Madras High Court
G.Jayamurthy vs The State Rep. By on 6 February, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.02.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal Nos.19 to 22 of 2008
and M.P.No.1 of 2012
G.Jayamurthy .. Appellant/sole accused
(in all Crl. Appeals)
v.
The State rep. by
C.B.I./ACB/Chennai
Crime No.29/A/2001 .. Respondent/Complainant
(in all Crl. Appeals)
Prayer:Criminal Appeals filed under Sections 374(2) CrPC. read with 27 of the P.C. Act against the judgment of conviction and sentence, dated 19.12.2007 made in C.C.Nos.8 to 11 of 2004 on the file of the Principal Special Court for CBI Cases, Chennai.
For Appellant : Mr.R.Shanmugasundaram, senior counsel
for Mr.A.Venkatesan and Mr.A.Stalin
For Respondent : Mr.N.Chandrasekaran
Special Public Prosecutor for C.B.I.cases
C O M M O N J U D G M E N T
The Criminal Appeals arise out of the judgment of conviction and sentence, dated 19.12.2007 made in C.C.Nos.8 to 11 of 2004 on the file of the Principal Special Court for CBI Cases, Chennai, whereby the appellant herein was convicted for an offence under Section 420 IPC and sentenced to undergo Rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default, to undergo Rigorous Imprisonment for three months and convicted for an offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous imprisonment for one year and imposed a fine of Rs.1,000/- in default, to undergo Rigorous Imprisonment for two months and the accused shall run the sentence concurrently.
2.The respondent herein has filed a charge sheet against the appellant, who was working as Senior Assistant and promoted as Assistant Administrative Officer, United India Insurance Company Limited, Chennai Division, committed criminal misconduct and cheated United India Insurance Company Limited/Oriental Insurance Company by dishonestly submitting three medical claims in the name of his mother G.Vadivambal during the year 1991, 1995, 1997 and 1999 to 2001 knowing fully well that his mother was getting a family pension from Southern Railway, Madras and as such she was not a dependent. So she is not an eligible person as a dependant to claim mediclaim. The appellant herein had fraudulently shown his mother as dependent and claimed mediclaim and induced United India Insurance Company/Oriental Insurance Company to pay the following sum of Rs.44,938/-, Rs.88,031/-, Rs.1,60,220/- and Rs.18,616/- towards three claims by abusing and misusing his official position illegally and got corresponding pecuniary advantage to himself.
3.P.W.17-Inspector of Police, filed a charge sheet against the appellant/accused stating that while the appellant/accused was working in United India Insurance Company, the said company has launched Employees Group Medi-Claim Scheme in the year 1990, wherein the scheme implemented medical expenses for its office employees. The Group Insurance Scheme of United India Insurance Company is insured with the Oriental Insurance Company Limited and the premium is properly paid by the company. In respect of employees, 3/4th of the premium amount was paid by the United India Insurance Company and <th of the premium amount paid by the concerned employee for the coverage amount as per the Rules. In respect of Officers, the United India Insurance Company paid 2/3rd of the premium amount and 1/3rd of the premium amount paid by the officers. The mediclaim was restricted to the staff, wife and two children. Subsequently, in view of the amendment, the parents and the other dependants were also allowed to be included in the scheme. For the purpose of ascertaining dependency, the income limit should not be more than Rs.1,500/- per month. If any one of the parents of an employee is a pensioner drawing pension more than Rs.1,500/- per month, he or she cannot be included as a dependent.
4.The case of the prosecution is that the mother of the accused viz., Vadivambal was receiving more than Rs.1,500/- as monthly family pension, so she is not depended upon the accused. But whereas the appellant herein has shown her as a dependent and he paid the premium amount and claimed medical reimbursement for his mother. To prove the same, P.W.3-Chamundeeswari, Section Officer, Southern Railway, Chennai, was examined and through her, Exs.P11 and P12 were marked to show that the family pension of the mother was Rs.773/- per month and as on 31.12.2001, her family pension was Rs.1,849/-. The Appellant admitted his mother in Trinity Acute Care hospital and presented the medical documents Exs.P3 to P10 for reimbursement and that has been marked through P.W.2-Radhakrishnan, Administrative Officer. Vadivambal was also admitted in some other hospitals and the Doctors, who treated her were examined as P.W.8-Dr.C.B.Krishnakumar, P.W.9-Dr.A.Krishnasamy, P.W.12-Dr.J.Jayaprasad and P.W.15-Dr.C.Anbarasu and through them some of the medical documents have been marked. P.W.6-G.Sundararaman, P.W.7-Thathachari, P.W.10-Rengarajan, Deputy manager and P.W.18-Vedachalam, Deputy manager of United India Insurance Company had received application from the appellant for reimbursement of mediclaim and they perused the documents and passed an order. Since P.W.17 has received some reliable information and on that basis only, he made an enquiry and came to know that the appellant/accused fraudulently and dishonestly including his mother as a dependent and enjoyed the premium concession and obtained a wrongful gain by way of mediclaim, which leads to wrongful loss to the United India Insurance Company.
