Madras High Court
S.Rajamohan vs State Rep. By on 18 October, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 21.09.2023
PRONOUNCED ON 18.10.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.9151 of 2023
and
Crl.M.P.No.5913 and 5916 of 2023
and
Crl.RC.No.486 of 2023
and
Crl.M.P.No.3735 of 2023
and
Crl.R.C.No.1388 of 2023
Crl.O.P.No.9151 of 2023:
S.Rajamohan ... Petitioner/A-2
Vs.
State rep. by
The Inspector of Police,
ACB, CBI, Chennai.
(Cr.No:RC/MA1/2012/A/0051) ... Respondent/Respondent
PRAYER:- Criminal Original Petition filed under Section 482 Cr.P.C., to call for
the records in C.C.No.3 of 2018, on the file of the learned Principal Special
Judge for CBI Cases, VIII Additional City Civil Court, Chennai and quash the
same in respect of the petitioner.
For Petitioner :Mr.A.Ramesh, Senior Counsel, for
M/s.R.Sunil Kumar
For Respondent :Mr.K.Srinivasan,
Special Public Prosecutor
https://www.mhc.tn.gov.in/judis
1/55
Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
Crl.R.C.No.486 of 2023:
R.Gomathy ... Petitioner/Accused(A3)
v.
State rep. by
The Inspector of Police,
SPE/CBI/ACB, Chennai
(RC MA1 2012 A 0051) ... Respondent/Complainant
Prayer: Criminal Revision Case filed under Section 401 & 397 of Cr.P.C., to
discharge the petitioner/accused-3 by setting aside the order passed by the
learned Principal Special Judge for CBI Cases, VIII Additional City Civil Court,
Chennai in Crl.M.P.No.7595 of 2018 in C.C.No.3 of 2018 dated 28.02.2023.
For Petitioner :Mr.R.Sunil Kumar
For Respondent :Mr.K.Srinivasan
Crl.RC.No.1388 of 2023:
Devaki Vijay .. Petitioner/Accused No.4
v.
State rep. by
The Inspector of Police,
SPE/CBI/ACB, Chennai,
(RC MA1 2012 A 0051) ... Respondent/Complainant
Prayer: Criminal Revision Case filed under Section 401 & 397 of Cr.P.C., to call
for the original records and set aside the order passed by the learned Principal
Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai in
Crl.M.P.No.164 of 2019 in C.C.No.3 of 2018, dated 28.02.2023.
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
For Petitioner :Mr.K.Shankar
For Respondent :Mr.K.Srinivasan,
Special Government Pleader
COMMON ORDER
Crl.O.P.No.9151 of 2023, is filed to to call for the records in C.C.No.3 of 2018, on the file of the learned Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai and quash the same in respect of the petitioner.
2. Crl.R.C.No.486 of 2023, is filed to discharge the petitioner/accused-3 by setting aside the order passed by the learned Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai in Crl.M.P.No.7595 of 2018 in C.C.No.3 of 2018 dated 28.02.2023.
3. Crl.R.C.No.1388 of 2023, is filed to call for the original records and set aside the order passed by the learned Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai in Crl.M.P.No.164 of 2019 in C.C.No.3 of 2018, dated 28.02.2023.
4. The respondent filed a final report against the petitioners and one another namely A1-Shri.Vijay Rajamohan, A2-Shri.Rajamohan, A3-Tmt.R.Gomathy, A4-Tmt.Devaki Vijay, for the offences under Sections 109 https://www.mhc.tn.gov.in/judis 3/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 I.P.C r/w Section 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988 (in short PC Act).
5. The gist of the final report is as follows:
(i) A1-Shri Vijay Rajamohan held the positions of Joint Director General of Foreign Trade, Ministry of Commerce, Government of India, Under Secretary in Department of Elementary Education and Literacy, Deputy Secretary in Food Safety Standards and Authority of India, Deputy Secretary in the Department of Commerce, during the period 01.01.2005 to 31.10.2012 at New Delhi, Bangalore. He is a public servant as defined under Section 2(c) of PC Act.
(ii) The second accused Shri.Rajamohan is a retired employee of Postal Department. The third accused is the wife of Shri.Rajamohan and she is a house wife.
(iii) The fourth accused Tmt.Devaki Vijay, is the wife of the first accused and she is a house wife.
(iv) Shri.Vija Rajamohan while functioning as a public servant in the above capacities, during the period 01.01.2005 to 31.10.2012, acquired assets which were disproportionate to his known lawful sources of income. As on https://www.mhc.tn.gov.in/judis 4/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 31.10.2012, he was found to be in possession of disproportionate assets and pecuniary resources, to the tune of Rs.79,17,593/- in his name and in the name of his relatives, for which, he cannot satisfactorily account.
