Madras High Court
A.P.Subramani vs The State on 22 July, 2021
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
Crl.O.P.No.26941 of 2016 &
Crl.M.P.No.13553 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :22.07.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
Crl.O.P.No.26941 of 2016 and
Crl.M.P.No.13553 of 2016
A.P.Subramani ... Petitioner
Vs.
The State
represented by its Inspector of Police,
CCIW, Dharmapuri ... Respondent
Criminal Original Petition is filed under Section 482 Cr.P.C., to call
for the records of the proceedings in C.C.No.163 of 2010 on the file of the
Judicial Magistrate No.I, Dharmapuri and to quash the same as illegal,
incompetent and without jurisdiction.
For Petitioner : Mr.V.Raghavachari
For Respondent : Mr.E.Rajthilak
Government Advocate (Crl.Side)
1/16
https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.26941 of 2016 &
Crl.M.P.No.13553 of 2016
ORDER
The present Criminal Original Petition is filed under Section 482 Cr.P.C., to call for the records of the proceedings in C.C.No.163 of 2010 on the file of the Judicial Magistrate No.I, Dharmapuri and to quash the same as illegal, incompetent and without jurisdiction.
2. The allegation levelled against the petitioner / A.4, as per the complaint lodged by Lourdanathan, Deputy Registrar of Co-operative Societies, Vellore is that the petitioner, who was the Manager of the Co-operative Society along with other persons [A.1 to A.3, Secretary, Special Officer / CSR and CSR, Housing Society respectively] colluded with each other and with an intention to cheat the society funds had sanctioned loans to the persons [A.5 to A.10], who are ineligible members, not having proper records and without constructing buildings, etc., thereby misappropriated the Society's funds to the tune of Rs.9,93,250/-. Based on the complaint, a case in CCIW, CID, Dharmapuri in Crime No.1 of 2010 was registered under Sections 406, 408, 409, 419, 420, 465, 471, 477(A) r/w 120(B) IPC on 04.08.2010 and the same is taken on file in C.C.No.163 2/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 of 2010 by the learned Judicial Magistrate, Dharmapuri and the same is pending. Seeking to quash the same the petitioner is before this Court.
3. The learned counsel for the petitioner would submit that it is not the case of the Dharmapuri Housing Society that the alleged losses caused to it were pending on the date of filing of the charge sheet. As a matter of fact, the letter dated 29.04.2015, issued by the Society would show that the amounts, if any, had been repaid with interest by the borrowers, the last of which were paid on 04.07.2010. Thus, when the charge sheet was filed on 23.11.2010, there was nothing to show that any loss had been caused to the society.
4. The learned counsel for the petitioner contends that there is no truth in the complaint and the reading of the complaint as a whole fails to show any criminal intent. The negligent act may constitute dereliction of duty, but cannot constitute a criminal offence without the requisite mensrea. Further, it could be seen that even before the criminal complaint was lodged, the money due to the society was returned. The loan was sanctioned in the year June 2003 and the entire amounts were repaid, no amount is due from the borrower to the society.
3/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016
5. The learned counsel for the petitioner represented that no case has been made out by the complainant to constitute offence under Sections 406, 408, 409, 465, 468, 471 r/w 109 of IPC, in the present case, the complaint was lodged on 04.08.2010 for alleged offence occurred between 07.03.2003 and 08.04.2004, there is absolutely no explanation, as to the cause of delay.
6. Further, the learned counsel for the petitioner contended that the defacto complainant cannot hold special officer responsible for the day today activities and the special officers are assisted by the secretary and the loans are sanctioned after taking into consideration the ground records secured by the subordinates and pleaded to quash the proceedings in C.C.No.163 of 2010 on the file of learned Judicial Magistrate No.I, Dharmapuri.
