Madras High Court
Rani vs State By on 21 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.Nos.36 & 34 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.07.2022
Pronounced on : 21.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.Nos.36 & 34 of 2019
Rani ... Petitioner
(in Crl.RC.36/2019)
1.Senthamil Selvi
2.Narasamimma Bharathi
3.Valarselvi ... Petitioners
(in Crl.RC.34/2019)
Versus
State by,
The Inspector of Police,
Chidambaram Taluk Police Station,
Cuddalore District. ... Respondent
(Crime No.70 of 2009) (in both cases)
Prayer in Crl.R.C.No.36 of 2019: Criminal Revision Petition is filed under
Section 397 r/w 401 of Criminal Procedure Code, to call for the records on
the file of the Learned Judicial Magistrate No.II, Chidambaram, Cuddalore
District and set aside the order dated 12.12.2018, in C.A.No.1 of 2018 on
the file of the learned II-Additional District Sessions Judge, Chidambaram,
Cuddalore District, in C.C.No.228 of 2009 on the file of the learned Judicial
Magistrate No.II, Chidambaram, Cuddalore District.
https://www.mhc.tn.gov.in/judis
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Crl.R.C.Nos.36 & 34 of 2019
Prayer in Crl.R.C.No.34 of 2019: Criminal Revision Petition is filed under
Section 397 r/w 401 of Criminal Procedure Code, to call for the records on
the file of the learned Judicial Magistrate No.II, Chidambaram, Cuddalore
District and set aside the order dated 12.12.2018, in C.A.No.103 of 2017 on
the file of the learned II-Additional District Sessions Judge, Chidambaram,
Cuddalore District, in C.C.No.228 of 2009 on the file of the learned Judicial
Magistrate No.II, Chidambaram, Cuddalore District.
For Petitioner : Mr.J.Saravanavel
(in Crl.RC.36/2019)
For Petitioners : Mr.T.Sundaresan
(in Crl.RC.34/2019)
For Respondent : Mr. S. Vinoth Kumar,
(in both cases) Government Advocate (Crl. side)
COMMON ORDER
Crl.R.C.No.34 of 2019 is filed by Thamizhselvi/accused No.1, who was the President of the Panchayat; Narasimha Bharathi/accused No.3, was the Village Assistant, working in the Panchayat, and Valar Selvi/accused No.4, was the Makkal Nala Paniyalar working with the Panchayat, and Crl.R.C.No.36 of 2019, is filed by Rani/accused No.2, the Vice President of the Panchayat, aggrieved by the Judgment, dated 09.10.2017 in C.C.No.228 of 2009, on the file of the Learned Judicial https://www.mhc.tn.gov.in/judis 2/12 Crl.R.C.Nos.36 & 34 of 2019 Magistrate No.II, Chidambaram, in and by which, the Trial Court found the accused guilty of the offenses under Section 465 of IPC, and sentenced to undergo Rigorous Imprisonment for a period of two years and imposed a fine of Rs 1,000/- each and in default of payment of fine, to undergo Rigorous Imprisonment, for a period of one month and also found the accused guilty of the offenses under Sections 408, 468, 420 of Indian Penal Code, and to undergo Rigorous Imprisonment for a period of three years each, in respect of each of the offenses and to pay a fine of Rs 2,000/- each, in respect of each of the offenses and in default of payment of fine to undergo two months Simple Imprisonment and the Common Judgment dated 12.12.2018 of the Learned II-Additional Sessions Judge, Chidambaram, in Crl.A.No.103 of 2017 and Crl.A.No.1 of 2018, confirming the conviction and sentence imposed on the accused, however, by acquitting the petitioners for the offense under Section 465 of IPC, thereby, partly allowing the appeals.