(v). For the purpose of computation of disproportionate assets, the period from 01.01.2005 to 31.10.2012 was taken as check period. During which, the first accused Shri.Vijay Rajamohan, had acquired the assets in question. He and other accused did not have adequate income to account for the acquisition of assets. As per the Statement-A, the details of assets/investments at the beginning of check period was Rs.2,92,727/-. As per statement-B, the details of assets at the end of check period on 31.10.2012 was Rs.33,59,362/-. Statement-C indicates the income and other receipts during the check period at Rs.1,19,28,538/-. Statement-D shows the expenditure during check period as Rs.1,67,79,496/-. The disproportionate asset was calculated at Rs.79,17,593/- which is 66.38% of disproportionate assets to the known sources of income.
6. It is informed that on the basis of this final report, charges have been framed against the accused and the case in C.C.No.3 of 2018 is pending for trial on the file of Principal Sub-Judge for CBI Cases, VIII Additional City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis 5/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
7. Mr.A.Ramesh, learned Senior Counsel appearing for the petitioner in Crl.O.P.No.9151 of 2023, made the following submissions:
(i) the respondent filed F.I.R., in No.RC MA1 2012 A0051 against (1) Shri.Vijay Rajamohan and his parents (2) Shri.Rajamohan, (3) Tmt.R.Gomathy on 20.11.2012, under Section 109 I.P.C., r/w 13(2) and 13(1)(e) of PC Act. It was alleged in the F.I.R that the first accused abetted by A-2 and A-3 was in possession of assets to the tune of Rs.1,85,04,700/-
allegedly amounting to 304% disproportionate to the known sources of income.
(ii) Nearly after five years of investigation, final report was filed on 06.10.2017 for the alleged offences under Section 109 I.P.C., r/w Section 13(2) and 13(1)(e) of PC Act, against (1)Shri.Vijay Rajamohan, (2) Shri.Rajamohan, (3)Tmt.R.Gomathy and (4) Tmt.Devaki Vijay, alleging that A-1 abetted by A-2 to A-4, was in possession of pecuniary resources and property to the tune of Rs.79,17,593/- which is 66.38% disproportionate to the known sources of income.
(iii) There is considerable stark difference with regard to quantum of disproportionate assets alleged to have been possessed by the accused in the First Information Report and in the final report.
https://www.mhc.tn.gov.in/judis 6/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
(iv) The first accused's wife Devaki was not shown as accused in the F.I.R., but she was added as accused in the final report.
(v) The respondent has not produced any single piece of evidence to show the transfer of money from the first accused either to the Trust or to the other accused, especially, the petitioner herein.
(vi) The petitioner is an octogenarian and he is not a public servant. He is knocking at the doors of this Court after his failure in the initial attempt before the trial Court for the relief of discharge.
(vii) The first accused Shri.Vijay Rajamohan filed a discharge petition under Section 239 of Cr.P.C., in Crl.M.P.No.3908 of 2018 before the Principal Sessions Judge for CBI Cases, VIII Additional City Civil Court, Chennai, on the ground that the sanction accorded was invalid. This contention was accepted and the trial Court discharged the first accused. However, in the revision filed by the respondent in Crl.R.C.No.349 of 2019, the order of the trial Court was set aside. The first accused filed S.L.P. Crl. No.1568 of 2022 before the Hon'ble Supreme Court of India and that ended in dismissal on 11.10.2022.
(viii) The petitioner and other accused filed Crl.M.P.No.7595 of 2018, Crl.M.P.No.164 of 2019 and Crl.M.P.No.167 of 2019 for discharge. They filed the discharge petitions on the ground that the first accused was discharged by https://www.mhc.tn.gov.in/judis 7/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 the trial Court. In view of dismissal of discharge petition filed by the first accused by the Hon'ble Apex Court, the discharge petitions filed by the petitioner and other accused were also dismissed. The petitioner has not raised any contentions which were raised before the trial Court in the discharge petition. He did not file any revision against the dismissal of the discharge petition.
(ix) The petitioner is a retired Government official and reputed Trade Union Leader of National Federation of Postal Employees(NFPE). He along with like-minded persons from his relatives, started a Public Charitable Trust in the name and style of M/s.Sakthi Rubini Educational and Charitable Trust, to provide Teachers Training and other educational and charitable activities.
(x) Though major expenditure of Rs.2,78,11,000/- is shown on the head of construction of college building of the Trust, the respondent consciously avoided to make the Trust as an accused. The Trustees cannot be made as offenders, as the properties are not owned by the Trustees. If the Trust is added as an accused, the income of the Trust and its Trustees will have to be taken into consideration and added in Statement-C. In that case, there will not be any disproportionate asset at all.
(xi) The final report was submitted by the respondent on the surmises and conjectures that the first accused, who is the eldest son of the petitioner, https://www.mhc.tn.gov.in/judis 8/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 has been the root cause for the flow of money and on erroneous belief and miscalculations. If proper investigation and assimilation of facts are taken into account, the Agency would have reached a conclusion that there is no disproportionate asset.
(xii) There is a miscalculation of income and expenditure. If a proper calculation is made, there will not be any disproportionate asset. Disproportionate asset is mainly on account of excess expenditure over the income inferred by the transaction. If the amounts are corrected and certain omissions are included, there will not be any disproportionate asset. The petitioner relies only on the prosecution documents and not relying on extraneous documents.
