Madras High Court
K.Sundari vs The State Represented By on 25 April, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/04/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.1187 of 2007 Crl.O.P.(MD).No.1188 of 2007 K.Sundari ... Petitioner in both the petitions Vs The State represented by The Deputy Superintendent of Police, Economic Offences Wing, Tirunelveli. ... Respondent in both the petitions Prayer Petitions filed under Section 482 of the Code of Criminal Procedure, to call for the records and quash the charge sheet filed by the respondent against the petitioner on the file of the learned Judicial Magistrate No.2, Tirunelveli, in C.C.Nos.4 and 5 of 2006 in Cr.No.8 of 2003. !For Petitioner : Mrs.J.Nisha Banu For Respondent : Mr.P.Rajendran Government Advocate (Crl. Side) :ORDER
These Criminal Original Petitions are for getting quashed the police reports/charge sheets filed by the respondent police based on Cr.No.8 of 2003 and which were taken on file by the learned Magistrate as C.C.Nos.4 of 2006 and 5 of 2006 for the offences punishable under Sections 408, 477(A) I.P.C, 408 read with 109 and 477(A) I.P.C as against the petitioner herein.
2. The facts giving rise to the filing of these petitions as stood exposited from the records and from the arguments of the learned Counsel for the petitioner could be portrayed thus:
(i) The petitioner has been arrayed as A.14 in C.C.No.4 of 2006 and as A.13 in C.C.No.5 of 2006, who happened to be the Sub Registrar and was posted as Extension Officer to inspect various Co-operative Societies and Banks.
According to her, the police registered a case as against her for those offences without any basis.
(ii) The charge sheets bearing Nos.4 and 5 of 2006 were filed by the police and in those charge sheets/police reports, the petitioner/accused is arrayed as A.14 and A.13 respectively and the charges as against her in C.C.No.4 of 2006, is extracted hereunder for ready reference:
"14 tJ vjphp brd;w 2.8.99 Kjy; 18.12.02 tiu ghisaq;nfhl;il Tl;Lwt[ tphpthf;f mYtyuhf gzpg[hpe;Js;shh;. rk;gt rq;fk; ,tUila eph;thf fl;Lg;ghl;oy; ,Ue;Js;sJ. Jizg;gjpathsh; mth;fspd; cj;jut[g;go rq;fj;jpid tUlhe;jpu Ma;t[ bra;J> rq;fj;jpd; KiwnfLfis jdpawpf;if K:yk; bjhpag;gLj;jp eltof;ifbaLf;f Kaw;rp nkw;bfhs;s ntz;oaJ ,tuJ gzpahFk;. ....."
"14 tJ vjphp rk;gt rq;fj;jpy; 1.4.98 Kjy; 31.3.99 tiuapyhd tUlhe;jpu jzpf;ifapid 29.12.2000 j;jpy; Koj;Js;shh;. Ma;tpd; nghJ bryhf;fisa[k;> Mtzq;fisa[k; ghh;itapl;L Ma;t[ bra;jth; bryhf;fspy; jpUj;jk; bra;J ifahly; bra;j brayhpd; KiwnfLfs; Fwpj;J mwpf;if mspf;fhky; brayh; bra;j ifahlYf;F cWJizahft[k;> J}z;Ljyhft[k; ,Ue;Js;shh;. ..... "
"2 Kjy; 14 tiua[s;s vjphpfs; rl;lg;gphpt[ 408> cldpize;j 109 kw;Wk; 477(v) ,jr tpd; goa[k; jz;of;fg;glntz;oa Fw;wk; bra;jth;fs; Mthh;fs;."
