some denial with regard to the receipt of premium and truthful subsidy.
29.The defence heavily relies upon the evidence of these people to show that absolutely, there was no misappropriation of Government money and violation of the Government Rules and Procedures to be followed for forming the seeds farming agreement and purchase, etc.
30.Then the prosecution relied upon the above evidence of the Village Administrative Officers namely PW15, PW16, PW20 and PW23 for the purpose of argument that the documents have been created in the fictitious persons who were non existent or dead persons.
31.PW15-Manivannan has stated that during his investigation, he made enquiry, whether any person by name Basheer was residing in Karuppur village. On enquiry, he came to know that no such person was living there.
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32.PW16-K.P.Maiyappan has stated that he made enquiry with regard to the following persons namely Thirunavukarasu, Ramasamy, Sevuga Perumal and he informed the Vigilance Department that the above said persons have not any property in Singampuneri village.
33.PW20-Devarajan has stated that he made an enquiry whether any person in the name of Kalli was living in Manampakki Village and he came to know that no such person was living there.
34.PW36-Chellaperumal has stated that he made an enquiry whether any person in the name of Rajasekaran, Kalailingam were living in the village. He came to know that no such persons are living there. Therefore, these evidences are let in by the prosecution to show that for the purpose of the above said argument.
35.Now we are having the persons who did not exist in view of the concerned Village Administrative Officer, as stated above, has stated that no such persons were actually living in their village.
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36.One set of farmers supported the case of the prosecution and another set supported the case of the defence and among the persons, who supported the defence to some extent denies that they received the premium and the truthful subsidy. This is the factual scenario. With these background, let us go further.
37.PW3-Muthukrishnan was working as Superintendent during the relevant period in Sivagangi. He was responsible for the sale of the fertilizer and pesticides, etc. During 1985-1986 period in the ground nut seeds register, 44 persons were mentioned as beneficiaries. He has spoken to the effect that very same beneficiaries are mentioned in the seed ground nut register Ex.P3 also. The above said purchases were made by A2-Ilangovan, PW4 Sethuraman assisting him. The invoices and receipts were prepared by A2. PW4-Sethuraman and Depot Manager of the above said persons signed in the invoices. He has also spoken to the effect that the farmers used to bring the seeds directly to the depot. The Agriculture Officer filed medical certificate. The genuineness of the persons in the above said process, the 2nd accused has no role to play.
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38.Among the above said 44 beneficiaries, two persons personally brought the seeds. Then two persons Krishnan and Kumar were identified by the Assistant Agriculture Officer and the Instructor. So from his evidence, it is seen that two persons really sold the seeds.
39.PW4-Sethuraman, as stated above, assisting A2. Because of the procurement, he maintained the oil seeds forming register as well as the seeds register, procurement register, etc. As per his evidence, 20 beneficiaries were mentioned in the register. He has also mentioned their names. During March 1986, A2 was on leave. So A1 asked him to take the charge of the duties. But he refused. A1 only handed over the vouchers, receipts, etc., and Gunasekaran signed in those documents as if money was paid before him. He prepared the receipt benefited by one Thangamuthu, Thambidurai, Kanchivanam, Ayyavu, Ramasamy and Chellam.
40.The beneficiaries wanted the money in cash. In all the invoices, the persons, who signed in Ex.P5 made the other signatures also. Similarly, the address also https://www.mhc.tn.gov.in/judis 20 prepared in the invoices in the name of Jeyaprakash, Arockiasamy, Bose, Krishnan and Karuppaiah. When A2 signed as if money was paid in his presence, he has also spoken to the effect, whether any such procurement has been made and they are the real farmers is not known to him. He has further stated that on the instruction given by A2, he prepared the invoices officially. So according to him, the invoices that have been prepared in favour of Bose Krishnan and Karuppiah are true and he maintained all the registers.
41.It is further seen that except from the above said persons, A2 has not procured the seeds from any other farmers. In respect of the very same year, he has also purchased seeds from 38 other persons, there was no malpractice. So this piece of evidence is heavily relied by A2 to argue that the procurement that has been made by him, was true one and no malpractice is involved.