(xiii) Apart from A-2 and A-3, there are three more Trustees to the Trust. The Secretary of the Trust is the younger son of A-2 and A-3. He is a Software Engineer who worked in USA with an annual salary of around Rs.1 lakh dollars at the relevant point of time. He was unmarried and he sent monies to his father through banking channel and spent moneys for the Trust. Petitioner gave in writing about the various incomes he received from his younger son during the course of investigation. However, the respondent did not take them into account.
https://www.mhc.tn.gov.in/judis 9/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
(xiv) The check period falls in nine assessment years. However, the respondent had taken only the income and expenditure of seven assessment years.
(xv) Income of the petitioner from the sale of one of the properties through sale deed, dated 22.11.2011, was not considered. Several income of A-1 to A-4 have been excluded by the respondent. The respondent committed an error by not including one item in the expenditure list, namely, purchase of property in the year 2006 for Rs.20,00,000/- in the name of the petitioner and his younger son Shri.Sudhakar. They have omitted to calculate the income totalling Rs.1,03,50,489/-.
(xvi) In the written arguments, the learned Senior Counsel for the petitioner produced Statements – C and D produced by the respondent with the details of omissions made by the respondent and the corrections.
(xvii) As per Statement – C produced by the petitioner, in Serial No.13, income of Tmt.P.Devaki for the assessment year 2012-13 was shown as Rs.1,60,911/-, but as per the income tax returns, the income was Rs.6,18,890/-. As per Serial No.14, income from the sale of Plot No.JF-10, Flat A-3, No.A3- Gupta Colony, New Delhi, in the name of Tmt.R.Gomathy to Lynette Massey is to be shown as Rs.9,45,000/-, but it was shown as Rs.8,20,000/-. Amounts received by the petitioner in Serial Nos.24, 25, 26, https://www.mhc.tn.gov.in/judis 10/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 27, 28, have been omitted by the respondent. Similarly, the amount received by Tmt.Devaki shown in Serial No.29 were also omitted. A total income of Rs.1,03,50,489/- was omitted. If this amount is added, the total income during the check period comes to Rs.2,22,79,027/-.
(xviii) On the expenditure part, a sum of Rs.63,62,650/- was shown in excess of the expenditure made for the construction of college buildings. This amount should have been omitted. Purchase of property for Rs.20,00,000/- at 37-E Park Dugar, Ramavaram, Chennai- 89 on 20.01.2006 was omitted. This amount should have been included. The total expenditure as per petitioner's calculation is only Rs.1,24,16,846/-, but it was wrongly shown as Rs.1,67,79,496/- by the respondent. If the calculation is made on the basis of the accounts produced by the petitioner, there will be no disproportionate assets accumulated. In fact, there is surplus savings of Rs.67,95,546/-.
(xix)As per Section 142-A of the Income Tax Act, 1961 the assessment was made only for the purpose of assessing the tax and that cannot be used for any other purpose. The learned Senior Counsel appearing for the petitioner relied on the judgment of the Hon'ble Supreme Court in Amiya Bala Paul v. Commissioner of Income Tax reported in 2003 (6) SCC 342, for this proposition.
https://www.mhc.tn.gov.in/judis 11/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
8. The learned Senior Counsel for the petitioner submitted that if proper calculation is made, there will be no disproportionate asset at the hands of the accused, especially, the petitioner during the check period. Prosecuting them is clear abuse of process of law and thus, he prays for quashing the proceedings against the petitioner.
9. The learned counsel for the petitioner in Crl.RC.No.486 of 2023 namely Tmt.R.Gomathy, submitted that she was only the Trustee of M/s.Shakthi Rubini Educational and Charitable Trust. In 2005, ie., before the check period, she purchased a property ie., Flat at No.A3, Upper Ground Floor, JF-10, Khirki Extension, Malaviya Nagar, Gupta Colony, New Delhi for Rs.1,25,000/-. She sold this property for a sum of Rs.9,45,000/- on 11.05.2005. From sale proceeds, she purchased a property to an extent of 11.34 acres on 05.12.2005 at Nagapattinam and 19 cents on 28.08.2006 at Nagapattinam. She leased out 11.34 acres of property in favour of the Trust. Since the Trust required the land of its own for any developmental activities like building constructions, she had gifted the land in favour of the Trust. She had only utilized the sale price of Rs.9,45,000/- for the purchase of other properties. She legally sold the property of her own, which was purchased before the check period, sold it during the check period and utilized the sale price for acquiring new property and gifted one of the properties in favour of the Trust. At any stretch of imagination, it cannot be contended that she had indulged in illegal transactions, especially, with regard to the allegations of https://www.mhc.tn.gov.in/judis 12/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 acquiring disproportionate assets to the known source of income by the first accused.
