Madras High Court
Subramaniyan vs State By on 30 March, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/03/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.R.C.(MD) No.32 of 2011 Subramaniyan ..Petitioner Vs State by Inspector of Police CCIW CID PS, Thanjavur Crime No.7/1993 ..Respondent Prayer Criminal Revision case filed under Sections 397 r/w 401 of Cr.P.C. to call for the records of the learned Principal Sessions Judge, Thanjavur in Crl.A.No.10/2010 by Judgment dated 26.04.2010 modifying the conviction and sentence recorded by the learned Judicial Magistrate No.II, Thanjavur in C.C.No.975/1996 by the judgment dated 17.10.2005 and set aside the judgment of conviction of courts below. !For Petitioner ... Mr.M.Karunanithi ^For Respondent ... Mrs.S.Prabha, Govt. Advocate (Crl.Side) :ORDER
The accused in C.C.No.975/96 on the file of the learned Judicial Magistrate No.II, Thanjavur, who suffered a conviction in the trial court for an offence under section 408 IPC r/w section 34 of IPC, has approached this court with the present criminal revision case after unsuccessfully prosecuting an appeal before the appellate judge, namely the learned Principal Sessions Judge, Thanjavur in Crl.A.No.10/2010. The said case came to be instituted on a final report submitted by the Investigating Officer in Crime No.7/1993 on the file of CCIW CID Police Station, Thanjavur. Along with the revision petitioner, one Ravi Ganesan was also charge-sheeted and the said charge-sheet was taken on file by the trial court as C.C.No.975/1996. Pursuant to the continued absence of Ravi Ganesan, who had been shown to be the first accused, the case was split up and the case against the said Ravi Ganesan was given a separate C.C. number, namely C.C.No.141/2000. Thereafter, the revision petitioner alone was tried for the said offence, which resulted in his conviction by the trial court. The same was confirmed by the appellate court on appeal.
2. The case of the prosecution runs as follows:
One Palanimanickam was employed as Supervisor in Chellappanpettai Primary Agricultural Co-operative Bank during the relevant period. The accused in the split up case, namely C.C.No.141/2000 was functioning as Secretary of the said Co-operative Bank, whereas the revision petitioner Subramaniyan was working as a salesman. The said Palani Manickam sent reports on 05.01.1990 and 10.02.1990 to PW.5-Mani, the Managing Director of the Central Co-operative Bank informing that the revision petitioner and the other accused, namely Ravi Ganesan, had misappropriated the funds of the said Co-operative Bank. PW.5, in turn informed the same to PW.1-Narayanasamy, Deputy Registrar of Co-Operative Societies by letters dated 23.01.1990 and 26.02.1990, marked as Exs.P1 and P2. PW.1- Narayanasamy, the Deputy Registrar of Co-Operative Societies, under Ex.P3-Order dated 19.03.1990, directed the Sub-Registrar of Co-Operative Societies, Thanjavur to conduct an enquiry under Section 81 of the Tamil Nadu Co-Operative Societies Act. PW.6-Ganesan, the then Sub Registrar of Co-Operative Societies, Thanjavur conducted enquiry under section 81 of the Tamil Nadu Co-Operative Societies Act on 28.03.1990 and completed the enquiry on 12.06.1990 and upon such completion, he submitted his enquiry report under Ex.P9 to the Deputy Registrar of Co-Operative Societies, Thanjavur. By then PW.4 - Ramakrishnan, became the Deputy Registrar of Co-Operative Societies. On receipt of Ex.P9- report regarding the alleged misappropriation committed in Chellappanpettai Primary Agricultural Co-Operative Bank and upon considering the report of PW.6- Ganesan, PW.4-Ramakrishnan, Deputy Registrar of Co-Operative Societies, Thanjavur, preferred a complaint under Ex.P8 on 17.09.1993 to the Superintendent of Police, CCIW CID, Chennai regarding the malpractices and misappropriation in the said co-operative agricultural bank between 07.09.1989 to 09.02.1990. The Superintendent of Police, CCIW CID, Chennai forwarded the complaint to Deputy Superintendent of Police, CCIW CID, Cuddalore, who in turn redirected the