42.PW5 entirely supported the defence version, but he was not treated as hostile by the prosecution. He has stated that right from the seed farming agreement upto the procurement, he assisted A2. So his evidence did not https://www.mhc.tn.gov.in/judis 21 also support the prosecution version and through him, during the course of cross examination, number of documents have been marked on the defence side.
43.PW6 was working as Field Inspector and during the year 1985-1986, he found that some bogus entries have been made in the seeds farming register, mentioning six persons. But actually, no such seeds farming agreement was entered and cultivation was undertaken. He has spoken about Exs.P56 to P66. But the evidence is with regard to one Raman, who is not the appellant herein. Since he was not working during the relevant point of time in that office, his evidence cannot be relied upon in toto. Registers were maintained by A3. He is also making his contradiction. At one point of time, he has stated that he does not know, whether the seed farming was undertaken by six persons. At no point of time, he would say that he physically verified the same. Since, he is speaking about the documents, which are not relevant for discussion, his evidence need not be taken into account.
44.PW7 was working as Assistant Agriculture Officer. He was assisting A2 and he has also supporting the case https://www.mhc.tn.gov.in/judis 22 of the accused and he has stated that Exs.P26, P35, P77, P78 to P96 are genuine documents. But he was not treated as hostile. Through him, the defence has exhibited certain documents.
45.PW8 has stated that A2 was on leave during the relevant time. So A1 asked him to take in charge of his seat, but he refused. So he was issued with a memo by A1. But later, it was quashed. He signed under compulsion in the files Exs.P90 to P111. So according to him, in respect of the above said 11 farmers, illegality has been committed at the instance of A1. So according to him, without properly verifying the beneficiaries, under compulsion made by A1, he signed in the documents. A suggestion was made by him on the witness namely PW7 to the effect that the financial year was going to end within 4 days and before end of the financial year, the above said funds must be utilized. That was not done. So only, he was issued with memo. This suggestion assumes importance and it will be discussed in the later portion of the judgment.
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46.PW9, PW10 and PW11 evidence is not relevant in respect of the appeals. PW14-Jesudhasan was working in the Oil Seeds Department and he made auditing and inspection in the year 1985-1986. He has spoken about the general procedure, that got to be adopted. He received complaint that A1 did not disburse money to some farmers. So he inspected the records. He found that totally, Rs.21,750/- was not disbursed to the farmers. So he issued a charge memo to A1. It appears that the above said memo has been subsequently quashed.
47.From his evidence, it is seen that A1 failed to disburse Rs.21,780/- to the farmers. So this according to the prosecution, amounts to misappropriation and misconduct.
48.With regard to this piece of evidence, A1 would say that there is no illegality, while preparing the bill and disbursing the money. Originally, he was also added as an accused and later, deleted. So we will deal this piece of evidence with regard to the non disbursement of the amount later. He would further say that right from the seed farming agreement upto the procurement, there https://www.mhc.tn.gov.in/judis 24 was no illegality. But as mentioned above, illegality was committed during the course of disbursement period of the above said amount. He has also stated that on the basis of the complaint, he made spot visit and some of the farmers have made allegations against A1. In respect of A2 and A3, he would say that they did not commit any illegality and no complaints were also made against them.
49.PW17 was working as Seeds Officer in Sivagangai and at that time, A1 procured 107-1/2 tones of seeds from 55 farmers and that was stored in the Godown, but the farmers did not sell the same. Those procurements have been made by the approver namely Gunasekaran. He would say that in respect of the procurement made by A1 and A2, there was no illegality. This evidence has been relied on by A1 to show that procurement has been properly made and there is no illegality, the prosecution failed to prove that purchase was made not from the true owners, but in the open market.
50.As pointed by the learned counsel appearing for A1, there is no clear evidence also, from whom, the above said seeds were purchased. We will discuss this point in the later part.