10. The learned counsel further submitted that the agricultural income received by her at the start of check period in respect 01 acre of land at Kottaiyoor, rental income from the property sold by her and lease income received by her, have been omitted to be included by the respondent. The entire sale price of Rs.9,45,000/- was not shown as income. She is unnecessarily prosecuted only for the reason that she is the mother of the first accused and made to face the Court proceedings at her advanced age. Stating all these grounds, she filed the discharge petition in Crl.O.P.No.7595 of 2018 under Section 239 of Cr.P.C. The Trial Judge without considering the merits in the case, had wrongly dismissed the discharge petition, necessitating the filing of this Criminal Revision case.
11. The learned counsel for the petitioner in Crl.RC.No.1388 of 2023 namely Tmt.Devaki Vijay, submitted that the First Information Report was registered on the basis of source information, probably at the instance of anonymous letters sent by the brothers of the second accused. Petitioner's name was not found as accused in the F.I.R and she was added as an accused in the final report. The second accused's younger son is an I.T professional and was working in USA. Second accused's younger son Sudhakar and other Trustees are not shown as accused. Despite conducting inspection at all the https://www.mhc.tn.gov.in/judis 13/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 places, no incriminating material was seized. There is no evidence secured to show the flow of funds from the first accused to other accused. The Trust and Colleges were functioning in a rental building initially and the buildings were constructed only in 2012. The Trust gave Rs.21,00,000/- to the petitioner as security deposit for using her building as a guest house. The amount had been transferred through proper banking transaction. Transfer of Trust amount, may amount to violation of the provisions of the Indian Trusts Act, 1882 or the Income Tax Act, 1961, but will not invite prosecution under PC Act. Rs.20,00,000/- received by her was not shown as income. Amount sent by the younger son of the second accused were not shown as income. The petitioner had the qualification of M.Sc., (IT) and B.Ed. She was helping her father in I.T., related activities and receiving periodical payments. The property in the name of the petitioner and her father at 29-W, Ramawaram, Chennai, was not shown in Statement-A and B. Income of the petitioner was also not shown correctly in Statement-C. If income and expenditure are properly and correctly calculated, there will be no disproportionate assets, but only surplus income will be available. She is implicated as an accused for the reason that she is the wife of the first accused, without any material. Therefore, she filed discharge petition in Crl.M.P.No.164 of 2019. The learned trial Judge without properly considering the grounds taken by the petitioner had dismissed the petition. Therefore, this Criminal Revision Case is filed. https://www.mhc.tn.gov.in/judis 14/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
12. Mr.K.Srinivasan, learned Special Public Prosecutor appearing for the respondent opposed these petitions on the following grounds:
(i) The discharge petition filed by the first accused, though allowed by the trial Court was dismissed by this Court. When the first accused challenged the dismissal before the Hon'ble Supreme Court, the Hon'ble Supreme Court confirmed the findings of the High Court. Findings on merits of the case by the High Court were not disturbed by the Hon'ble Supreme Court. The charges have been framed against the accused. The points raised by the petitioner in Crl.O.P.No.9151 of 2023/A2, involve intricate details and they are triable issues. The triable issues cannot be gone into in a petition filed under Section 482 of Cr.P.C. The quash petition is not maintainable once charges are framed as per the judgment of the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Private limited vs. CBI reported in 2018(16) SCC 299.
(ii) The Trust is only a façade and benami of the first accused. Many heavy cash remittance, at the initial stage of the Trust is purportedly, that of loans from the Trustees have been unaccounted, as the Trustees are unable to explain the sources. Thus, seed money to the Trust has purportedly come from the family members, who had no proven income in 2005. Transaction from the Trust to A-1 and A-4 are not permitted as per law. Ultimate use of the amount was for the personal benefit of the accused. https://www.mhc.tn.gov.in/judis 15/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
(iii) The first accused was not inducted as a Trustee in a pre-planned manner. Trustees are accountable for any offence committed by the Trust. The calculation of the disproportionate asset as per Statements - A, B, C and D is supported by evidence. Contents of the F.I.R., are only from source informations. After thorough investigation, the disproportionate income was arrived only at Rs.79,17,593/-. The respondent has not blindly accepted the source information that the accused possessed disproportionate assets to the tune of Rs.1,85,04,700/-. It shows that respondent conducted a fair investigation in this case. Inflow of funds from the second son of A-2 and A-3 was only Rs.2,00,000/-. If it is established that the second son was also involved in committing the offence, he can be added as an accused. A-3 and A- 4 had no proven income. It is stated in the sale deed as Rs.50,00,000/-. But, that amount was not reflected in the bank statement. There is no credit for Rs.10,00,000/- on 12.11.2021. When the sale deed was registered on 23.11.2011 in favour of Tmt.Santhakumari, obtaining a sum of Rs.6,00,000/- for furniture on 22.11.2021, is unbelievable.
(iv) In respect of Item No.29 in Statement – C, the receipt of these amounts were not intimated by A-1 to the Department.
(v) Transactions made from the Trust to A-1 and his wife are not permitted by law and it was for the personal benefit of them. No details of income totalling Rs.1,03,50,489/- was furnished by the accused at the time of https://www.mhc.tn.gov.in/judis 16/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 investigation. The valuation of the building and the cost of construction was arrived at by the Valuation Officer of Income Tax Department to Rs.2,78,11,000/-.
