Madras High Court
K.Mani vs State Of Tamil Nadu on 13 December, 2021
Author: R.N.Manjula
Bench: R.N.Manjula
Crl.R.C.No.421 of 2015
and MP.No.2 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.11.2021
PRONOUNCED ON : 13 .12.2021
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.421 of 2015
and
MP.No.2 of 2015
K.Mani
.. Petitioner/First
accused
Vs.
State of Tamil Nadu,
Rep. by Inspector of Police,
Commercial Crime Investigation Wing (CCIW),
Dharmapuri Division,
Krishnagiri.
(Crime No.3/1988)
.. Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C., praying to call
for the records in C.A.No.27 of 2012 on the file of the Additional Sessions
Judge, Dharmapuri and set aside the order dated 28.11.2014 made in
C.A.No.27 of 2012 confirming the conviction and sentence imposed in
C.C.No.173 of 1992 on the file of the learned Judicial Magistrate, Harur dated
23.08.2012 and acquit the Petitioner/accused-1 of the charges framed against
him.
https://www.mhc.tn.gov.in/judis
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Crl.R.C.No.421 of 2015
and MP.No.2 of 2015
For Petitioner : Mr.S.Karthikeyan
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
***
ORDER
This Criminal Revision has been preferred challenging the judgment of the learned Additional Sessions Judge, Dharmapuri dated 28.11.2014 in C.A.No.27 of 2012.
2. The petitioner/first accused was working as an Agricultural Officer in the Integrated Tribal Development Programme, Harur and second and third accused were attached to Sithery Lamp Cooperative Society. As per the case of the prosecution, the first accused purchased Agricultural inputs from various Government firms/Department, Harur, Cooperative Marketing Society and Dharmapuri District Cooperative Agro service, Cooperative Society etc., under the cover of bills issued by the said Cooperative Societies. The Government firms and societies prepared the bills in triplicate and retained one in the bill book and issued two bills to the first accused. The first accused, in turn would https://www.mhc.tn.gov.in/judis 2/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 send one bill to the Assistant Director of Horticulture, Krishnagiri and give another bill to the Lamp Society along with the inputs covered under the bills. The Sithery Lamp Society after acknowledging the said products would sell them at a subsidised rate to the local tribal people. These supplies are being done for uplifting the tribal members. The second accused, who was working as an Accountant of the Lamp Society, issued acknowledgment by making due endorsement on the bills. The quantity and quality of the inputs to be entered in the stock register. The Assistant Director of Horticulture, Krishnagiri on receipt of the detailed contingent bills from the petitioner/first accused would issue Demand Draft for the cost of the inputs purchased by him. In the course of such transaction, the accused 1 to 3 conspired together, falsified the accounts and forged the records in order to make undue enrichment. The records have been created in such a way that the goods were distributed to the Societies by destroying the registers. The act of the accused 1 to 3 is criminal breach of trust and it caused a loss of Rs.1,06,393.13/-. By doing the above acts, the accused have committed the offence under Sections 120(B), 409, 477A and 201 IPC.
3. On 29.02.1988 a complaint was given by the Deputy Registrar of https://www.mhc.tn.gov.in/judis 3/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 Cooperative Societies, Dharmapuri in connection with the above scandal. Mr.Soundararajan, the Inspector of Police (PW-12) has registered the FIR in Crime No.3 of 1988 under Sections 409, 477(A) r/w 109 IPC.
4. PW12 took up the case for investigation and he examined the witnesses, recovered the documents, obtained sample signature from the accused for the purpose of comparing the same with the disputed documents and to obtain report from the scientific expert and thereafter, he got transferred.
5. PW13/Mr.Arumugam, who succeeded him, had continued the investigation and got the report of scientific expert and enquired the rest of the witnesses and thereafter, he also got transferred. Subsequently, PW14/Mr.Govindarajan took up the investigation and completed the same.
6. After completing of investigation, charge sheet has been filed against the accused for the offence under Sections 120(B), 408, 409, 477(A) and 201 IPC. Since the accused denied the involvement and claimed to be tried, the learned Trial Judge conducted trial.
https://www.mhc.tn.gov.in/judis 4/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015
7. During the course of the trial, on the side of the prosecution 14 witnesses have been examined as PW1 to PW14 and 43 exhibits have been marked as Exs.P1 to P43. On the side of the defence, two witnesses have been examined as DW1 and DW2 and 3 exhibits were marked as Exs.D1 to D3.