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51.PW18 was working as Auditing Assistant during the relevant period and his evidence is heavily relied by the prosecution to show that only at the instigation of A1, the above said bills have been prepared and actually, disbursement was not made. He would say that whether actually, the amount was disbursed or not is not known to him. Several documents have been marked. Among the above said documents, Exs.P135 to P250 are not related to A2 and A3. In respect of the above said subsidy amount of Rs.21,780/-, which was already spoken, he would say that at the instance of A1, bill was prepared and was sent, on 25/01/1986. In the meantime, A1 was transferred. The amount was en-cashed on 30/05/1986. The successor namely Kaliappan alleged to have stated that A1 demanded the above said amount of Rs.21,780/- to be paid to him. Later, the above said amount was handed over to A1, in turn, he received the receipts. The above Kalliapan has been examined as PW52. He would say that the above said amount of Rs.21,780/- was disbursed to the farmers, on 30/05/1986. The above said Sankaran prepared the bills, it was counter signed by A1. PW56 was the Field Officer. He supported the defence.
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52.PW61 is the approver. I have detailed the approver evidence at the initial stage itself. So from the above said discussion, we see that against two groups of official witnesses, one set supported the defence version and another supported the prosecution version to some extent. In the light of the above said contradictory evidence, the background of the case must be born in mind.
53.The scheme, which has been announced by the Government was for the promotion of purchasing quality oil seeds. So for that purpose, they released the funds to the farmers, who have sold the seeds officially, entered in the agreement, claiming the same with the assistance and support of the beneficiaries, harvesting, preparing, processing and again resell the same to the farmers. In the above said process, premium and truthful subsidy were given to the farmers as incentive for the purpose of improving the products. Target has been fixed every year by the Government. Here is the case, it is evident from the facts and circumstances of the case that A1, who was responsible for sending the report for having achieved the target, alleged to have created document in https://www.mhc.tn.gov.in/judis 27 the fictitious persons and submitted report as if he has reached the target. This is the entire factual background. So in the process of the above said scheme, right from the Additional Director down to the Field Officer all have their own responsibility. It is not a single handling process, but at each and every level, checks and balances have been made. In spite of that, the present malpractices and alleged misappropriation, charge memos have been issued to A1 and later, it was quashed and the approver was allowed to retire. But whereas these appellants are still facing the criminal prosecution. Investigation has been undertaken to find out the role that has been played by each and every persons in the above said process. Some have been ruled out, some have been examined as witnesses and some have not been charged at all. So had the investigation been undertaken in a proper manner to find out the role that has been played by each and every persons, then all the persons, who are involved in the malpractices would have been brought to book. That was not properly undertaken. This is the first lapse on the side of the prosecution.
54.With these observations, let us take the https://www.mhc.tn.gov.in/judis 28 independent role that has been played by A1 and A2.
55.Against A1, there is a strong indication to the effect that he was the man, who was responsible for the above said malpractices. It is on record to show that when the second accused went on leave for three days, he asked the approver to prepare the documents as if the seeds have been procured from true farmers.
56.As mentioned earlier, some of the farmers stated that they have entered into Farm agreement and also sold the seeds. Some of the farmers says that they did not. So in respect of the farmers, for whom, there is no agreement, now has to be taken into account to see whether the charges have been proved. Before that, the evidentially value of the approver namely Gunasekaran must be taken into account.
57.The learned counsel appearing for the first accused would heavily say that throughout the statement, the above said Gunasekaran has pretended as if he is the son of Jesus Christ, man of good conduct and not involved in malpractices and correction of records, etc.
