Madras High Court
L.Manjula vs The State Of Tamil Nadu on 13 October, 2015
Bench: R.Sudhakar, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.10.2015
CORAM
THE HON'BLE MR. JUSTICE R.SUDHAKAR
AND
THE HON'BLE MS. JUSTICE V.M.VELUMANI
W.P.(MD)No.7510 of 2014
L.Manjula .. Petitioner
Vs.
1. The State of Tamil Nadu,
Rep. by the Secretary to Government,
Home (Courts) Department,
Fort St.George, Chennai-09.
2. The Registrar General,
High Court, Madras.
3. The District Judge,
Sivagangai District,
Sivagangai.
4. The Principal District Munsif-cum-
Judicial Magistrate, Karaikudi,
Sivagangai District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of Certiorarified Mandamus to call for the records pertaining
to the impugned order in R.O.C.No.1016/2010/C1, dated 08.04.2014 on the file
of the Respondent No.2, quash the same as illegal and consequently, directing
the Respondent No.4 to reinstate the petitioner in service in the post of
Typist, with all service benefits.
!For Petitioner : Mr.T.Lajapathi Roy
^For R1 : Mr.N.Manokaran
Special Government Pleader
For R2 to R4 : Mr.D.Sivaraman
:ORDER
(Order of the Court was made by V.M.VELUMANI, J.) This writ petition has been filed challenging the impugned order in R.O.C.No.1016/2010/C1, dated 08.04.2014, on the file of the Respondent No.2 and to direct the Respondent No.4 to reinstate the petitioner in service in the post of Typist, with all service benefits.
2. The petitioner was working as Typist in the Court of Principal District Munsif-cum-Judicial Magistrate, Karaikudi. Her husband borrowed monies for construction of house in his name. He compelled the petitioner to obtain loan jointly and he handed over the cheques signed by the petitioner in discharge of the said loan. The petitioner's husband did not repay the loan. The creditors filed a criminal case against the petitioner under Section 138 of Negotiable Instruments Act, as her husband had handed over the cheque signed by her. The petitioner was convicted in C.C.No.38 of 2004 and she was imposed a punishment of six months rigorous imprisonment and a fine of Rs.5,000/-. Similarly, in another case, she was convicted and imposed a punishment of one year rigorous imprisonment and also fine of Rs.1 lakh. The petitioner filed appeals against her conviction. Subsequently, she settled the entire amount and the complainant consented to compound the case and acquit the petitioner. The same was recorded in the order dated 26.3.2011 passed by the Sivagangai District Legal Service Authority, Sivagangai. It is also averred that misunderstanding arose between the petitioner and her husband and they were living separately from 17.02.2003 onwards. The marriage between the petitioner and her husband was dissolved by a decree of divorce dated 12.04.2004.
3. Meanwhile, a show cause notice dated 29.01.2007 was issued to her to show cause as to why she should not be dismissed from service in view of her conviction in criminal case. Thereafter, the learned District Judge, Sivagangai District, Sivagangai, dismissed her from service by Order No.R.O.C.No.3/2007/A1, dated 02.09.2010. The petitioner filed an appeal before the second respondent against the said order of the third respondent. The second respondent, by order dated 08.04.2014, dismissed the appeal filed by her. Against the said dismissal order, the petitioner has filed the present writ petition.
4. The third respondent filed a counter affidavit denying the averments made by the petitioner. The third respondent has stated that the petitioner was convicted in two criminal cases and therefore, she is not entitled to reinstatement in service and prayed for dismissal of the writ petition.
5. The learned counsel for the petitioner reiterated various averments made in the affidavit and relied on the judgment of this Court, dated 26.09.2006 in M.H.Damodaran Vs. The Special Officer, Madurai [Indian Kanoon ? http://indiankanoon.org/doc/1138483/]. He further pleaded that since the petitioner has been acquitted in all the criminal cases, she is entitled to reinstatement in service.
6. Per contra, the learned counsel for respondents 2 to 4 contended that all the criminal cases were compromised and it will not amount to acquittal. The respondents 3 and 2 have given valid reasons for dismissing the petitioner from service. There is no infirmity in the order and prayed for dismissal of the writ petition.
7. We have heard the submissions of the learned counsel for the petitioner as well as the respective counsels appearing on behalf of the respondents.
8. From the materials on record, it is seen that the petitioner's husband borrowed monies for construction of house in his name. He made the petitioner as joint borrower and handed over cheques signed by the petitioner to the creditors. Subsequently, the marriage between the petitioner and her husband was dissolved by a decree of divorce, dated 12.04.2004.
9. It is not in dispute that the petitioner was convicted under Section 138 of Negotiable Instruments Act. Subsequently, the issues were settled in Mega Lok Adalat and the petitioner was acquitted. In the circumstances, it has to be seen that whether the conviction of the petitioner under Section 138 of Negotiable Instruments Act is a punishment for an offence involving moral turpitude.