same to the Inspector of Police, CCIW CID, Thanjavur for investigation. One Mr.Manickavasagam, Inspector of Police, CCIW CID, Thanjavur, on receipt of the said complaint, prepared Ex.P27-first information report and registered a case on 15.11.1993 in crime No.7/1993 on the file of the said wing for alleged offences punishable under sections 471, 477(A), 408 and 409 IPC. The said Inspector of Police conducted part of the investigation and on his transfer the same was taken over by PW.9-Raja, the successor of Manickavasagam. Before completing the investigation he was also transferred and thereafter the same was taken over by PW.10-Balu, the successor of PW.9. PW.10 completed the investigation and submitted a final report alleging commission of offences punishable under section 408 r/w section 34 IPC by the revision petitioner herein and the co-accused Ravi Ganesan, the case against whom has been split up and separately numbered as C.C.No.141/2000. According to the final report, the revision petitioner and the co-accused Ravi Ganesan jointly committed misappropriation of the funds of the co-operative bank to the tune of Rs.1,738/- and the same was found on inspection and verification of the stock which revealed a shortage of rice, wheat, grocery items and gunny bags used for packing sugar and rice.
3. The said final report was taken on file as C.C.No.975/1996 against the revision petitioner and the co-accused. But the co-accused Ravi Ganesan did not appear for a long time and hence the case against him was split up and assigned a separate C.C.number, namely C.C.No.141/2000. The revision petitioner, on appearance denied the allegations made against him. Necessary charge was framed, read over and explained to him. The revision petitioner, having denied the commission of the offence for which charge was framed, wanted a trial to be conducted. Recording the plea of the accused, a trial was conducted by the trial court, in which 10 witnesses were examined as PWs.1 to 10 and 30 documents were marked as Exs.P1 to P30.
4. After completion of evidence on the side of the prosecution, the revision petitioner herein was given an opportunity to offer explanation regarding the incriminating materials found in the evidence adduced on the side of the prosecution by examining him under section 313(1)(b) of Cr.P.C and also generally in respect of the case against him. He simply denied the evidence of the prosecution witnesses and stated that the witnesses had not spoken the truth. Though the revision petitioner took time for about 10 months for examining defence witnesses, he did not examine any witness on his side. Thereafter he wanted PW.6-Ganesan to be recalled for which he filed a criminal miscellaneous petition and the said petition was allowed. PW.6-Ganesan was present on the day appointed for his further examination. But since the revision petitioner did not avail the opportunity of cross-examining him, the said witness was sent out without being examined further. Even thereafter, the revision petitioner took several adjournments and at last, he examined himself as DW.1. On the side of the revision petitioner, totally five documents were marked as Exs.D1 to D5. Again on another petition filed by the revision petitioner under section 243 Cr.P.C. he was permitted to examine further witnesses and one Ramasamy was examined as DW.2. Thereafter, the revision petitioner did not produce any further witness and was simply protracting the case. Hence the trial court suo motu closed the evidence on the side of the revision petitioner herein and posted the matter for arguments.
5. Upon hearing the arguments advanced on both sides, the learned Judicial Magistrate No.II, Thanjavur evaluated the evidence and came to the conclusion that the offence with which the petitioner stood charged had been proved by the prosecution beyond reasonable doubt. Based on the said finding, the learned Judicial Magistrate No.II convicted the revision petitioner herein for the said offence, namely an offence under section 408 IPC r/w section 34 IPC.