8. After the conclusion of the trial and on considering the materials on record, the learned Trial Judge found that the accused are guilty and convicted them as under:
Rank of the Charges framed Findings Punishment Accused A1 120(B), 409, 409 & (i) 6 months Rigorous 477(A), 201 IPC 477(A) IPC Imprisonment and to pay fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 409 IPC.
(ii) 6 months Rigorous Imprisonment and to pay fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 477(A) IPC A2 120(B), 408, 408 & (i) 6 months Rigorous 477(A), 201 IPC 477(A) IPC Imprisonment and to pay https://www.mhc.tn.gov.in/judis 5/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 Rank of the Charges framed Findings Punishment Accused fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 409 IPC.
(ii) 6 months Rigorous Imprisonment and to pay fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 477(A) IPC A3 120(B), 408, 408 & (i) 6 months Rigorous 477(A), 201 IPC 477(A) IPC Imprisonment and to pay fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 409 IPC.
(ii) 6 months Rigorous Imprisonment and to pay fine of Rs.300/- in default to undergo one month simple imprisonment for the offence u/s 477(A) IPC
9. The appeal preferred by the first accused in C.A.No.27 of 2012 has been dismissed and the judgment of the trial Court was confirmed. Aggrieved over that, the first accused has preferred the present revision. https://www.mhc.tn.gov.in/judis 6/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015
10. Heard the learned counsel for the revision petitioner and the learned Government Advocate (Crl. Side) appearing for the State and also perused the entire materials available on record.
11. Point for consideration:
Whether the conviction and sentence of the first accused for the offence under Sections 409, 477(A) IPC by the learned Sessions Judge based on the materials available on record is fair and proper?
12. The learned counsel for the revision petitioner submitted that before taking the case on file, the Courts below failed to note that mandatory sanction under Section 197 Cr.P.C is not obtained; the prosecution has not come over with a specific case; the departmental enquiry was conducted against the accused and an order was passed to recover the misappropriated amount from the revision petitioner/A1 and he had also paid the same; the prosecution did not prove before the Court about the involvement of the first accused in the alleged offence; the prosecution failed to prove that this accused was placed in a position that he could alter or mutilate or falsify any records, security or https://www.mhc.tn.gov.in/judis 7/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 accounts; in the scientific evidence given by PW11-Forensic expert, there is nothing incriminating against this accused.
13. The learned Government Advocate (Crl.Side) appearing for the State submitted that the First Appellate Judge is correct in dismissing the appeal on the basis of the evidence available against him; the departmental enquiry is different from the criminal proceedings and hence, the consequence of the departmental proceedings would not have any impact on this case.
14. The first and foremost point raised by the learned counsel for the revision petitioner is that the respondent/State failed to get the mandatory sanction under Section 197 Cr.P.C. On perusal of the records, it is seen that the accused have been charged for misappropriating money by falsifying and forging the records and criminal breach of trust. The Hon'ble Supreme Court held that for the offence of criminal breach of trust committed by the Government Servants, the previous sanction is not necessary. The learned Appellate Judge applied the above settled position of law by relying on the judgment of the Hon'ble Supreme Court in N.Bhargavan Pillai (Dead) by https://www.mhc.tn.gov.in/judis 8/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 L.Rs. and another Vs. State of Kerala reported in AIR 2004 SC 2317 Scale 693.
15. The learned counsel for the revision petitioner relied on the judgement of the Hon'ble Supreme Court in the case of D.Devaraja Vs. Owais Sabeer Hussain reported in (2020) 7 SCC 695, in support of his contention that the sanction under Section 197 Cr.P.C is mandatory in respect of any offences committed by the Government servants. In the said judgment, it is observed by the Hon'ble Supreme Court that the object of previous sanction under Section 197 Cr.P.C is to protect the public servants from harassment by initiation of frivolous and retaliatory criminal proceedings.