(iii) Relating to C.C.No.5 of 2006, the police laid the charge sheet by citing the petitioner as A.13 and the charges as against her would run thus:
"13 tJ vjphp brd;w 2.8.99 Kjy; 18.12.02 tiu ghisaq;nfhl;il Tl;Lwt[ tphpthf;f mYtyuhf gzpg[hpe;Js;shh;. rk;gt rq;fk; ,tUila eph;thf fl;Lg;ghl;oy; ,Ue;Js;sJ. Jizg;gjpathsh; mth;fspd; cj;jut[g;go rq;fj;jpid tUlhe;jpu Ma;t[ bra;J> rq;fj;jpd; KiwnfLfis jdpawpf;if K:yk; bjhpag;gLj;jp eltof;ifbaLf;f Kaw;rp nkw;bfhs;s ntz;oaJ ,tuJ gzpahFk;. ....."
"13 tJ vjphp rk;gt rq;fj;jpy; 1.4.99 Kjy; 31.3.2000 tiuapyhd tUlhe;jpu jzpf;ifapid 7.8.01> 9.8.01> 10.8.01 Mfpa njjpfspy; Koj;Js;shh;. Ma;tpd; nghJ bryhf;fisa[k;> Mtzq;fisa[k; ghh;itapl;L Ma;t[ bra;jth; bryhf;fspy; jpUj;jk; bra;J ifahly; bra;j brayhpd; KiwnfLfs; Fwpj;J mwpf;if mspf;fhky; brayh; bra;j ifahlYf;F cWJizahft[k;> J}z;Ljyhft[k; ,Ue;Js;shh;. ..... "
3. Being aggrieved by and dissatisfied with, the method and manner in which the police without any basis laid the police report as against the petitioner herein, both the Criminal Original Petitions have been filed on the main grounds as under:
(i) The investigating officer failed to consider that only the Secretary of the said Co-opeative Societies concerned, with others caused loss to the tune of Rs.11,21,600/- (Rupees eleven lakhs twenty one thousand and six hundred only).
(ii) There is no evidence to show that the petitioner herein acted with any criminal intention to aid or abet the perpetration of the crime by A.1 and others in swindling the money.
(iii) The petitioner was awarded the minor punishment of censure by virtue of the order dated 05.12.2003 passed by the Deputy Registrar concerned and after three years, all of a sudden, she was arrayed as accused in the criminal case.
(iv) The petitioner was also suspended just a month before her retirement by order dated 21.03.2006 and subsequently, she filed two writ petitions and thereafter, she was permitted to retire with retirement benefits.
(v) Accordingly, she prays for quashment of the proceedings as against her.
4. The point for determination is as to whether there is no basis for the criminal cases as against her, to be proceeded with under Sections 408, 477(A) I.P.C, 408 read with 109 and 477(A) I.P.C?
The Point:
5. The nitty-gritty, the gist and kernel, the pith and marrow, the warp and woof of the case of the prosecutiion as against the petitioner herein is that because of her failure to unearth those malpractices, she is also liable for those offences referred to supra.
6. At this juncture, I would like to highlight the pertinent legal maxims "nulla crimen sine lege" (Nothing is a crime without a law prescribing it) and "nulla poena sine lege" (No punishment without a law authorizing it.). There is nothing on record to show that mere failure to inspect or negligence in inspecting the said Societies would tantamount to criminal act. It is quite obvious that those penal sections found as against her are relating to serious offences contemplating mens rea. The charge sheets as well as the evidence gathered by the investigating agency, in no way evidence that she had mens rea in sharing the common purpose in swindling the amount or in any way she colluded with them or conspired with them or indulged in cahoot with them to perpetrate such crimes. What are all the investigating officer would highlight is that the petitioner failed in her duty.
7. The core question arises whether mere failure itself is described as a penal offence. The answer is at once clear that nowhere it is found stated so. While visualising such a legal position, I would like to refer to Section 221 I.P.C (Intentional omission to apprehend on the part of public servant bound to apprehend.) and Section 222 I.P.C (Intentional omission to apprehend on the part of public servant, bound to apprehend person under sentence or lawfully committed.) and Section 225-A I.P.C (Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise provided for.) by way of exemplification of the point that if law contemplates as contemplated in those three sections that mere omission itself would tantamount to a particular offence, then in that case, the prosecution could proceed with this case. But, the negligence of the petitioner who was the Sub Registrar of the Co-operative Society and posted as Extension Officer, was not contemplated in any law, would tantamount to those penal offences under Sections 408, 477(A) I.P.C, 408 read with 109 and 477(A) I.P.C. Even if somebody commits such an offence within the jurisdiction of of petitioner, it is not known how for supervisory lapse, she could be held liable for the offences committed by others. Unless law envisages vicarious liability in specific type of cases nothing could be presumed.