5. P.W.1 has given a sanction order Ex.P2 for prosecuting the appellant/accused on the basis of the authorisation given under Ex.P1. Then, P.W.17-Inspector of Police obtained sanction order Ex.P2 from P.W.1 and after completing his investigation, filed a charge sheet against the accused.
6.The learned Special Judge after following the procedure, framed necessary charges against the accused. The accused pleaded not guilty. The Special Court examined the witnesses P.W.1 to P.W.18 & marked the documentary evidence Exs.P1 to P72 and placed the incriminating evidence before the Accused and considering the oral and documentary evidence, the Special Court convicted and sentenced the accused as stated above and acquitted the accused for an offence under Sections 468, 468 read with 471 IPC, against which, four appeals have been preferred by the appellant herein.
7.Challenging the Judgment of conviction and sentence passed by the Special Court, the learned senior counsel Mr.R.Shanmugasundaram submitted that Ex.P2-sanction order is not valid under law. P.W.1 has not applied his mind while according sanction for prosecuting the accused. Further, he submitted that Exs.P14 and P22 would prove the mother is a dependent and that there is no document to show that the mother was drawing Rs.1,500/- per month during the relevant period. Even though P.W.3-Section Officer of Southern Railway stated that Vadivambal, mother of the appellant has got family pension more than Rs.1,500/-, there is no evidence to prove the same during the relevant period. He further submitted that the appellant herein has not enjoyed premium concession as per Ex.P22-the revised group mediclaim insurance policy, in the mediclaim bills, the entire premium for the mother has been paid by the appellant herein. It is further submitted that there is no complaint lodged before C.B.I. for investigation and the Special Court has not considered this aspect in a proper perspective. Hence he prayed for setting aside the Judgment of conviction and sentence passed by the Special Court. To substantiate the same, he relied upon the following decisions:
(i) (2006) 142 PLR 175 (Sarojini Sawhney v. Punjab University and others)
(ii) Judgment of this Court in Crl.R.C.No.272 of 2006 (P.Govindan v. State, rep. by Inspector of Police, CBCID, Dharmapuri), dated 30.04.2008.
8.Resisting the same, Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI cases would submit that the oral evidence of P.W.3 has clearly proved Vadivambal, mother of the appellant was drawing family pension more than Rs.1,500/- per month and through her, Ex.P12 was marked to prove the same. Therefore, the learned Special Judge considered all the aspects in a proper perspective and came to the correct conclusion and hence, he prayed for dismissal of the appeal.
9.Considered the rival submissions made on both sides and the materials available on record.
10.Now this Court has to consider whether the sanction order Ex.P2 is valid under law? Admittedly, the appellant was working as Senior Assistant in the United India Insurance Company Limited and subsequently, he was promoted as Assistant Administrative Officer. It is also admitted fact that no one preferred a complaint against the accused stating that he has given a false declaration as if his mother is a dependant and enjoyed the premium concession and he forced the company to pay 1/3rd of premium to Oriental Insurance Company and as soon as the mother admitted in the hospital, all the medical expenses have been claimed by way of reimbursement and caused damage and loss to the United India Insurance Company.
11.The admitted facts are the Employees Group Mediclaim Scheme has been launched by United India Insurance Company. It gives benefit for the staff members as well as the Officers working in the Insurance Company. Premium for the employees other than officers of the Insurance Company has been paid in a subsidised rate. 75% of the premium amount in respect of the employees is paid by the Company and 25% of the premium amount is paid by the concerned employee. For officers, the Company has paid 2/3 premium amount and the concerned officer has to pay 1/3 of the premium amount. The coverage amount under the scheme differs as per the basic salary of the individual.