58.According to the learned counsel appearing for https://www.mhc.tn.gov.in/judis 29 the first accused, the approver can be taken into account only when it is in the shape of the inculpatory. Exculpatory of the evidence is not permissible to treat the accused as an approver. So according to him, he does not satisfy the parameter stated under section 306 Cr.P.C. For that purpose, he would say that he has admitted that he visited the concerned Village, on 24/07/1985 for the purpose of procurement. In his dairy, he has mentioned that he visited various places for the purpose of procuring seeds. So pointing out this, the learned counsel appearing for the first accused would submit that it is against the prosecution version. According to the prosecution, no seeds were procured. But as mentioned earlier, some of the farmers supported the defence version that they sold the seeds to the Department. So the approver version that there was no seed Farming agreement and there was no procurement from the true farmers is also not correct. So it appears that the approver contradicts himself with some certain material particulars. So his evidence to the effect that about 98635 kgs have been procured from non-farmers and documents have been created is also not supported by the evidence. So his evidence can be discarded. https://www.mhc.tn.gov.in/judis 30
59.In Ex.P113, the above said Kalliappan disputed his signature. As mentioned earlier, it is the contention on the part of the appellants that their signature was not sent for the expert examination. In the acknowledgement, one Natarajan, the Agriculture Officer signed the certificate. So also the Depot Manager in the down the Agricultural officer and A1 has counter signed the certificates. But the above said Natarajan, who certificated the acknowledgement is not examined, so also the Depot Manager attached to Singampunari.
60.PW21-Mayandi would say that he did not sell any seeds to the Department and received any money. He disputed his signature in the invoice Ex.P186. Here also, we find that one Agriculture Officer, counter signed the same, so the Depot manager, who was in turn counter signed by A1 and the approver. The above said Agricultural Officer and the Depot Manager attached to Singampuneri has not been examined.
61.PW22-Santhiagu says that he also disputes the document and one Agriculture Officer, Singampuneri and https://www.mhc.tn.gov.in/judis 31 Depot Manager, Singampuneeri signed in the document. As stated above, they were not examined. It was counter signed by A1 and the approver.
62.Similarly, PW23-Sekar says that the above said persons namely Agricultural Officer and the Depot Manager have not been examined as witness and the counter signed by A1 and the approver. In the document, the above two officials namely the Agricultural Officer, Singanpuneri and the depot Manager, Singampuneri, signed, wherein A1 and the approver has counter signed, in Ex.P159, the Agricultural Officer and Depot Manager, Sivagangai also signed. These persons have not been examined. The Agricultural Officer, Singampuneri and the Depot Manager, Singampuneri signed in the certificate and the acknowledgment, which was counter signed by A1 and Approver. In Exs.P14 to P16, the above said Agricultural Office, Sivagangai and the Depot Manager, Sivagangai has signed in the acknowledgement of the receipt. Counter signed by A1 and the approver. The above said Natarajan and the Depot Manager were not examined.
63.PW28-Chellam would admit that he sold the oil https://www.mhc.tn.gov.in/judis 32 seeds to the Department and received the sale price. But he did not receive the premium and truthful subsidy. But as admitted by him, he signed in the vouchers as if he received the premium amount also. Now he would say that he did not receive the premium amount, so also, the truthful subsidy. Having admitted his signature, he would turn around that he has not received the above said amount. So, his evidence can be discarded.
64.PW29-Madhavan also would admit his signature in Exs.P124 and P135. But he says that he did not receive any money and he never cultivated any oil seeds. Those signatures have been obtained, when he visited the Agricultural Office for purchasing the pesticides and only at that time, he made the above said signature. So it appears that he is supporting the case of the prosecution. He also denies to the effect that he entered into the farm agreement with the Department. But however, as mentioned earlier, the above said Agricultural Officer and the Depot Manager have not been examined.
65.In Ex.P254, the Agricultural Officer, Elaiyankudi and the Depot Manager, Elaiyankudi signed, wherein A1 and https://www.mhc.tn.gov.in/judis 33 the approver counter signed. Here also, the Agricultural Officer, Eliayankudi and the Depot Manager, who certified the acknowledge of the procurement has not been examined.
66.PW40-Arumugam would say that the signature found in the invoice and the receipts prepared made by him. He would further say that he is not owning any property and he never cultivated ground oil seeds. So this shows that he is also a person, who did not enter into any agreement with the Department.
67.PW41-Simiyon would say that the signature found in Ex.P168 was not made by him. He never entered into any agreement with the Department for cultivating oil seeds. Here also, we find that it is signed by one Agricultural officer, Sivagangai and Depot Manager, Sivagangai showing the receipt of the procurement of oil seeds, counter signed by A1 and approver. The above said Agricultural Officer, Sivagangai and the Depot Manager were not examined as witnesses.