16. The above case dealt by the Hon'ble Supreme Court arose out of a complaint filed against a police officer and cognisance was taken by the Magistrate on the said complaint without getting prior sanction from the Government. However, it is observed that not every offence committed by a police officer mandates sanction under Section 197 Cr.P.C. https://www.mhc.tn.gov.in/judis 9/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015
17. Insofar as this case is concerned, the prime allegation against the accused is breach of trust and that the accused had acted beyond their authority and misappropriated money by falsifying the records. The above allegations are made on verification of records. While executing duties of a Government servant, he is under no obligation to falsify the records. Such actions clearly does not fall under the ambit of discharging duties. In the judgment relied on by the learned counsel for the revision petitioner, it is held that to decide whether sanction is necessary, it has to be seen whether the act is totally unconnected with the official duty or whether there is any reasonable connection with the official duty. It is relevant to extract paragraph 70 of the said judgment as under:-
“70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.” https://www.mhc.tn.gov.in/judis 10/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015
18. If the accused were found to have suppressed/falsifying the records, such actions will not fall under the category of performance of duty. Hence, it is for the Appellate Judge to conclude that in offences of this nature, previous sanction of the Government before taking cognisance need not be necessarily obtained.
19. The learned counsel for the revision petitioner submitted that the first accused has got no connection with maintaining the bills or maintaining the register with regard to the inputs received through the bills. The first accused played role in procuring the agricultural inputs under receipts, which have to be prepared in triplets. Thereafter, he has to hand over the agricultural inputs to the respective societies along with the receipts.
20. According to the evidence of PW3, who was working as the Managing Director at Sithery Cooperative Society, the first accused, in his capacity as Horticultural Officer, has to distribute the agricultural inputs to the tribals at subsidised rates. The second accused was the care taker and record https://www.mhc.tn.gov.in/judis 11/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 keeper and the third accused was the Assistant. The duty of the second accused is to keep the inputs from various sources safely in the godown and protect them by making relevant entries in the register. He should also maintain the connected records. The duty of the third accused is to get applications for loan from the local tribals and coordinate with the Cooperative Bank and get loans to the members of the Society. And he has to maintain the register in connection to these activities. On 28.12.1982 when the second accused was relieved from duty, he handed over the records to PW2/Harikrishnamurthy, who had succeeded him to the post of Accountant. While PW12 took charge, he found that the stock register for the year 1981 - 1982 was not available.
21. According to the evidence of PW10/Syed Abu Yusuf Husaini, who was the enquiry officer, the duty of the first accused is to distribute the agricultural inputs to the tribals through the Society. PW10 could not find the registers that have to be maintained by A2 for the year 1981-1982 , but he has seen the endorsements of stock numbers on the back side of the bills. Admittedly, the first accused was not maintaining any records. The evidence of PW10 would reveal that after selling the inputs entrusted to A2 and A3, they https://www.mhc.tn.gov.in/judis 12/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 have to retain the remaining stock by making due entries in the registers. For the inputs handed over by the first accused under certain bills, the second and third accused have made due endorsements. The evidence of PW10 on this aspect runs as under:-
“vjphp kzp njhl;lf;fiy mYtyuhf (IoOgp)
gzpg[hpe;jhh;/ gy;ntW epWtd';fspypUe;J muRf;F
brhe;jkhd vjphp kzp ,LbghUl;fis
th';fpapUe;jhh; vd;why; rhpjhd;/ bghUl;fis th';fp vjphp Furhkp vd;gthplk; vjphp kzp xg;gilj;jhh;
vd;why; rhpjhd;/ mjpy; rpy bghUl;fis vjphp
eluh$; ,lk; xg;gilj;Js;shh;/ vjphp kzp Twpaij
itj;Jj;jhd; ,e;j tptu';fis ehd; ePjpkd;wj;jpy;
Twfpnwd;/ bghUis bgw;Wf;bfhz;ljw;fhf vjphp
FUrhkp. eluh$d; Mfpnahh; ifbahg;gk; bra;J