10. A Division Bench of this Court in M.H.Damodaran v. The Special Officer, Madurai, referred supra, referred to another decision of the Division Bench of the Kerala High Court in C.S.Nair v. The General Manager, State Bank of Travancore, Thiruvananthapuram, wherein identical issue was answered and held as under:
?9. Whether the involvement of an employee in a case under Section 138 of Negotiatble Instruments Act and punishment awarded in the said proceeding will attract moral turpitude is considered by a Division Bench of the Kerala High Court in the decision reported in 1996 Crl.L J 4289 (C.S. Nair v. General Manager, State Bank of Travancore, Thiruvananthapuram) and in para 6 and 10 it is held as follows,
6. We are of the view, that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as defined in Section 415 of the Indian Penal Code. A cause of action for a criminal prosecution under Section 138 of the Act will arise, not on the date of issuance of the cheque, but only when the drawer of the cheque fails to pay the amount within the statutory period after he is called upon by the payee through a notice. A person sometimes may issue a cheque knowing that there is no sufficient fund in his account but still with a hope that he would be able to make arrangements with his bankers to honour the cheque as and when it is presented by the drawee. Section 138 is in fact incorporated by the Negotiable Instruments Act only to give more credibility for cheques and not to cover the areas which are already within the jurisdiction of Criminal Court for the offence of cheating. So the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating.
7. ...
8. ...
9. ...
10. Corpus Juris Secendum on which reliance was placed by the appellant's counsel states that moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime (vide Page 1203, Vol.58). It must not merely be mala prohibita, but the act itself must be inherently immoral. It further states that the term moral turpitude "does not refer to conduct which before it was made punishable as a crime, was generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed." Penal statutes always make a distinction between intentional and unintentional acts and the punishments also vary. A person may cause the death of another by his rash and negligent driving, which act, though may be an offence, does not involve moral turpitude, but if a person with a deliberate intention drives a vehicles to kill another, it is an offence which involves moral turpitude.
......
Though the act and the result of that act may be the same in both, the main and important difference between the two is the lack of intention in the former, and the presence of it in the latter. At this stage we may say that prior to the insertion of Section 138 in the Act, issuance of a cheque without sufficient funds was not made an offence unless it falls within Section 415 of I.P.C. As the act of issuing a cheque without sufficient funds was not generally regarded as morally wrong or corrupt we are fortified in our view, that, the offence under Section 138 will not normally involve moral turpitude.
Ultimately the Division Bench in para 12 held that the question whether an offence involve moral turpitude or not has to be decided on the facts of each case. All offences do not necessarily involve moral turpitude. Section 138 of the Negotiable Instruments Act is no exception to the said principle and therefore in that case involvement of moral turpitude has not arisen.' ......
12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. ...
.....
13. Further, it is to be noted that the complaint filed by the complainant against the petitioner was also dismissed due to compounding of the offence and the conviction and sentence passed by the learned Judicial Magistrate was also set aside by the appellate court by Judgment dated 7.6.2006. This subsequent event is also relevant for consideration in this case. On that score also the termination order passed by the respondent cannot be treated as valid. A Division Bench of this Court in the decision (The Secretary, Vallalar Gurukulam Higher Secondary School, Vadalur, Cuddalore District v. District Educational Officer, Cuddalore, Cuddalore District and Anr.) in para 6 held thus, ... Once a person is acquitted in a criminal case, it has to be deemed that he never committed that offence. This is because every judgment operates retrospectively unless expressly made prospectively, unlike a legislation which normally operates prospectively unless expressly made retrospectively. Since the employee has been acquitted in the criminal case that judgment will operate retrospectively and it has to be deemed that the teacher concerned was never guilty of that offence. Consequently, he is entitled to his salary for the period of his unemployment and he is entitled to reinstatement. We see no infirmily in the order of the learned single Judge. The position may have been different if disciplinary proceedings had also been instituted against the respondent, but that was not done.? (emphasis supplied)
10. A reading of Section 138 of the Negotiable Instruments Act makes it clear that it is a deeming provision and the offence committed being commercial in practice cannot be taken as one involving moral turpitude. In other words, the conviction for an offence under Section 138 of Negotiable Instruments Act cannot be termed as a punishment for an offence involving moral turpitude. Further, in the present case, the petitioner and her husband were separated by a decree of divorce, dated 12.04.2004 and the amounts were borrowed by her husband. The petitioner only settled all the amounts borrowed by her husband and she was acquitted from all the criminal cases. In the case on hand, in the order dated 26.3.2011 passed by the Sivagangai District Legal Service Authority, Sivagangai, it is recorded that the complainant received the entire cheque amount and consented to compound the case and acquit the accused. Under Section 147 of the Negotiable Instruments Act, the offences are compoundable and by virtue of the order dated 26.3.2011 passed by the Sivagangai District Legal Service Authority, Sivagangai, the offence under Section 138 of the Negotiable Instruments Act has been compounded. In terms of Section 320(8) of the Code of Criminal Procedure, the composition of an offence shall have an effect of an acquittal of the accused with whom the offence has been compounded. Therefore, the proceedings of the department culminating in the order of punishment are per se unsustainable and are liable to be set aside.
11. In the result, this writ petition is allowed and the order of respondents 3 and 2 are set aside. The respondents are directed to reinstate the petitioner with all consequential benefits. No costs.
To
1. The Secretary to Government of Tamil Nadu, Home (Courts) Department, Fort St. George, Chennai-09.
2. The Registrar General, High Court, Madras.
3. The District Judge, Sivagangai District, Sivagangai.
4. The Principal District Munsif-cum-
Judicial Magistrate, Karaikudi,
Sivagangai District. .