7. The learned counsel for the petitioner in support of his contention has relied on the Judgment of the Hon'ble Supreme Court reported in (1991) 2 Supreme Court Cases 623 [Narendra Pratap Narain Singh and Another Vs. State of U.P.] wherein it is held that "In the absence of any evidence regarding any conspiracy, pre-concert or concert of minds of the 4/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 two accused - appellants or any pre-arranged plan between them to commit the offence, they cannot be jointly fastened with the offence under Section 409. In case of reinstatement in service of the appellants pursuant to their acquittal, they, although ordinarily entitled to back wages, will not be having any claim for the back wages from the date of suspension up to the date of reinstatement in view of their undertaking to that effect before the court."
8. Per contra, the learned Government Advocate [Crl.Side] vehemently opposed the submission of the learned counsel for the petitioner by filing a detailed counter, wherein he contended that the Inspector of Police have examined the complainant and recorded the statement and collected all the relevant documents from the complainant for the investigation purposes. On 04.08.2010, the respondent had arrested the other accused persons, viz., A.1, A.5, A.9 and A.10 and remanded to judicial custody. Further, the accused persons, viz., A.2, A.3, A.4, A.6 to A.8 were obtained anticipatory bail from the court below. Moreover, this petitioner / A.4 has filed the present petition only to drag on all the further proceedings and escape from the clutches of law. 5/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016
9. It is represented on behalf of the respondent that the police conducted the investigation in a fair, free and impartial manner in accordance with law. All the mandatory provisions have been complied by the police during the course of investigation and registered a case. After completion of the investigation, the police had filed a charge sheet. Now, the case is pending trial and therefore, pleaded to dismiss the petition.
10. The learned Government Advocate [Crl.Side] appearing for the respondent has relied on the following Judgments:
(i) The Judgment of the Hon'ble Supreme Court reported in (2014) 15 Supreme Court Cases 29 [State of Maharashtra through Central Bureau of Investigation Vs. Vikram Anantrai Doshi and Others] wherein at Paragraph No.26, it is observed as under:-
"26.We are in respectful agreement with the aforesaid view. Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of 6/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a “no due certificate” and enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal 7/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 proceeding. The court’s principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible. "
(ii) Judgment of the Hon'ble First Bench of this Court in Crl.R.C.(MD) No.612 of 2020 dated 29.04.2021.
11. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) and perused the documents placed on record carefully.
8/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016
12. It is the case of the defacto complainant that the petitioner, who is none other than the Manager in the Co-operative Society along with others, viz., Secretary and others had colluded with each other and sanctioned loan to the persons, who are not at all eligible to avail the said benefits by making false entries in the documents.
13 .It is pertinent to point out that the petitioner, during the course of enquiry had informed that the borrower, namely, M.P.Murugesan had mortgaged his house, situated at Maravadi for obtaining loan and after due verification by the petitioner as well as the Secretary and authorised person of the society, the loan was sanctioned. Thereafter, it came to light that there is no such house situated in the said place and the house, which was identified by the petitioner was mortgaged with Housing Board Co- operative society, Dharmapuri at the earlier stage itself. In contrary, the said Murugesan, during the course of enquiry had stated that there is no house in the plot, which was mortgaged to the present society and beside to his land, there is a house, which was mortgaged to the Co-operative Society, Dharmapuri and the same was already informed to the present petitioner and others and they have accepted the same and granted a loan for a sum of Rs.3,00,000/- and the said evidence is recorded hereunder:- 9/16
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14. Moreover, the petitioner during the course of enquiry had stated that Registrar and Secretary of the society had sanctioned loan only on satisfying with the documents produced by the borrowers. Further, the borrower, viz., Manohari had visited the Society along with the legal heir, Prabhakaran and requested to sanction loan taking into account the income of the legal heir. The authorised persons should have sanctioned the loan only after verifying the Will, however, without doing so, on a mere oral statement stated by the said borrower, the authorised signatories had 10/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 sanctioned loan. Only thereafter it came to light that one P.Manohari had written the Will in favour of six persons. The petitioner also stated that before sanctioning the loan, it is the duty of the Secretary to check all the details.
15. That apart, the said Prabakaran was also examined and during his examination, he has stated that there are no legal heirs for the said Manohari and she had nominated the said Prabakaran as well as other five members, as her legal heirs and written a Will on 03.04.2002. The mortgaged house belongs to the said Prabakaran and five others, however, while obtaining mortgage loan, the said Prabakaran and Manohari only had signed in the documents and the said fact was not disclosed to other five persons, who are parties to the Will.