68.Let us take the case of the second accused first. Because, he is involved totally, in eight farmers cases, https://www.mhc.tn.gov.in/judis 34 among which, the Investigating Officer must say that there is no dispute with regard to six farmers. Only two farmers have been left. Among them, on Kamaiyasamy was examined as PW13 and another person is one Kulu.
69.PW13, as mentioned earlier, has given a strong indication to the effect that he did not sign in the vouchers, etc, document and no agreement was also entered into between himself and the Department for cultivating the ground nut oil seeds. So this is heavily relied upon by the prosecution to show that this document is a forged one.
70.The learned counsel appearing for the second accused would submit that PW5, who was the Officer in- charge has given a clear indication to the effect that PW13 received money by selling the ground nut seeds. The invoice was also admitted by PW5. According to the learned counsel appearing for the appellant/A2, the evidence of PW13 without any corroboration should not be accepted. According to him, this document was not sent for expert opinion. This is the first argument. https://www.mhc.tn.gov.in/judis 35
71.The next argument is that as per the document Ex.D23, Kamaiyasamy has received the drought relief for the year 1983-1984 at subsidized rate for cultivating the ground nut seeds. This document is marked as Ex.D23 through PW5. The total quantity is mentioned as 100 kgs. He signed in the voucher. When we compare the signature with that of the disputed signature Ex.113, I find that it differs. It is not the case of the prosecution that this document is also a created document. Not only the wife of the Kamaiyasamy, but he also received similar quantum under the drought relief scheme.
72.By relying upon this circumstance, it has been contended by the learned counsel appearing for the A2 to the effect that PW13 is not a genuine person, who speaks the truth. But unfortunately, this document was not confronted with PW13, which was suggested to the Investigating Officer. But however, he stated that he has no knowledge about that. Now whatever, it may be, it is seen that PW13 is not telling the truth before the court. So his evidence should not be taken into account for recording conviction. The trial court has committed error in relying upon evidence of PW13 to show that https://www.mhc.tn.gov.in/judis 36 Ex.P113 is a created document.
73.Now coming to the other person namely Kulu, it is the evidence of PW43 that no such person was living in that village. As per his enquiry like that of the above said Kamiya, the above said Kulu also received subsidy similarly, under the drought relief scheme. As per Exs.D25 and D26, this is relevant to the year 1983-1984. So this document shows that Kulu was living in that area. Apart from that, the death certificate was also produced along with the statement that was given by the accused at the time of 313 Cr.P.C questioning. He is stated to have died on 12/01/1990. This document cannot be disputed.
74.It is a clear admission on the part of the Investigating Officer to the effect that he did not make any special visit to verify the availability or non availability of the beneficiaries in person. He has recorded the statement of the Village Administrative Officer to see whether such persons are living or not. These are the lapses during the course of investigation that is committed by the Investigating officer. Based upon the evidence of the Village Administrative Officer, conviction has been recorded against A2. But in view of https://www.mhc.tn.gov.in/judis 37 the documentary evidence, I am of the considered view that the prosecution has not successfully brought the guilt of A2 to say that he is also involved in the fabrication of records.
75.More-over, it is also the evidence of the Investigating Officer to the effect that the money to the beneficiaries were not disbursed in his presence. So the question of fabrication of false records and misusing of Government fund does not attract against A2. So the finding of guilt recorded by the trial court against A2 is liable to be set aside and accordingly, set aside and A2 is entitled to be acquitted of the charges framed against him.
76.Now coming back to A1, as stated above, every one is pointing their finger to A1 for the entire episode. A1 has signed in Exs.P139, P148, P159, P185, P218 and P254.
