Madras High Court
S.Valli vs State on 23 July, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/07/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition (MD) No.7411 of 2010 and Criminal Original Petition (MD) No.7420 of 2010 and M.P.(MD) Nos.1,1 and 2,2 of 2010 S.Valli .. Petitioner in Crl.O.P.No.7411/2010 S.Valli .. Petitioner in Crl.O.P.No.7420/2010 vs State, represented by The Inspector of Police, C.C.I.W., Tirunelveli Crime No.5 of 2006 .. Respondent in both petitions. Prayer Criminal Original Petitions filed under Section 482 of Cr.P.C. to call for the records relating to the impugned charge sheet laid in C.c.Nos.4 and 5 of 2009 on the file of the Judicial Magistrate No.II, Tirunelveli and quash the same in so far as the petitioner herein is concerned. !For petitioner ... Mr.J.Nisha Banu ^For Respondent ... Mr.R.M.Anbunithi G.A.(Crl.Side) :ORDER
The petitioner approaches this Court with a prayer to call for the records relating to the impugned charge sheet laid in C.c.Nos.4 and 5 of 2009 on the file of the Judicial Magistrate No.II, Tirunelveli and quash the same in so far as the petitioner herein is concerned.
2. The petitioner was arrayed as A5 in C.C.No.4 of 2009 and arrayed as A4 in C.C.No.5 of 2009 on the file of the learned Judicial Magistrate, Triunelveli, in the cases registered against her on the basis of the complaints given by the Registrar of Societies on the basis of Section 81 enquiry of the Co-operative Societies Act The case of the prosecution is that the petitioners was holding as the additional charge of Special Officer in the Naduvakurichi Primary Agricultural Co-operative Bank and at that time, while disbursing the agricultural loan, the accused Nos.1,2 and 7 were misappropriated the loan amount due to the employees by creating forgery documents and making false accounts upto the year 31.08.2004 and hence, the case has been registered against the petitioner and others in crime No.5 of 2006, for the offence under Sections 408, 465, 468, 471 and 477(A) of I.P.C., and as per the resolution dated 22.05.2001, the Secretary and the Special Officer together has got to maintain the income and expenditure account and thus the petitioner has abetted the offence, against which the petitioner is filing the present petition to quash the charge sheet filed against him.
3. The learned counsel appearing for the petitioner would contend that the petitioner is a Sub Registrar of Co-operative Society (Public Distribution System) and she was having control over 62 PDS shops, out of which she had to do monthly inspection of 25 shops and to file a report and she was holding additional charge from the bank for the period from 06.02.2003 to 24.11.2004 and during that period, it was stated that the agricultural loan has been disbursed and as per the audit report, Sec. 81 enquiry was ordered and based on the said enquiry only, the petitioner was subjected to disciplinary proceedings and 17A charge has also been framed and finally the Deputy Registrar has passed a final order on 28.10.2006 postponing the increment of the petitioner for a period of 3 months without cumulative effect for negligence in duty.
4. The learned counsel appearing for the petitioner would further submit that the Director of Prosecution has also recommended that no criminal action is needed against this petitioner and the Secretary alone is responsible for the fabrication of the documents. She relied upon the order dated 28.04.2010 in Crl.O.P.Nos.981 and 982 of 2010, where the charge sheets have been quashed against A4-Manoharan Jebaraj Julian and he relied upon the decision reported in (2003) 4 Supreme Court Cases 139 (Deputy Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and Others) and thus she prayed for the quashing of the charge sheets filed against this petitioner in C.C.Nos.4 and 5 of 2009.
5. The learned Government Advocate (criminal side) would submit that because of the negligence of the petitioner, the disciplinary proceedings has been initiated and 17-A charge has also been framed and found guilty of negligence in duty and postponing the increment of the petitioner for a period of 3 months without cumulative effect. However, he fairly conceded that the Director of Prosecution has given an opinion that no criminal action is necessary against the petitioner and thus he prayed for the dismissal of the petitions.
6. Admittedly, the petitioner was a Sub Registrar of Co-operative Societies and she was given additional charge of Special Officer during the period from 06.02.2003 to 24.11.2004. At that time, for issuance of causing credit loans to the agriculturists, there was a fabrication of documents and as per the fabricated documents, the loan amount has been disbursed. As per the rules and guidelines issued by the Deputy Director of Co-operative Societies, the Secretary and Special Officers are responsible for the income and expenditure accounts of the Society. On 23.06.2009, an inspection has been conducted and at that time, some irregularities were found out in respect of granting agricultural loan and hence, Section 81 enquiry has been ordered and the report was sent to the Director of Prosecution for opinion, who has given the opinion, wherein, it is stated that it seems that the petitioner's prime duty is to manage affairs of 60- PDS and in addition to that she held additional charge as Section Officer of 0.333 Naduvakurichi Primary Agricultural Co- operative Bank. As far as D5 is concerned, she had no malafide intention and acted in good faith and hence as per Section 176 of T.N. Co-operative Societies Act 1983, she is exonarable and hence no prosecution is warranted against D5 and in conclusion, he has stated that regarding D2, D4, D5, D6 and D8 as detailedy stated above as there is no intention on their part or fixed responsibility of clinching materials to link them no prosecution be launched against them and if any rules or orders are found violated they may be departmentally dealt with and in pursuance of the said opinion, the disciplinary proceedings has been initiated against the petitioner and in that proceedings, she was given punishment for negligence in duty and postponing the increment of the petitioner for a period of 3 months without cumulative effect and petitioner also preferred an appeal, which was also dismissed and confirming the order passed by the disciplinary authority and then only, the criminal complaint has been given against all the persons including this petitioner.