6. Though the revision petitioner was present at the time of pronouncement of judgment holding him guilty of the offence with which he stood charged, he again filed a petition for recalling PW.6-Ganesan for further cross-examination. As the court was of the view that the revision petitioner was bent upon protracting the case and the judgment was ready to be pronounced, the said petition was dismissed. However, after the dismissal of the said petition, the revision petitioner disappeared from the court. Since the revision petitioner deliberately disappeared from the court, he could not be heard regarding the punishment to be imposed and hence the learned trial judge passed an order of punishment sentencing him to undergo two years simple imprisonment and pay a fine of Rs.2,000/- and to undergo two months simple imprisonment in case of default in payment of fine for the offence under section 408 r/w section 34 IPC.
7. The said judgment was pronounced on 17.10.2005. As against the said judgment of conviction and sentence imposed, the revision petitioner preferred an appeal before the learned Principal Sessions Judge, Thanjavur in Crl.A.No.10/2010 and the same was dismissed after hearing both sides confirming the conviction and sentence. That is why the revision petitioner has come forward with the present criminal revision case on various grounds set out in the grounds of revision incorporated in the revision petition.
8. The point that arises for consideration in this criminal revision case is: "whether the judgment of the lower appellate court confirming the conviction recorded and the sentence imposed by the trial court suffers from any defect or infirmity warranting interference by this court in exercise of its revisional power?"
9. Though this case along with the connected criminal cases stood listed for hearing, after notice before admission was given to the respondent, there was no representation for the petitioner. Even then, in order to afford the revision petitioner one more opportunity to have the case argued on merits, the case was adjourned to 24.02.2012 and was listed with the indication that orders would be passed, if the very same state of affairs, namely the absence of representation on behalf of the revision petitioner, would continue. Since there was no representation on the adjourned date also, namely 24.02.2012, arguments of the learned Government Advocate (Crl.Side) representing the respondent were heard, the case was reserved for orders and the case has been kept under the consideration of this court till this day in the hope that the revision petitioner may come forward to argue the matter. But, unfortunately no such thing as expected by this court, did happen. Hence this court deems it appropriate to pronounce an order disposing of the criminal revision case on merits based on the arguments advanced by the learned Government Advocate (Crl.Side) and based on the materials available on record.
10. The revision petitioner was prosecuted before the trial court for an alleged offence under section 408 IPC r/w section 34 of IPC based on the prosecution story that he, as the salesman of Chellappanpettai Primary Agricultural Co-operative Bank, jointly along with one Ravi Ganesan, Secretary of the said Co-operative Bank, committed misappropriation of funds of the co- operative bank to the tune of Rs.1,738/-and the same was found on stock verification made on 05.02.1990. According to the prosecution, shortage of rice, wheat, grocery items and gunny bags used for packing sugar and rice was found. The same was reported by Palanimanickam, circle supervisor to PW.5- Mani, Managing Director of Central Co-operative Bank. PW.5-Mani informed the same under Exs.P1 and P2 - letters dated 23.01.1990 and 26.02.1990 respectively to PW.1-Narayanasamy, Deputy Registrar of Co-Operative Societies, Thanjavur. PW.1 directed the Sub Registrar of Co-operative Societies, Thanjavur to conduct an enquiry under section 81 of the Tamil Nadu Co-operative Societies ACt. PW.6- Ganesan, the then Sub Registrar of Co-Operative Societies, Thanjavur conducted enquiry under section 81 of the Tamil Nadu Co-Operative Societies Act, found out the discrepancies in the accounts and the misappropriation committed by the revision petitioner and the other co-accused and submitted his report to the Deputy Registrar of Co-operative Societies, Thanjavur. PW.4- Ramakrishnan, the then Deputy Registrar of Co-operative Societies, Thanjavur on receipt of section 81 enquiry report preferred a complaint under Ex.P8 on 17.09.1993 to the Superintendent of Police, CCIW CID, Chennai regarding the malpractices and misappropriation in the said co-operative agricultural bank. The same was forwarded to the Inspector of Police, Thanjavur CCIW CID through Deputy Superintendent of Police, CCIW CID, Cuddalore. Based on the same a case came to be registered in crime No.7/1993 on the file of the said police wing. The case was initially investigated by Manickavasagam, the Inspector of Police, CCIW CID, then by PW.9-Raju and lastly by PW.10-Balu, all Inspectors of Police when they functioned as Inspectors of Police of the said police station in succession. On completion of investigation, a charge-sheet was filed. In the trial court, necessary charge was framed and the plea of the revision petitioner was recorded. In the trial, evidence, both oral and documentary, was adduced by the prosecution through PWs.1 to 10 and Exs.P1 to P30 were marked on the side of the prosecution. On the side of the revision petitioner/accused he himself figured as DW.1 and in addition one more person by name Ramasamy was examined as DW.2 and Exs.D1 to D5 were marked.