(vi) The dispute regarding valuation is triable issue. The income tax details of Tmt.Devaki for the assessment year 2012-2013, was filed only on 20.02.2013, after the registration of the F.I.R. As per the judgment of the Hon'ble Supreme Court of India, in J.Jeyalalitha's case in Stated of Karnataka vs. J.Jayalalitha reported in 2017 (6) SCC 263, income tax returns cannot be relied upon as conclusive proof to show that the income is from a lawful source.
(vii) With regard to sale of property by Tmt.Gomathy, at Gupta Colony, New Delhi, the power of attorney document, dated 11.05.2005 shows that the sale consideration is Rs.5,00,000/- and the same is reflected in the sale agreement. Contrary to this, L.W.45 states that the property was bought by his wife for Rs.9,45,000/-. He also says that as per sale deed, the sale price was Rs.5,00,000/-. The amounts were credited to Mr.Rajamohan and not to Tmt.Gomathy. The payments made to Rajamohan on 23.03.2005 and 05.05.2005 and 6.05.2005 were prior to date of power of attorney and sale agreement, dated 11.05.2005. Those payments are disputed. The claim that these amounts were used for purchase of other properties by Tmt.Devaki is also disputed. This is a disputed and triable issue. https://www.mhc.tn.gov.in/judis 17/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
(viii) As against the sale of house on 23.11.2011 for Rs.40,50,609/- by Shri.Sudhakar, the total consideration shown in the sale deed is Rs.50,00,000/-. Out of this amount a sum of Rs.9,49,391/- was paid to bank of Maharastra for discharge of mortgage loan of vendors. Sum of Rs.21,80,120/- was incurred as expenditure for purchase of the property. This amount has to be subtracted from Rs.40,50,609/-. Two hand loans, Rs.11,33,500/- to Shri.Vijay Rajamohan and Rs.6,00,000/- to Tmt.Devaki have to be deducted. Thus, the remaining amount was only Rs.1,27,989/-. The claim that Rs.6,00,000/- was left out from the income was not correct. Statements of L.Ws.12, 16, 22, 44, 46, 49 and 50 are relevant. The accused in this case have delayed the trial proceedings by repeatedly filing discharge petitions and quash petition. The case is pending for eleven years without any progress.
(ix) This Court in Crl.R.C.No.349 of 2019 found that there are legal materials available to frame charges against the accused. In the said circumstances, the learned Special Public Prosecutor prays for dismissal of these petitions. He relied on the following judgments in support of his submissions:
(i) Crl.A.Nos.1452 -1453 of 2022, dated 05.09.2022(State through Deputy Superintendent of Police v. R.Soundararasu etc.,)
(ii) Asian Resurfacing of Road Agency Private limited https://www.mhc.tn.gov.in/judis 18/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 vs. CBI reported in 2018(16) SCC 299; and
(iii) J.Jeyalalitha's case in Stated of Karnataka vs. J.Jayalalitha reported in 2017 (6) SCC 263.
13. I have considered the rival submissions and perused the records.
14. As per the submissions of the learned Senior Counsel for the petitioner, in Statement -C ie., income and other receipts during the check period 01.01.2005 to 31.10.2012, certain income received by the petitioners Shri.S.Rajamohan and A4-Tmt.Devaki Vijay, have been omitted. The details are given in Serial Nos.24 to 29 of the written arguments of the petitioners. They are as follows:
(Income and other receipt during the check period) Sl. Description Value in Rs. Value in Rs.
No. As per charge Omitted by
sheet respondent
A-2-S.Rajamohan 40,50,609
24. Amount received by cheque
[No.358290, dt. 22.11.2011 by
selling house at 37 E, Park
Dugar, Ramavaram, Chennai – 89
on 23.11.2011 to
Mrs.Shanthakumari(Doc.No.11:S
ale deed & Doc.No.39; Bank
Statement) of Charge Sheet and
LW-9 statement). (Sale deed says
it is Rs.50 lakhs)
10,00,000
25 Amount received through RTGS
https://www.mhc.tn.gov.in/judis
19/55
Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 from Mrs.R.Shanthakumari dated 12.11.2011] for the furnishings and interiors of the house at 37 E, Park Dugar, Ramavaram, Chennai – 89 on 23.11.2011 to Mrs.Shanthakumari. (LW-38 statement and D-41( Sale deed says it is Rs.50 lakhs)
26. Amount received through RTGS 6,00,000 from P.C.Mohanachandran, Husband of Mrs.R.Shanthakumari, dated 22.11.2011] for the furnishings and interiors of the house at 37E, Park Dugar, Ramavaram, Chennai – 89 on 23.11.20211 to Mrs.Shanthakumari. (LW-38 statement & Doc.41)
27. Amounts received from 4,15,781 Sudhakar(younger son of A2 & 1,91,122 secretary of the Trust, who was employed in US at that point of time) in US Dollars mentioned in LW-9 statements.