2.Since, both the revisions have arisen out of the same case and same Judgment, are taken up together for disposal by way of this Common Judgment.
https://www.mhc.tn.gov.in/judis 3/12 Crl.R.C.Nos.36 & 34 of 2019
3.The gist of the allegations of the case of prosecution is that, the first accused being the President of the Kizhanatham Panchayat, the second accused being the Vice President of the same Panchayat, the third accused being the Village Assistant, working in the same Panchayat and the fourth accused, being the Makkal Nala Paniyalar attached to the same Panchayat, from 23.04.2007 to 28.09.2007, for about 55 days under the scheme framed under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, had made records as if One Balakrishnan, had worked as a labour and disbursed a sum of Rs.4,400/-, while the said Balakrishnan had died on 20.03.2017 itself. Therefore, the four accused were prosecuted for the above said offenses.
4.Heard Mr.T.Sundaresan, learned counsel appearing for the petitioners in Crl.R.C.No.34 of 2019; and Mr.J.Saravanavel, learned counsel appearing on behalf of the petitioner in Crl.R.C.No.36 of 2019; and Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) appearing for the prosecution.
https://www.mhc.tn.gov.in/judis 4/12 Crl.R.C.Nos.36 & 34 of 2019
5.At the outset, as far as the conviction for the offense under Section 468 of IPC is concerned, a perusal of the charge as well as evidence on record would reveal that the investigating agency has not investigated as to who was the maker of the alleged false document viz. the Attendance Registrar signed in the name of Balakrishnan, and in the absence of the same, as per the dictum of the Hon'ble Supreme Court of India, in Sheila Sebastian vs. R.Jawaharaj and Anr.1, the conviction of the four petitioners is unsustainable. Unless the petitioners are alleged to be the makers of the said false document, the said conviction and sentence under Section 468 of IPC, is unsustainable.
6.Now, coming to the offense under Section 420 of IPC, the Hon'ble Supreme Court of India, in the Judgment Guru Bipin Singh Vs. Chongtham Manihar Singh and Anr2, held that if the cheating is pleaded on account of the forging a document and if offense of the forgery is not proved, then the offense under Section 420 of IPC., will also not stand proved. It is useful to extract the relevant passage of the said Judgment of the Hon'ble Supreme Court of India, hereunder:-
1 (2018) 7 SCC 581 2 (1996) 11 SCC 622 https://www.mhc.tn.gov.in/judis 5/12 Crl.R.C.Nos.36 & 34 of 2019 "10. In view of all the above, we agree with Shri Jethmalani that the allegations made in the complaint, even if true, do not make out the case of forgery. Now, if forgery be not there, allegation under Section 420 would fail because the allegation in para 5 of the complaint is that by "forging the said book" deception was caused and members of the public were induced to purchase the same. So, forgery is the principal allegation;
cheating being a consequential offence. If forgery goes, cheating cannot stand. So, the complaint does not make out a case under any of the three sections, namely, 420, 465 and 468. It may be pointed out that Section 468 is intimately connected with Sections 420 and 465."
Therefore, I hold that the prosecution, in this case, has failed to prove the offense under Section 420 of the Indian Penal Code.
7.As far as the offense under Section 408 of IPC, is concerned, the learned counsel appearing on behalf of the first and second petitioners would submit that they are not Clerk or Servants of the Panchayat. Therefore, the offense under Section 408 of IPC is not maintainable, and even assuming the evidence on the face value, they are punishable only for the offense under Section 406 of IPC.
https://www.mhc.tn.gov.in/judis 6/12 Crl.R.C.Nos.36 & 34 of 2019
8.There is force in the submissions of the learned counsel appearing on behalf of the first and second respondent. Therefore, this Court has to see whether, the first and second respondents were guilty for the offence under Section 406 of the Indian Penal Code, and also whether the third and fourth respondents are guilty of the offense under Section 408 of the Indian Penal Code.