16. Further, the said Manohari had signed the application of the Mortgage loan No.4653; Loan Document No.139/03-0], wherein in the bottom of the page it is stated that the particulars furnished in the documents were correct up to the knowledge and Patel, Secretary, the petitioner, Manager and the Special officer, K.S.Aahajohn had given the promissory certificate. From the enquiry report of the aforesaid persons, it 11/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 is clear that the petitioner along with others have misappropriated the money, which belongs to the Society.
17. It is pertinent to point out that the mortgage loan with respect to the house mentioned property was sanctioned in No.291/02-03 on 31.03.2003 [loan no.94/02-03] by the Secretary of the Society. The petitioner, manager and the Special Officer, Ahajohn of the society had given a certificate as 'Roof Completed' and recommended for further loan of Rs.30,000/- and Rs.70,000/-. On account of the said recommendation, the loan amount was disbursed. However, only on enquiry under Section 81 of Co-operative act, it came to light that there is a old tiled house existing in the place, which was mortgaged to the Society. In the absence of any house being built in the said locality, an erroneous certificate was given by the said Patel, Secretary, K.S.Aaha Rajan, Separate officer, the petitioner, manager and M.Krishnan, Sub Registrar, [housing board] stating a new construction was built. Hence a criminal case has been registered on account of the fact of cheating and preparation of malafide documents.
18. Further, the submission of the learned counsel for the petitioner that all the money has been repaid with interest by the borrowers on 12/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 24.07.2010, before the charge sheet has been filed, viz., on 23.11.2010 and therefore, there was nothing to show that any loss had been caused to the society, cannot be accepted, in view of the fact that it is not such a case where one can pay the amount and obtain a 'no dues certificate' and enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done and the same is not legally permissible, as per decision of Hon'ble Supreme Court reported in (2014) 15 Supreme Court Cases 29 [State of Maharashtra through Central Bureau of Investigation Vs. Vikram Anantrai Doshi and Others].
19. Taking note of the fact that the petitioner in collusion with others had sanctioned housing loan to the persons, who are ineligible and they have colluded with the said persons, viz., borrowers, by realising part payment, as if the house has been built, however, there is only a tiled house and no new house has been constructed; the petitioner and others have not verified which land has been mortgaged, whether a new house has been constructed or not; all these things should have been verified before sanctioning the loan, but the same has not been done, which amounts to negligence on the part of the petitioner and dereliction of duty. Further, public money has been swindled by the petitioner and others, 13/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 thereby, they have misappropriated the money of Society and committed criminal breach of trust. The aforementioned Judgment of the Hon'ble Supreme Court cited by the learned Government Advocate (Crl.Side) is squarely applicable to the case on hand and this Court being bound by the Judgment of the Hon'ble Supreme Court, is inclined to dismiss the present Criminal Original petition. Further, the disputed facts need not be gone into at this stage and the same need to be proved during trial. The Learned Judicial Magistrate No.I, Dharmapuri is directed to conduct and conclude the investigation in a fair manner without being influenced with any of the observations made by this Court. It is needless for this Court to point out that the parties are directed to co-operate with the trial without getting un- necessary adjournments.
In view of the above, the present Criminal Original Petition is dismissed with the above direction. Consequently, connected Miscellaneous Petition is closed and the Interim Stay already granted by this Court stands vacated.
22.07.2021 Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Order ssd 14/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 To
1. The Judicial Magistrate No.I, Dharmapuri
2.The State represented by its Inspector of Police, CCIW, Dharmapuri
3. The Public Prosecutor, High Court, Madras 15/16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.26941 of 2016 & Crl.M.P.No.13553 of 2016 V.BHAVANI SUBBAROYAN, J., ssd Crl.O.P.No.26941 of 2016 and Crl.M.P.No.13553 of 2016 22.07.2021 16/16 https://www.mhc.tn.gov.in/judis/