26.07.2012-US$ 7,500 @ Rs.55.48 = Rs.4,15,781.05 26.07.2012-US$ 3,450 @ Rs.55.45 =Rs.1,91,122.48 (L.W-9's statement at Page No.62 Sl.No.28 and 29 & Doc.39)
28. Other receipts through cheques 5,00,000 mentioned in LW 9 statements 5,00,000 from Sudhakar (younger son of A-
2 and secretary of the trust. 5,00,000 https://www.mhc.tn.gov.in/judis 20/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 21.07.2012 – Rs.5 lakhs.
23.07.2012 – Rs.5 lakhs 23.07.2012 – Rs.5 lakhs (LW-9's statement at Page No:62 Sl.No.25, 26 and 27 and Doc – 35 & 39 A4-Devaki Vijay Interest free security deposit 5,00,000 received for renting out Devaki's
29. 5,00,000 house at NOIDA to the Trus.LW-
12 & LW-14 statements mentions 5,00,000
receipt of this amount through 2,00,000
cheques from the trust. Moreover,
these have been included in the 2,50,000
expenditure of trust & surplus 20,000
amount arrived at in the final
20,000
report/charge sheet.
20,000
(Doc-No.38, Doc-30)
15(i). It is further submitted that income of Tmt.Devaki Vijay for the assessment year 2012-2013 as per the income Tax returns was Rs.6,18,890/-. However, it was wrongly given as Rs.1,60,911/- in Statement – C. Similarly, the income from sale of Flat No.JF-10, Flat No.A-3, Gupta Colony, Kirki Extension, Malviya Nagar, New Delhi in the name of R.Gomathy to Lynette Massey, was Rs.9,45,000/-, but in Statement -C, it was only shown as Rs.8,20,000/-. Against the income received at Rs.2,22,79,027/- during the check period, in Statement -C, the respondent had shown only the income of Rs.1,19,28,538/-. The income of Rs.1,03,50,489/- was omitted.
15(ii). On the expenditure part during the check period, the cost of https://www.mhc.tn.gov.in/judis 21/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 construction of college buildings was shown in excess at Rs.63,62,650/-, based on the valuation report by the Valuation Officer. However, as per the statement of witnesses, the construction cost would not come to Rs.2,78,11,000/-. Rather it would be much less. Rs.20,00,000/- received for purchasing the property on 20.01.2006 at 37-E Park Dugar, Ramavaram, Chennai, was omitted to be included in Statement -D. If the omitted income are included and excess expenditure is excluded, there would be no disproportionate asset, rather there would be surplus savings.
16. As already stated, the learned Special Public Prosecutor countered the submissions of the learned Senior Counsel for the petitioner in Crl.O.P.No.9151 of 2023 and the submissions of the learned counsel for the petitioner in Crl.R.C.Nos.486 and 1388 of 2023, as recorded above.
17. Before going into the merits of the case, it is necessary to find out what are the legal propositions for quashing a criminal case or discharging the accused.
18. The reading of the judgment relied on by the learned Special Public Prosecutor in Crl.A.Nos.1452 -1453 of 2022, dated 05.09.2022(State through Deputy Superintendent of Police v. R.Soundararasu etc.,), shows that at the stage of framing of charges, roving and fishing enquiry is impermissible. The Judgment reported in State of the https://www.mhc.tn.gov.in/judis 22/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 Tamil Nadu by Inspector of Police, Vigilance and Anti-Corruption vs. N.Suresh Rajan and others reported in (2014) 11 SCC 709, was extracted in this judgment, which reads as follows:
“It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
19. Observation made in Paragraph Nos.43 to 46, of the said judgment are relevant, which reads as follows:
https://www.mhc.tn.gov.in/judis 23/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
43. In the case of Central Bureau of Investigation (CBI) and Anr. v. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr., reported in 2021 SCC OnLine SC 923, this Court, after an exhaustive review of its various other decisions, more particularly the decision in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655, held that since the accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the investigating officer before the filing of a chargesheet, a similar right cannot be granted to the accused before the filing of an FIR by making a preliminary inquiry mandatory.
44. The above decision of this Court in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra) is a direct answer to the contention raised on behalf of the accused persons that the investigating officer wrongly declined to consider the explanation offered by the public servant in regard to the allegations and also failed to take into consideration the assets lawfully acquired by his wife.