12.At this juncture, it is appropriate to consider Ex.P1-Schedule-B, the amended schedule of authorities. In Ex.P1, for the posts in the cadre of Assistant Managers, A.Os., A.A.Os. and equivalent cadres, the Appointing Authority is Assistant General Manager and Disciplinary Authority is Assistant General Manager and Appellate Authority is General Manager. Assistant General Manager is having right to appoint and remove the Assistant Administrative Officer of the Company. While perusing Ex.P2-sanction order, P.W.1-Mr.M.Siddique, who was working as Assistant General Manager accorded sanction for prosecuting the accused. So as per Ex.P1, the Assistant General Manager is a competent person to appoint and remove the Assistant Administrative Officer. So P.W.1 is a competent person to accord sanction.
13.Now this Court has to consider the arguments advanced by the learned senior counsel for the appellant that sanctioning authority had not applied his mind, while according sanction. To substantiate the same, he culled out the oral evidence of P.W.1. In his cross-examination itself, he has stated that sanction order has been drafted by both himself and the Vigilance Department. It is appropriate on the part of this Court to consider the portion of his oral evidence, which reads as follows:
" .. .. There is a Service Register maintained for every employee of the company. I did not call for his service register and perused it. My Vigilance Department has briefed me regarding any pending disciplinary proceedings against the accused and whether he was punished in any departmental enquiry etc. I did not mention about the briefing by my vigilance department regarding the above in my Ex.P2 sanction order. Myself and the Vigilance Department together have drafted Ex.P2 sanction order. I have not got any communication from CBI regarding sanction out my Vigilance Department. It is true that there were no disciplinary proceedings were pending against the accused or any punishment given to him to my knowledge prior to Ex.P2. I deny the suggestion that I have not seen any document other than the documents sent by C.B.I. I have not mentioned any other documents seen by me except those sent by CBI in Ex.P2. .. .."
14.At this juncture, it is appropriate to consider the decision of this Court made in Crl.R.C.No.272 of 2006 (P.Govindan v. State, rep. by Inspector of Police, CBCID, Dharmapuri), dated 30.04.2008, in para-17 and 20, it reads as follows:
"17. According sanction for prosecution should not be understood to mean a mere ritual or formality. The principle underlying the requirement of sanction for prosecution under Section 197(1) is that public officials should not be unnecessarily harassed by launching prosecution for their acts committed while acting or purporting to act in discharge of their official functions without the sanction of the competent authority. The said right of the public servants that they should not be prosecuted for any such offence committed by them while acting or purporting to act in discharge of their official functions without obtaining sanction for prosecution under Section 197(1) Cr.P.C., is a valuable right which cannot be whistled down by a stereo-type order devoid of necessary particulars. The order shall indicate the application of mind by the sanctioning authority. It should also contain the particulars of the materials considered by the sanctioning authority. It is quite clear that the copy of the order produced along with the counter statement is devoid of all such particulars. When the sanction order, at the outset, is bereft of all such particulars and it is patent that there is non-application of mind, it shall not be justifiable to direct the accused (petitioner herein) to face trial despite the apparent vitiating factors found in the sanction order. Therefore as rightly pointed out by the learned counsel for the petitioner, the petitioner shall be entitled to an order of discharge as prayed for by him.
20. Another single judge of this court (A.Ramamurthi, J.) in S.Chandran V. State rep. by Inspector of Police, Sivakasi Town Police Station reported in 2001-1-L.W.(Crl.) 230 has expressed the very same view. The said principle will apply with even a greater force in respect of the question of sanction for prosecution to be accorded under Section 197(1) of Cr.P.C. The allegation made by the complainant and the materials collected by the investigating agency during investigation should be independently considered by the sanctioning authority to take a decision as to whether sanction for prosecution on the basis of the available materials could be granted. When the complainant himself happens to be sanctioning authority, there cannot be any such independent, unbiased and impartial consideration. Therefore, it is quite obvious that the order of sanction accorded by Thiru Mohan Piyare, I.A.S., the then collector of Dharmapuri District, who incidentally happened to be complainant based on whose complaint the criminal case was registered, is vitiated and shall be ineffective in the eye of law. For the said reason alone, the petitioner shall be entitled to an order of discharge as prayed for. "
The above citation is not applicable, because the complainant himself is a sanctioning authority. But in the case on hand, the sanctioning authority is not a complainant and no complaint was lodged against the appellant. In such circumstances, the above citation is not applicable to the facts of the present case.