8. The respondent filed the counter statement detailing the circumstances under which the charge sheets were filed as against the petitioner. The perusal of it would show that the investigating officer misdirected himself by assuming and presuming without guided by the propositions of law cited supra. The relevant part of the counter is extracted hereunder for ready reference:
"It is submitted that the grounds mentioned by the petitioner/accused in her petition are not true. The action taken by her department under Section 17(A) of the Tamil Nadu Civil Services Rules is entirely different from the criminal action taken by the respondent against the petitioner/accused. The punishment awarded in the departmental proceedings is only for her negligent act and omission in her duty. This petitioner/accused had played an important role in the commission of offence of misappropriation and falsification of accounts. During her inspection, she had accepted the falsified accounts and also the false entries made by the Secretary in the challans. If this petitioner/accused had checked and verified the accounts carefully, the Secretary could not have misappropriated such a huge amount. Thus she is the instigator of the crime committed by the Secretary of the said society."
9. In the above extract, even though the respondent stated that she played an important role in the commission of the offence, during arguments, nothing has been drawn to the attention of this Court as to how she played an important role in aiding or abetting the commission of the offence by A.1 and others.
10. The learned Counsel for the petitioner would correctly argue that in C.C.No.4 of 2006, the period during which the misappropriation took place is between 01.08.2000 and 28.07.2001 and the petitioner inspected the accounts only during the period between 01.04.1998 and 31.03.1999 and not during the aforesaid period at all. This pertinent point has not been met by the respondent in the counter and even during arguments.
11. By no stretch of imagination, a person who inspected the accounts for the period between 01.04.1998 and 31.03.1999 could be made liable for defalcation committed during the period between 01.08.2000 and 28.07.2001 and as such on that ground itself, the charges were liable to quashed. Relating to the averments in the charge sheet in C.C.No.4 of 2006 in Cr.No.8 of 2005 that the petitioner was in-charge of supervising the Co-operative societies as an Extension Officer on deputation on Palayamkottai, during the period between 02.08.1999 and 18.12.2002, the learned Counsel for the petitioner would argue that there was no standing order that she should have supervised such societies; the order for supervision itself was served on her only on 26.07.2002 and that thereupon, she could not supervise all the societies, but only a few and for which also she was awarded the punishment of censure. According to the learned Counsel for the petitioner absolutely, there was no mandate that she was permanently responsible for inspection during such period, even without any order of inspection. No part of the evidence has been drawn to my attention so as to torpedo such stand of the petitioner.
12. C.C.No.5 of 2006 is relating to swindling of the amount for the period between 02.08.1999 and 18.12.2002. The learned Counsel for the petitioner would correctly aruge that the order to inspect was served only on 26.07.2002 and that she could not inspect before her retirement which was fast approaching at that time. Because of the fact, that she could not do the inspection in all the societies, she was also punished with minor punishment of censure. There is nothing on record to show that the co-operative officials accused her of any offence. But, the police simply arrayed her also as one among the accused. In view of the fact that there is no evidence collected to show that she conspired with the other accused persons in perpetration of the crime, her mere failure to inspect the societies during the relevant period would never constitute an offence. Accordingly, the proceedings in C.C.No.5 of 2006 are liable to be quashed.
13. In the result, both the Criminal Original Petition are allowed and the charge sheets and the proceedings in C.C.Nos.4 and 5 of 2006 are quashed.
rsb To
1.The Deputy Superintendent of Police, Economic Offences Wing, Tirunelveli.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.