11. It is an admitted case and clear evidence has been adduced through the prosecution witnesses to the effect that during the relevant period viz. from 07.09.1989 to 09.02.1990, the revision petitioner Subramanian was the salesman and the other accused Ravi Ganesan was the Secretary of Chellappanpettai Primary Agricultural Co-operative Bank. Based on the circle supervisor's report, the Managing Director of Central Co-operative Bank informed the Deputy Registrar of Co-operative Societies, Thanjavur by letters dated 23.01.1990 and 26.02.1990 marked as Exs.P1 and P2 that report from the circle supervisor had been received regarding the alleged misappropriation by the revision petitioner (salesman) and Ravi Ganesan (secretary). Based on the direction of the Deputy Registrar of Co- operative Societies, PW.6-Ganesan, the then Sub Registrar of Co-operative Societies, Thanjavur conducted an enquiry under section 81 of the Tamil Nadu State Co-Operative Societies Act and found that there had been misappropriation to the tune of Rs.1738/- by the revision petitioner and Ravi Ganesan. PW.5-Mani and PW.6-Ganesan have given clear account of the receipt of the report from circle supervisor and the result of enquiry under section 81 of the Tamil Nadu Co-operative Societies Act.
12. PW.4-Ramakrishnan was the then Deputy Registrar of Co-operative Societies and he speaks about the receipt of Ex.P9-report and the fact that a complaint was lodged with the Superintendent of Police, CCIW CID, Chennai by PW.1-the Deputy Registrar of Co-operative societies under Ex.P8. It is obvious from the evidence of PW.3-Dhanapal, PW.4-Ramakrishnan and Exs.P5 and P6, respectively the resolution book and the resolution dated 01.02.1998, the revision petitioner Subrmaniyan, who was the night watchman prior to the said resolution, was appointed as salesman. The duties and responsibilities are enumerated in Ex.P7-resolution, dated 21.03.1998. As per the said resolution, the revision petitioner, as salesman, was responsible for any shortage in the commodities. A copy of the resolution was also served on the revision petitioner, which is evident from the signature of the revision petitioner found in page 160 of the resolution book marked as Ex.P5. A duty was also cast on the salesman to remit the sale proceeds to the Secretary of the Co-operative Bank and obtain a receipt for the same. Necessary entries should also be made in the account books like ledger, day book, bill book, chitta, cash book, stock register etc. He should also make necessary entry in the stock register and certify that the available stocks are correct and place it for the perusal of the secretary of the Co-operative bank. Clear evidence has been adduced through PW.6-Ganesan to the effect that on the enquiry conducted under section 81 of Tamil Nadu Co-operative Societies Act, shortage of stocks was found and it was also found that the funds of the co-operative bank to the tune of Rs.1,738/- was misappropriated by the revision petitioner and Ravi Ganesan.
13. PW.8-Kesavaraj speaks about the registration of the case and initial investigation conducted by Manickavasagam, who is no more. The successive investigating officers have also deposed as PWs.9 and 10. From the oral testimonies of prosecution witnesses and the documentary evidence in the form of Exs.P9-enquiry report, P12-grocery stock register, P13 to P16 - entry book page 42, stock register pages 56, 97 and 96 and Ex.P17-stock list, it is seen that there was a shortage of stocks to the tune of Rs.1,738/-. Exs.P18 to P22, 24, 29 and 30, the statements of Palanimanickam, the revision petitioner and the co- accused Ravi Ganesan, are sufficient to show that there had been misappropriation of funds to the tune of Rs.1,738/- by the petitioner and Ravi Ganesan, who was the secretary. From the said evidence the prosecution was able to prove the charge that the revision petitioner/accused along with Ravi Ganesan committed misappropriation of funds to the tune of Rs.1,738/-.