77.He made counter signature, as mentioned above in Exs.P139, P159, P185, P218 and P168. All the documents have been signed by the Agricultural Officer and Depot Manager, Singampuneri. Ex.P146 was signed by the https://www.mhc.tn.gov.in/judis 38 approver, Agricultural Officer of Singampuneri and the Depot Manager, Singampuneri, signed in Ex.P254 and counter signed by A1. Ex.P254 was signed by the Agricultural Officer and Depot Manager of Ilanyankudi, in which A1 has counter signed. The evidence of PW13 has been rejected by me for the above said reasons. Similarly, the evidence of PW21 has to be rejected on the ground that Kullu was available in the village and died on 12/01/1990. So his evidence also goes.
78.PW22 has spoken about Ex.P148 and he denied the signature. The approver evidence was also rejected by me for the reasons stated above. The Agriculture Officer and Depot Manager were not examined. So only the evidence of PW22 is available. When we compare the signature found in the deposition with that of the document, it clearly differs. It is not the case of the accused that some other person in the name of Santhiyagu is also available in the village. He has simply stated that he entered into the agreement for supply of oil seeds and received the money. There is nothing brought on record to disbelieve his evidence. So, it has to be accepted.
https://www.mhc.tn.gov.in/judis 39
79.Similarly, PW23 is also very clear in his evidence to the effect that there was no such agreement and sale. When we compare his signature with that of the disputed signature in Ex.P139, it clearly differs. So there is nothing on record to discard his evidence. To the same effect, PW24-Ayyasamy denied the signature in Ex.P218. His signature is also varies. PW25-Thangamuthu also disputed that he did receive the premium and truthful subsidy. But however, he admits his signature in Exs.P5 and P11. He would also admit that he received money for the seeds. So, his evidence is half hearted. His evidence can not be taken as supporting neither the case of the prosecution nor the case of the accused. So his evidence can be discarded. PW27-Muthaiah is also very clear in his evidence that there was no such Farmer agreement and sale etc. Exs.P185 and P195 are disputed documents. So he is also very clear in his evidence that there was no farming agreement, sale, etc.
80.PW28-Chellam would say that he sold the seeds and received the money, but did not receive the premium and truthful subsidy. On enquiry, it was informed that he was https://www.mhc.tn.gov.in/judis 40 not given the subsidy and truthful subsidy, but only the signatures were obtained. It appears that he is giving contradictory statement. When he admitted his signature in the document, his evidence that he did not receive the money as mentioned in the document cannot be taken to be true. So this evidence can also be discarded.
81.Now coming to the evidence of PW32, he would say that there was no Farming agreement, there was no sale and receiving of money. So he disputed his signature in Ex.P189. He has stated that he used to put his thumb impression, but in the document, the signature is available. A suggestion was made to him that another one Arumugam, S/o.Muthusarvai was also residing in the village. But he died five or six years back. He admits that during 1985-1986, he cultivated ground nut seeds. So his evidence shows that some other person was also living in the area. So, his evidence can be discarded.
82.In view of the discussion made above, after discarding Exs.P13, P21, P25, P28 and P40, the evidence of PW22, PW23, PW24, PW27 and PW32 are available. https://www.mhc.tn.gov.in/judis 41
83.Now the next point is that then, who forged the above said documents. As mentioned earlier, every one points appellant namely A1. PW18, who was the Chief Ministerial Officer, in whose presence the money has to be given to the parties has also stated that all the documents have been handed over by A1 in complete form, whether it was given to the farmers or not was not known to him. Similarly, he would also say that whether the persons, who supplied the ground nut oil seeds were not the true farmers is also not known to him. He completely disowned his responsibility, for which also he was issued with charge memo like that of A1 and A2. Later, they have been closed. Now whatever it may be, these documents have been forged as if money has been given to the true farmers.
84.Now the learned counsel appearing for the appellant/A1 would submit that in the above said circumstances, there was no pecuniary loss to the Government and in-turn pecuniary gain to the appellant/A1. Even as per the case of the prosecution, as spoken by the Investigating Officer, stock register was verified and found to be tallied with that of the https://www.mhc.tn.gov.in/judis 42 purchase vouchers, etc.