45. In K. Veeraswami (supra), this Court held thus:-
“75…since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression .for which he cannot satisfactorily account . used in clause(e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation https://www.mhc.tn.gov.in/judis 24/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 and the charge- sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary, he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet.” (Emphasis supplied)
46. The second contention canvassed on behalf of the accused persons that every bit of information in regard to the assets had been intimated to the Income Tax Authorities and the documents in regard to the same should be sufficient to https://www.mhc.tn.gov.in/judis 25/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 exonerate the accused persons from the charges is without any merit. In other words, the contention that the High Court rightly took into consideration the aforesaid for the purpose of discharging the accused persons from the prosecution is without any merit and erroneous more particularly in view of the decision of this Court in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). This Court has observed in paras 58, 60 & 61 resply as under:-
“58. On the other hand, it has been argued on behalf of the appellant that the documents relied upon by the respondents are not unimpeachable and have to be proved at the stage of trial. Hence, it was urged that the arguments made on the basis of these documents should not be accepted by this Court. The appellant has relied upon the judgment of a two Judge Bench of this Court in J. Jayalalitha (supra), where it has been held that documents such as Income Tax Returns cannot be relied upon as conclusive proof to show that the income is from a lawful sourceunder the PC Act. Justice P C Ghose held thus:
“191. Though considerable exchanges had been made in course of the arguments, centering around Section 43 of the Evidence Act, 1872, we are of the comprehension that those need not be expatiated in details. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendered therein are relevant and admissible in evidence as well, nothing as such, turns thereon definitively as those do not furnish any guarantee or authentication of the lawfulness of the source(s) of income, the pith of the charge levelled against the respondents. It is the plea of the defence that the income tax returns and https://www.mhc.tn.gov.in/judis 26/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 orders, while proved by the accused persons had not been objected to by the prosecution and further it (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if such returns and orders are admissible, the probative value would depend on the nature of the information furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the chargesheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act. In Vishwanath Chaturvedi (3) v. Union of India [Vishwanath Chaturvedi (3) v. Union of India, (2007) 4 SCC 380 : (2007) 2 SCC (Cri) 302] , a writ petition was filed under Article 32 of the Constitution of India seeking an appropriate writ for directing the Union of India to take appropriate action to prosecute R-2 to R- 5 under the 1988 Actfor having amassed assets disproportionate to the known sources of income by misusing their power and authority. The respondents were the then https://www.mhc.tn.gov.in/judis 27/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 sitting Chief Minister of U.P. and his relatives. Having noticed that the basic issue was with regard to alleged investments and sources of such investments, Respondents 2 to 5 were ordered by this Court to file copies of income tax and wealth tax returns of the relevant assessment years which was done. It was pointed out on behalf of the petitioner that the net assets of the family though were Rs 9,22,72,000, as per the calculation made by the official valuer, the then value of the net assets came to be Rs 24 crores. It was pleaded on behalf of the respondents that income tax returns had already been filed and the matters were pending before the authorities concerned and all the payments were made by cheques, and thus the allegation levelled against them were baseless. It was observed that the minuteness of the details furnished by the parties and the income tax returns and assessment orders, sale deeds, etc. were necessary to be carefully looked into and analyzed only by an independent agency with the assistance of chartered accountants and other accredited engineers and valuers of the property. It was observed that the Income Tax Department was concerned only with the source of income and whether the tax was paid or not and, therefore, only an independent agency or CBI could, on court direction, determine the question of disproportionate assets. CBI was thus directed to conduct a preliminary enquiry into the assets of all the respondents and to take further action in the matter after scrutinizing as to whether a case was made out or not. This decision is to emphasize that submission of income tax returns and the assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to https://www.mhc.tn.gov.in/judis 28/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 whether the offence as contemplated by the PC Act is made out or not.
60. At the very outset, we must categorically hold that the documents which have been relied upon by the respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents is a matter of trial. Both the parties have cited previous decisions of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in Kedari Lal (supra) and J. Jayalalitha (supra) for two reasons: (i) the judgment in J. Jayalalitha (supra) notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the .source of one‘s income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal (supra) were such that the .source of the income was not in question at all and hence, the Income Tax Returns were relied upon conclusively; and (ii) in any case, the decision in Kedari Lal (supra) was delivered while considering a criminal appeal challenging a conviction under the PC Act, while the present matter is at the stage of quashing of an FIR.
61. In the present case, the appellant is challenging the very .source of the respondents‘ income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the respondents to quash the FIR would be contrary to fundamental principles of law. The High Court has gone far beyond the ambit of its jurisdiction https://www.mhc.tn.gov.in/judis 29/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 by virtually conducting a trial in an effort to absolve the respondents.” (Emphasis supplied)
20. With regard to ambit and scope of discharge, it is relevant to extract Paragraph No.70 to 74 of this judgment:
“70. The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna and others v. State of Bihar and another, (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section
482. It was observed as follows:-
“4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259] the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the https://www.mhc.tn.gov.in/judis 30/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage.
71. In the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, this Court observed and held in paragraph 25 as under:-
“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) “29. … At this stage, probative value of the materials has tobe gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the law does not permit a mini trial at this stage.””
72. The ambit and scope of exercise of power https://www.mhc.tn.gov.in/judis 31/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after
(i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.
73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be “groundless”.
74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the https://www.mhc.tn.gov.in/judis 32/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 accused or foundation for the admissibility of evidence.
Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.
21. In considering the revisional powers at the stage of discharge, it is observed in paragraph Nos.75 to 80 of the said judgment, which read as under:
75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631, this Court held as under:-
"3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are https://www.mhc.tn.gov.in/judis 33/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged.It is conferred to check grave error of law or procedure.
77. This Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, has held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction.
78. The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to discharge the accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No. 2 herein.