cs;shh;/ vjphp kzp bghUis bfhLj;jjw;fhft[k;
ifbahg;gk; bra;Js;shh; gpd; mtnu jahhpj;Js;shh;/
mij ePjpkd;wj;jpy; xg;gilj;Js;nsd;/ me;j
bghUl;fis rpj;njhp kiythH; kf;fspd;
Kd;ndw;wj;jpw;fhf vjphp kzp kw;w vjphpfsplk;
https://www.mhc.tn.gov.in/judis
13/18
Crl.R.C.No.421 of 2015
and MP.No.2 of 2015
xg;gilj;jhh;/ ,LbghUl;fspy; 100# kjpg;gpy;
U:/15.619.1 igrh (7809 57 igrh 2) ,e;j mstpw;F tpw;gid bra;ag;gl;Ls;sJ/ ,jdhy; muRf;F ,Hg;gL P 1yl;rj;J 6Mapuj;J 393/13 igrh Mfk;/ tprhuizapy; FUrhkp eluh$d; vjphpfs; ifahly;
bra;Js;shh; vd;Wk; nkYk; ,LbghUl;fs; ,Ug;ig guhkhpg;gjw;Fk; tpepnahfpg;gjw;Fk; ,th;fs; ,Utnu bghWg;ghsh;fs; vd;W Twpa[s;nsd;/ !;lhf; hp$p!;lh;
gjpntl;il guhkhpg;gJ ntz;oaJ r';f fzf;fh;
FUrhkpapd; bghWg;g[. mij mth;
guhkhpf;fg;gltpy;iy/ ,e;j ,LbghUl;fis ehd;
kzp vd;gthplk; ,Ue;J bgw;Wf;bfhz;nld;/ mit
Kiwna ,Ug;g[ gjpntl;oy; ,e;j gf;fj;jpy;
gjpag;gl;Ls;sJ vd;Wk; Fwpg;gpl;Ls;shh;/ vd;Dila
mwpf;ifapy; vjphp kzpia 3tjhf
fhz;gpf;fpd;nwd;/”
22. Therefore, the evidence of PW10 would show that since the involvement of the first accused is remote, he was arrayed as the third https://www.mhc.tn.gov.in/judis 14/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 delinquent in his enquiry proceedings. It is difficult to comprehend how the first accused could have involved in the offence after the inputs procured by him have been handed over to A2 and A3 for disbursal and it is their duty to maintain relevant registers by making proper entires.
23. PW11 is the handwriting expert who had examined the sample signatures with the official signatures on the documents seized. His report would reveal that the questioned handwritings tallied with the handwritings of A2 and A3 and it did not tally with the handwriting of the first accused. When PW10-Enquiry Officer himself admitted in his examination that his enquiry revealed that the persons in-charge of the maintenance of the inputs and distribution are the second and third accused, there is no reason to rope in the first accused.
24. Per contra, it is submitted by learned Government Advocate that the first accused has also paid the loss to the Society and that would amount to confession of his guilt. When a person in service is booked for this type of offences, he would be in compelling circumstances to do whatever things https://www.mhc.tn.gov.in/judis 15/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 dictated by his superior in order to get out of the trouble. So the paying back the loss to the society alone can not be construed as confessing the guilt. However, the evidence on record does not show the involvement of the first accused in the offences charged against him. The Courts below omitted to appreciate the limited role played by the first accused as a Horticultural Officer and his interaction with A2 and A3. His limited duty is to procure the inputs which are kept under the custody of A2, who is the godown in-charge and who used to disburse those stocks to the beneficiaries and for which, the records should be maintained. Since the evidence on record did not prove the involvement of the first accused, the Courts below ought to have given benefit of doubt to the first accused. Since the Appellate Court also omitted to properly appreciate the materials on record as against the first accused, the judgement of the first Appellate Court has to be set aside as against this petitioner/ first accused.
In the result, this Criminal Revision Case is allowed and the judgment dated 28.11.2014 passed in C.A.No.27 of 2012 by the learned https://www.mhc.tn.gov.in/judis 16/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 Additional Sessions Judge, Dharmapuri, confirming the judgement in C.C.No.173 of 1992 dated 23.08.2012 by the learned Judicial Magistrate, Harur, shall stand set aside so far as it relates to the first accused and he is acquitted of all charges. Fine amount if any paid by the petitioner shall be refunded. Bail bonds, if any, executed shall stand cancelled. Consequently, connected Miscellaneous Petition is also closed.
13.12.2021 Index: Yes/No Internet: Yes /No Speaking / Non Speaking Order kmi To
1.The Additional Sessions Judge, Dharmapuri.
2.The Judicial Magistrate, Harur.
3.The Inspector of Police, Commercial Crime Investigation Wing (CCIW), Dharmapuri Division, Krishnagiri.
4. The Public Prosecutor, High Court of Madras, Chennai-600 104.
https://www.mhc.tn.gov.in/judis 17/18 Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 R.N.MANJULA, J kmi Crl.R.C.No.421 of 2015 and MP.No.2 of 2015 13.12.2021 https://www.mhc.tn.gov.in/judis 18/18