15.As per the evidence of P.W.1, he candidly admitted that himself and Vigilance officer have jointly drafted the sanction order. It shows that while according the sanction, there was no independent application of mind by sanctioning authority. In such circumstances, I am of the view that since the Vigilance Officer and the sanctioning authority have joined together and drafted the sanction order Ex.P2, it is vitiated and non-est in the eye of law.
16.It is pertinent to note that the evidence of P.W.8-Dr.C.B.Krishnakumar, P.W.9-Dr.A.Krishnasamy, P.W.12-Dr.J.Jayaprasad, P.W.13-S.Viswanathan and P.W.15-Dr.C.Anbarasu has clearly proved that the mother of the appellant was suffering some ailments and admitted in the hospital and got treatment and the hospital issued medical bills. That medical bills have been submitted for reimbursement and the same has been considered by P.W.6-G.Sundararaman, who was working as Divisional Manager, United India Insurance Company, P.W.7-Thathachari & P.W.10-Rengarajan, who were working as Deputy Manager, United India Insurance Company. P.W.13-S.Viswanathan, who was working as Administrative Officer, after processing the papers under Exs.P30 and P33-claim files, passed reimbursement bill. That factum has not been disputed.
17.Now this Court has to consider whether the appellant herein has wantonly suppressed the fact that his mother has drawn pension more than Rs.1,500/- per month and she is not a dependent? As per the circular issued by the United India Insurance Company, the appellant paid only 1/3rd of the insurance premium amount for his mother and he forced United India Insurance Company to pay 2/3rd insurance premium amount. At this juncture, this Court has to consider whether the mother is a dependent or not?. The appellant's father Ganesan was a railway employee, who died on 10.5.1991. Till his death, he received pension. After his death, his wife Vadivambal, who is the mother of the appellant, received family pension. P.W.3-Chamundeeswari, Section Officer, Southern Railway, Chennai, was examined and through her, Exs.P11 and P12 were marked. From 01.06.1991 to 30.06.1991, pension of Vadivambal was Rs.773/-. For every six months, the D.A. is increased and proportionally, the total pension amount is also increased. In her chief-examination itself, she stated that as on 31.12.2001, Vadivambal was drawing pension and D.A. amounting to Rs.1,849/-. In the year 1991, her pension was Rs.773/- per month. At this juncture, it is appropriate to consider Ex.P15-Circular, dated 29.05.1990, in which, it was specifically stated as follows:
"As you are aware, under the existing provision for coverage under Group Mediclaim Scheme, 'Family Members' mean, spouse, not more than 2 legitimate children (and additional children and parents to be covered on payment of full premium by the employee). At present any of these 'Family Members' is considered dependent on the employee provided such family member is not having an income more than Rs.100/- per month.
Now it has been decided to raise this limit to Rs.500/- per month. Accordingly, the family members of the employee who are not having income more than Rs.500/- per month shall be considered as dependent family members and covered under the Group Mediclaim Scheme."
From 29.05.1990 onwards, the income limit of the dependent has been raised to Rs.500/- per month. Subsequently, as per Ex.P17-Circular, dated 20.01.1998, the income limit has been increased from Rs.500/- per month to Rs.1,500/- per month.
18.In Ex.P14, it was specifically mentioned in 'B' Terms of coverage, in clauses-iv and v, which reads as follows:
"iv. The employee's spouse/children becoming eligible for coverage after the employee's entry into the Mediclaim Scheme, may be granted cover from the first day of the month following the submission of enrolment from in respect of them. Such enrolment forms shall be submitted by the employee within 6 months from the date of their becoming eligible and in any case before the next renewal date, children shall be eligible only on completion of 3 months from the date of birth.