14. On the other hand, besides trying to protract the case as long as possible, the revision petitioner/accused even after getting orders for recalling some of the witnesses, had not chosen to cross-examine them. At last, the revision petitioner examined himself as DW.1 and one Ramasamy as DW.2 and produced five documents. Ex.D1 is a copy of notice dated 14.12.1991. Ex.D2 is the postal acknowledgment card. The other two documents, namely Exs.D3 and D4 are xerox copies of debit note and receipt and they do not contain any signature. The said documents have been rightly rejected and taken out of consideration as inadmissible in evidence. Even a copy of the letter produced as Ex.D5 does not contain either the date or the signature of the author of the letter and the same was also rightly rejected as unreliable by the learned trial judge. So far as the documents produced as Exs.D1 and D2 are concerned, it is obvious that after the shortage was found out and enquiry was conducted, the revision petitioner wanted to deny liability and in order to escape from the liability, he seems to have given such a notice. Such an attempt made by the revision petitioner did not yield any fruitful result, as the trial court rightly held that simply because Ex.D1 -notice was given, it cannot be said that the revision petitioner is absolved from his liability fixed as per the appointment order and the resolution fixing the duties and liabilities of salesman. It is also pertinent to note that one Ramasamy examined as DW.2 simply pleaded ignorance and absence of knowledge regarding the facts of the case and the documents produced in this case. Hence his evidence is not useful either to show that the revision petitioner was innocent or that the prosecution case was not a true one.
15. The learned Judicial Magistrate No.II, Thanjavur on a proper appreciation of evidence and clear understanding of law, has rightly held that the revision petitioner along with one Ravi Ganesan had committed misappropriation of funds of Chellappanpettai Primary Agricultural Co-operative Bank, in which he was employed as salesman, to the tune of Rs.1,738/- between 07.09.1989 to 09.02.1990 and that thus he was guilty of an offence under section 408 r/w 34 IPC for which he was tried. The punishment imposed by the trial court also cannot be termed either harsh or disproportionate. When the same was challenged before the appellate court, the appellate court, on a re-appreciation of evidence, concurred with the findings of the trial court, both in respect of conviction and in respect of sentence. This court also, on perusing materials available on record, is of the considered view that there is no scope whatsoever for interfering with the concurrent finding of the courts below holding the revision petitioner guilty of the offence under section 408 IPC r/w 34 IPC and also with the order of sentence passed by the trial court and confirmed by the appellate court.
16. In this regard it is pointed out that the revision petitioner had the guts to file a petition when the result of the case holding him guilty of the offence was announced in the open court and thereafter simply slipped away from the court, pursuant to which, the learned Judicial Magistrate dismissed the said petition and pronounced the order of sentence without hearing the revision petitioner/accused regarding the sentence to be imposed, as he had made it impossible by disappearing from the court after hearing the verdict that he was found guilty. Though an appeal was filed and the appeal resulted in the dismissal of the same confirming the judgment of conviction recorded and the sentence imposed by the trial court, which is sought to be challenged in the present criminal revision case, once again the revision petitioner has adopted the very same method of leaving the case un-represented.
17. For all the reasons stated above, this court comes to the conclusion that there is no defect or infirmity in the judgment of the appellate court confirming the conviction recorded and sentence of imprisonment and fine imposed by the trial court and there is no scope whatsoever to interfere with the same in exercise of the revisional power of this court and that the criminal revision case deserves to be dismissed. Accordingly, the criminal revision case is dismissed.
asr To
1.The Principal Sessions Judge Thanjavur
2.The Judicial Magistrate No.II, Thanjavur