85.As mentioned above, the case of the prosecution is that seeds have been purchased in the open market for the purpose of achieving the target. It is also admitted by the Investigating Officer that the seeds have been purchased in the open market and money has also been paid to the farmers. But some of them are fictitious persons as mentioned above. So instead of purchasing oil seeds from the true farmers, open market has been used by the accused persons. It appears that right from the Agricultural Officer upto A1 have played role. It is not a single handling episode to achieve the target. It appears that all the officials joined together and created false records.
86.No doubt, there is no pecuniary loss to the Government. Since in such circumstances, the offence under section 13(1)(d) of the Prevention Corruption Act may not be attracted. So far A2 is concerned, there is no pecuniary loss to the Government. But in so far as the other aspects of the truthful subsidy, the case of the prosecution is that even the truthful subsidy, which was claimed before receiving of the test result from the Lab https://www.mhc.tn.gov.in/judis 43 was received is against the Rules. But that amount was given to A1. Later, only vouchers have been received from him. So, this is the major allegation against A1.
87.The learned Additional Public Prosecutor would submit that this amounts to misappropriation and pecuniary advantage. But the prosecution is missing one important factor. Even as per the case of the prosecution, as mentioned earlier, A1 played a major role. A1 was transferred on 22/05/1986 and the TC bill was prepared, on 21/05/1986. But it is alleged that the above said amount was encashed, brought to the daily cash book and in turn handed over to A1, on 30/05/1986. On that date, A1 was not in the post. Only Kaliappan, who has been examined has joined service namely he is the successor of A1 and joined in the office, on 22/05/1986.
88.As mentioned above, A1 was transferred, on 21/05/1986. He would say in his evidence that on 22/05/1986, he relieved A1. At that time, he found that TC bills have been prepared and counter signed by A1. Total amount is Rs.21,280/-. Later, he was told that on 30/05/1986, the above said amount was paid in the https://www.mhc.tn.gov.in/judis 44 presence of the Agricultural Officer by PW18-Sankaran. The document also shows that on 30/05/1986, the amount was given to the farmers. Those bills were marked as Exs.P116 to P118.
89.Here, the complainant comes with complete mess. The reason being that the money was not claimed till A1 was relieved from the office and only, on 30/05/1986, the money was claimed from the Treasury, brought to the cash book, in turn to the farmers, naturally, PW52 was the Officer on the spot, the money ought to have been given to the farmers only in his presence. But against the procedure, it has been stated by PW18 that the money was given to A1, later he supplied the vouchers. This is totally a wrong statement. PW18 went to the extent by stating that no voucher has been obtained from the appellant, when the money was handed over to him. Probability, PW18 would have been booked for misappropriation. He is barred to say that the money was given to the appellant. As per the procedure, after encashing the money, it might have been given to the farmers in the presence of the above said Kaliappan. Absolutely, there is no evidence to say that the above https://www.mhc.tn.gov.in/judis 45 said amount was given to A1. So the case of the prosecution that this amount was misused by A1 is totally baseless and groundless also. So there was no pecuniary advantage to A1, the prosecution has also failed to prove the same.
90.Now coming to section 5 of the Prevention of Corruption Act, 1947:-
“5. Criminal misconduct in
discharge of official duty - (1) A
public servant is said to commit the of
fence of criminal misconduct :-
(a) ..
(b) ..
(c) ...
(d) if he, by corrupt or illegal
means or by otherwise abusing his
position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or”
91.From the discussion made above, the prosecution has failed to prove the pecuniary advantage and in turn loss to the Government. From this chargé, the https://www.mhc.tn.gov.in/judis 46 appellant/A1 is liable to be discharged and recording the guilt is also set aside.
92.Now the other charges that are available against A1 is under section 120(B), r/w 167, 447-A, 409 and 420 IPC. For the reasons stated above, section 409 IPC is also not proved beyond reasonable doubt. He is entitled for acquittal for the offence under section 409 IPC.