Note:Since the premium being linked to age as per the revised policy, the increased risk factor has been taken care of. Hence, as and when any new dependant family members of the insured is to be included, the same may be done, subject to exclusion of pre-existing diseases.
v. Coverage of dependant parents and additional dependant children shall be subject to the condition that the Company shall not bear any portion of the premium for such dependant as in the case of eligible members of the family. "
In the definition of 'Family' and 'Dependants', clause(g) reads as follows:
"(g) For the purpose of ascertaining dependancy, it is clarified that the income limit should not be more than Rs.1,500 per month. If any one of the parent of an employee is a pensioner drawing pension more than Rs.1500/- p.m. he/she cannot be enrolled as a dependant. If the father of the employee is not a dependant in view of his income being Rs.1500/- or more per month, Mother of the employee cannot be considered as dependant and hence not covered."
As per clause-(g), since the mother has received family pension below Rs.1,500/- per month, she is eligible for group medi-claim. So the prosecution has miserably failed to prove that the mother of the appellant is not a dependent as per Ex.P14.
19.It is also pertinent to note the document under Ex.P22-a list of persons proposed for insurance, dated 25.03.1997, wherein the appellant herein has mentioned his family members to be covered with an insurance viz., himself, Vadivambal (mother), Kalaivani (wife), his two sons namely, Gowtham Ganesh and Gowshik Ganesh. In Ex.P22, it was stated as follows:
Age limit No. of persons Employees contribution Company's contribution Total Upto 45 years 4 3204 804 4008 56 to 65 years 1 1645
-1645
Total 4849 804 5653 In such circumstances, the prosecution has miserably failed to prove that the appellant herein has abused his position and cheated the United India Insurance Company and Oriental Insurance Company dishonestly and fraudulently and induced the United India Insurance Company to pay the portion of the premium to his mother.
20.Admittedly, no complaint has been given by United India Insurance Company. As already discussed above that as per Ex.P14, mother is a dependent. The evidence of P.W.3-Chamundeeswari, Section Officer, has proved during the relevant period, the monthly family pension of the mother was Rs.773/- and it was below Rs.1,500/-. As per Ex.P22, the entire premium for the mother has been paid by the appellant herein. The evidence of Officers of the United India Insurance Company and the Doctors has proved that Vadivambal has suffered ailments and admitted in the hospital and thereafter, medical reimbursement has been claimed and after perusal of the document, the concerned authority from the United India Insurance Company has ordered for medical reimbursement. So the appellant/accused has no dishonest or fraudulent intention to cheat the Company. Hence the ingredients of Section 420 IPC has not been made out beyond reasonable doubt.
21.Since sanction accorded by P.W.1 is not in accordance with law as per the finding made in para-14 of this Judgement, the prosecution itself fails. Moreover, the prosecution has failed to prove the guilt of the accused for an offence under Section 420 IPC and since the ingredients of Section 420 IPC has not been made out, the ingredients of Section 13(1)(d) of Prevention of Corruption Act, which deals with a public servant abused his financial power and obtained gain for himself or for any other person, does not arise. Hence, the ingredients of Section 13(1)(d) has also not been proved. But the learned Special Judge has failed to consider this aspect, convicted the accused for the offences under Sections 420 IPC and 13(2) r/w 13(1)(d) of P.C.Act. So the Special Court is erred in convicting the accused for the offences under Sections 420 IPC and 13(2) r/w 13(1)(d) of P.C.Act. Therefore, I am of the view, the conviction and sentence passed by the Special Court is liable to be set aside and hence, they are hereby set aside and the appellant is acquitted from the charges levelled against him.
22.In fine, The Criminal Appeals are allowed.
Consequently, connected Miscellaneous Petitions are closed.
The Judgment of conviction and sentence, dated 19.12.2007, made in C.C.Nos.8 to 11 of 2004 on the file of the Principal Special Court for CBI Cases, Chennai, is hereby set aside.
The bail bond executed by the appellant, if any, shall stand cancelled.
The fine amount paid by the appellant shall be refunded to him.
06.02.2012 Index:Yes Internet:Yes kj R.MALA,J.
kj To
1.Principal Special Court for CBI Cases Chennai.
2.The State rep. by C.B.I./ACB/Chennai
3.The Special Public Prosecutor (for C.B.I. Cases) High Court, Madras.
4.The Record Keeper Criminal Section High Court, Madras.
Pre-delivery Judgment made in Crl.A.Nos.19 to 22 of 2008 06.02.2012