7. Admittedly, the charge sheets in C.C.Nos.3 and 4 of 2009 have been already quashed against Manoharan Jebaraj Julian, who is arrayed as A4 by this Court on 28.04.2010 in Crl.O.P.Nos.981 and 982 of 2010 and this petitioner is also standing on the same footing. While perusing the order passed by this court, the said Manoharan Jebaraj Julian was totally exonarated from the charges levelled against him and the charges has been dropped, as per the opinion of the Director of Prosecution, Tirunelveli, since they were placed as additional charge of the Special Officer for the said period and no prosecution to be launched against them.
8. It is pertinent to consider the decision relied on by the learned counsel appearing for the petitioner reported in (2003) 4 Supreme Court Cases 139 (Deputy Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and Others), wherein the Apex Court has been held as follows:
"As the Imports and Exports(Control) Act, 1947 has since been repealed and in the departmental proceedings taken under the aforesaid Act the Central Government has passed orders in favour of the respondents, no useful purpose would be served by the trial of the accused-respondents in the criminal court at this stage. The criminal proceedings instituted against the accused-respondents on the basis of the complaints filed by the Deputy Chief Controller of Imports and Exports, are, therefore, quashed.
In view of the findings recorded by us, the learned Magistrate has to proceed with the trial of the accused-respondents. Shri Ashok Desai, learned Senior Counsel has, however, submitted that the Imports and Exports (Control) Act, 1947 has since been repealed and in the departmental proceedings taken under the aforesaid Act, the Central Government has passed orders in favour of the respondents and, therefore, their trial before the criminal court at this stage would be an exercise in futility. He has placed before us copies of the orders passed by the Additional Director General of Foreign Trade on 16-8-1993 and also by the Appellate Committee Cell, Ministry of Commerce, Government of India on 13-3-1997 by which the appeals preferred by the respondents were allowed by the Appellate Committee and the accused-respondents were exonerated. Having regard to the material existing against the respondents and the reasons and findings given in the aforesaid orders, we are of the opinion that no useful purpose would be served by the trial of the accused-respondents in the criminal court at this stage."
9. Considering the same, even though the petitioner was found guilty and imposed punishment of postponing of three months increments without cumulative effect, she has given additional charge of the Naduvakurichi Agricultural Co- operative Bank for the period from 06.02.2003 to 24.11.2004 and she succeeding the said Manoharan Jebaraj Julian. The duty of the petitioner is just to verify the causing credit card which has given once in three years and therefore, the petitioner cannot be faulted with for the falsification of records and hence, he cannot be roped into the case.
10. The impact and effect of the departmental proceedings on a criminal case has been considered by the Honourable Apex Court in P.S.Rajya v. State of Bihar [1996 Supreme Court Cases (Cri) 897], wherein it is observed as follows:
"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. ....
20. At the risk of repetition, we may state that the charge had not been proved and on that basis the appellant was cleared of departmental enquiry. In this connection, we may also usefully cite a decision of this Court in State of Haryana v. Bhajan Lal [1992 Supp(1) SCC 335]. This Court after considering almost all earlier decisions has given guidelines relating to the exercise of the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code of Criminal Procedure for quashing an FIR or a complaint. This Court observed as follows:
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
While considering the mere negligence on the part of the petitioner, even he was given punishment postponing the increment of three months without cumulative effect is cannot be a ground to substantiate the charges levelled against the petitioner for the alleged offence punishable under Sections 408, 465, 468, 471, 477(A) of I.P.C.
11. Therefore, on consideration of the above said facts, I am of the opinion that no useful purpose would be served by allowing the trial to be proceeded in C.C.Nos.4 and 5 of 2009 on the file of the learned Judicial Magistrate No.II, Tirunelveli against the petitioner.
12. In the result, Crl.O.P(MD)Nos.7411 and 7420 are allowed and the proceedings in C.C.No.4 and 5 of 2009 on the file of the learned Judicial Magistrate No.II, Tirunelveli, are hereby quashed insofar as the petitioner herein is concerned. Consequently, the connected Miscellaneous Petitions are closed. It is made clear that the order passed by R.MALA,J.
Arul this Court is only restricted to the petitioner alone considering the fact that the charges levelled against the other accused and the facts involved are totally different. Hence, the trial Court is directed to proceed with the other accused without being influenced by the order passed by this Court in accordance with law.
arul To
1.The Inspector of Police, C.C.I.W., Tirunelveli.
2.The Judicial Magistrate No.II, Tirunelveli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.