93.Section 167 IPC reads as follows:-
“167. Public servant framing an incorrect document with intent to cause injury.—Whoever, being a public servant, and being, as 1[such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” https://www.mhc.tn.gov.in/judis 47
94.Section 447-A IPC reads as follows:-
“477A.Falsification of accounts.— Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any 2[book, electronic record, paper, writing], valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such 2[book, electronic record, paper, writing], valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or https://www.mhc.tn.gov.in/judis 48 with both. Explanation.—It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed.]
95.Section 420 IPC reads as follows:-
“420.Cheating and dishonestly
inducing delivery of property.—Whoever
cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to https://www.mhc.tn.gov.in/judis 49 fine.”
96.From the discussion made above, the appellant/A1 is liable to be convicted for the offences under sections 167, 477-A and 420 IPC. The prosecution established the guilt under sections 167, 477-A and 420 IPC. So the findings of the trial in this aspect requires no interference. Now the trial court has imposed the punishment of three years RI each, upon the appellant/A1 for the above said offences and also imposed fine amount.
97.Now the question, which arises for consideration is whether the above said sentence is liable to be confirmed. Here, comes the facts, circumstance and the motive for the commission of the offence. It is only to avoid worst for not having achieved the target, with the aim to use the fund allotted before the end of the final year, this led to the offences alleged to have been committed. All the officials are responsible and no can be spared. Some of the persons deleted by the Investigating, now they are not before this court. Simply because other persons are also involved the commission of https://www.mhc.tn.gov.in/judis 50 offence by A1 will not be washed away. The fact remains that it is the occurrence of 1985-1986 and almost 36 years lapsed. The learned counsel appearing for the A1 would submit that A1 is now 85 years and no purpose is going to be served by sentencing him to undergo the imprisonment.
98.No doubt that under compelling circumstances, the above said offences said to have been committed by A1. Being the Public Officer, he is not expected to create the documents even under the compelling circumstances. Situation may not save the illegality. The public servant, that too, who occupied the high position ought to have maintained the values. But here, they have chosen a wrong path to achieve the target.
99.So considering the above aspects, I am of the considered view that the punishment imposed upon A1 to the extent of 3 years for the offences under sections 167, 477(A) and 420 IPC, may be reduced to 6 months RI and it will meet the ends of justice. The fine amount that has been imposed for the above said offences shall remain unchanged. So far as the fine amount against sections 5(2), 5(2) r/w 5(1)(c) and 5(1)(d) of the https://www.mhc.tn.gov.in/judis 51 Prevention of Corruption Act is concerned, it is liable to be refunded to A1. All the sentences mentioned above are ordered to run concurrently.
100.In the result, Crl.A(MD)No.366 of 2016 filed by A2-P.Ilangovan is allowed and the conviction and sentenced imposed upon A2 is set aside and he is acquitted of all the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
101.So far as Crl.A(MD)No.368 of 2016 filed by A1- K.Ramaiah is concerned, it is partly allowed and conviction and sentence imposed upon him for the offences under sections 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and section 409 IPC are set aside and he is acquitted from the above said charges. The fine amount paid for the said offences of sections 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and section 409 IPC is ordered to be refunded to A1. But the conviction under section 120-B r/w 477-A, 167 and 420 IPC are confirmed. But however, the sentence is modified to six months of RI for each https://www.mhc.tn.gov.in/judis 52 offences and the fine amount for the above said offences are confirmed. The above said sentences are ordered to run concurrently. The period of detention already undergone, if any by A1 is ordered to be set off. The appellant/A1, after adjusting the period of imprisonment already undergone shall undergo imprisonment for the remaining period.
29/09/2022 Index:Yes/No Internet:Yes/No er To,
1.The Special Court for cases under the Prevention of Corruption Act, Sivagangai District.
2.The Inspector of Police, Vigilance and Anti Corruption Wing, Sivagangai, Sivagangai District.
https://www.mhc.tn.gov.in/judis 53 G.ILANGOVAN,J ER Crl.A(MD)Nos.366 and 368 of 2016 Dated:29/09/2022 https://www.mhc.tn.gov.in/judis 54 https://www.mhc.tn.gov.in/judis