9.Admittedly, as per the evidence of P.W.1, the first respondent is the President of the Panchayat and he is the authority for disbursement of the money. The entire work and the wages are entursted with the first respondent as Panchayat President. The second respondent is the Vice President of the Panchayat, and the third and fourth respondent are the Clerks/Servants of the Panchayat respectively. Obviously, the entrustment cannot be disputed. The evidence on record clearly states that in the disbursal register and also in the attendance register, the signature of all the four of the accused, find place in one day or the other of the 55 days complained by the prosecution. Therefore, the entrustment is proved. https://www.mhc.tn.gov.in/judis 7/12 Crl.R.C.Nos.36 & 34 of 2019
10.The learned counsel for the petitioner would submit that as far as the misappropriation is concerned, the defense taken by way of Section 313 of Cr.P.C., statement as well as by cross-examination is that the petitioners/accused did not misappropriate the same. But, however, the amount was received by the daughter of the said deceased person, namely Balakrishnan. Inspite of the said statement, even during the investigation the said daughter of the deceased Balakrishnan was not examined as a witness. Therefore, the prosecution is unsustainable.
11.In this regard, the scheme framed under the Act is that the money should be paid only to the individual concerned. Once the money could not have been paid to the individual, the same amounts to misappropriation. Whether the accused spent it to themselves or on account of their free will and volition, give it to the third person, still, as far as the scheme is concerned, the money stands misappropriated. Therefore, I reject the submissions made on behalf of the petitioners, in this regard.
12.The learned counsel would also submit that there was no proper sanction, which was obtained in this regard. As a matter of fact, after https://www.mhc.tn.gov.in/judis 8/12 Crl.R.C.Nos.36 & 34 of 2019 the trial, unless and otherwise prejudice to the accused is proved, the non- obtainment of sanction is not fatal to the case of the prosecution. This is a open and shut case, where the death person was shown as if he was working and his wages were drawn from the Government Scheme.
13.Absolutely, the Sanctioning Authority would not have pressed any other safeguard as against the first and second accused, therefore, no prejudice whatsoever, is specifically pleaded before this Court for non- obtaining of sanction. Hence, the said contention stands rejected.
14.Similarly, the contention of the learned counsel appearing on behalf of the second accused is that only in resepct of two days, the second accused had signed. The said submissions are of no consequence because, even if the second accused had signed only one day, that is enough to convict the second accused. Therefore, I find that the first and second are guilty of the offense under Section 406 of IPC and the third and fourth accused are guilty of the offense under Section 408 of IPC. https://www.mhc.tn.gov.in/judis 9/12 Crl.R.C.Nos.36 & 34 of 2019
15.Now coming to the question of sentence, the learned counsel would submit that three of the four accused are ladies. The learned counsel submitted that the reservation, which is made for furtherance of the cause of gender equality in this case, is working against them. Considering the said submissions, I am of the view that at this stage, instead of imposing sentence of imprisonment, it would be appropriate that the first accused being the President and the second accused being the Vice President are ordered to pay a fine of Rs.75,000/-, and in default of payment of fine to undergo Simple Imprisonment for a period of one year each. As far as the third accused is concerned, he has undergone Imprisonment for a period of Seven days. Therefore, the third accused is found guilty for the offense under Section 408 of IPC, and his sentence of imprisonment is reduced to the period already undergone and a fine amount of Rs.50,000/- is imposed on the third accused. As far as the fourth accused is concerned, since the Makkal Nala Paniyalar, being a lady, who had also lost her job, she is found guilty for the offence under Section 408 of IPC, and imposed the sentence of fine of Rs.25,000/-, and in default of payment of fine to undergo Simple Imprisonment for a period of three months. All the accused are granted four weeks time to pay the fine amount, from the date of receipt of a copy of this order.
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16. The Criminal Revisions are partly allowed accordingly.
21.07.2022
Index : Yes/No
Speaking / Non-Speaking order
klt
To
1.The Judicial Magistrate No.II, Chidambaram, Cuddalore District.
2.The II-Additional District and Sessions Court, Chidambaram, Cuddalore District.
3.The Public Prosecutor, High Court of Madras.
4.The Inspector of Police, Chidambaram Taluk Police Station, Cuddalore District.
https://www.mhc.tn.gov.in/judis 11/12 Crl.R.C.Nos.36 & 34 of 2019 D.BHARATHA CHAKRAVARTHY. J., klt Pre- Delivery Order in Crl.R.C.Nos.36 & 34 of 2019 21.07.2022 https://www.mhc.tn.gov.in/judis 12/12