79. By accepting the entire evidence put forward by the https://www.mhc.tn.gov.in/judis 34/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as “groundless”. As observed by this Court in C.D.S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.
80. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.
22. When considering the scope of Section 397 and 482 Cr.P.C., in Amit Kapoor v. Ramesh Chander and another reported in (2012) 9 SCC 460, the Hon'ble Supreme Court held as follows:
27. Having discussed the scope of jurisdiction under https://www.mhc.tn.gov.in/judis 35/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1.Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
https://www.mhc.tn.gov.in/judis 36/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justiceand for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient https://www.mhc.tn.gov.in/judis 37/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a fullfledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider therecord and documents annexed with by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the https://www.mhc.tn.gov.in/judis 38/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
23. In State of Haryana v. Bhajan Lal, reported in 1992(Supp(1) SCC 335, certain guidelines are given for invoking the extraordinary power under Article 226 or inherent power under Section 482 Cr.P.C., for quashing of case if certain circumstances are narrated or presented, which reads as follows:
102. 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 https://www.mhc.tn.gov.in/judis 39/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 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 proceeding 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.
https://www.mhc.tn.gov.in/judis 40/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 (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.
24. From these judgments, the important guidelines for quashing of charge sheet are as follows:
(i)The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
(ii) No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
(iii) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
(iv) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the https://www.mhc.tn.gov.in/judis 41/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 documents or records but is an opinion formed prima facie.
25. Important guidelines for considering a discharge petition in corruption cases are as follows:
(i).At the stage of framing of charge, roving and fishing inquiry is impermissible and that would defeat the object of the Code.
(ii).Accused public servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a preliminary inquiry mandatory.
(iii). Income Tax Returns and assessment orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record.
(iv). Income tax returns and the assessments orders would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to whether the offence as https://www.mhc.tn.gov.in/judis 42/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 contemplated by the PC Act is made out or not.
(v). At the stage of framing of charge, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.
(vi).At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.
(vii). The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
(viii).Interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction.
(ix).The legal effect of Section 13(1)(e) is that it is for the https://www.mhc.tn.gov.in/judis 43/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused.
(x). It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.
(xi). If there are triable issues, the Court is not expected to go into the veracity of the rival versions.
26. Only if the case of the accused comes under any of the aforesaid guidelines, quashing or discharge is permitted.
27. Bearing these guidelines in mind, these petitions have to be disposed of on the basis of the submissions of the learned counsel for the https://www.mhc.tn.gov.in/judis 44/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 petitioners and the reply given by the learned Special Public Prosecutor.
28. With respect to the income tax returns of Tmt.Devaki for the assessment year 2012-2013, it is seen that the gross total income was shown as Rs.6,18,888/-. The due date for filing the return was 31.08.2012. This return was filed only on 20.02.2013 ie., after registration of the F.I.R on 20.11.2012.
29. As per the judgment of the Hon'ble Supreme Court in J.Jayalalitha's case's reported in 2017 (6) SCC 263, the income tax returns cannot be relied upon as a conclusive proof to show that income shown was from a lawful source. Especially in this case, income tax return was filed after the registration of the F.I.R. Whether the income shown in the income tax return for the year 2012-2013, can be taken as income from lawful source or not, is a matter to be decided only on the basis of the evidence to be recorded.
30. As regards the omission to show Rs.9,45,000/- as sale price received by Tmt.R.Gomathy, it is seen from Document No.27, bank passbook of Tmt.Lynette Massey that following sums have been paid to the petitioner Rajamohan. Rs.15,000/- on 23.03.2005, Rs.4,30,000/- on 05.05.2005 and Rs.5,00,000/- on 06.05.2005. It is the case of the accused that Flat No.JF-10, Flat No.A-3, Gupta Colony, Kirki Extension, Malviya Nagar, New Delhi, in the https://www.mhc.tn.gov.in/judis 45/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 name of Tmt.R.Gomathy was sold to Tmt.Lynette Massey. The Power of Attorney deed and sale agreement in respect of this property had been executed on 11.05.2005. But, the payments were made prior to the execution of Power of Attorney deed and sale agreement on 11.05.2005. The payments were not made to Tmt.R.Gomathy but was made to Shri.Rajamohan/A-2. In the power of attorney deed and the sale agreement, the sale consideration of the property was shown only as Rs.5,00,000/-. But, the property is said to have been sold for Rs.9,45,000/-. In the light of the obvious contradiction with regard to sale price and the recipient of sale price, there arises suspicion with regard to the receipt of sale price by Tmt.R.Gomathy and as to whether this amount was utilised by her for the purchase of other properties. L.W.16's statement shows that out of the sale proceeds of Rs.9,45,000/- received by Shri.Rajamohan, he transferred Rs.5,00,000/- to the Trust account and withdrew Rs.4,30,000/- on various dates. Thus, this is doubtful that this amount was utilised for purchasing other properties by Tmt.R.Gomathy/A-3. This contradiction and suspicion can be resolved only during the trial by examining the concerned witnesses.
31. As for, Serial Nos.24 to 28, amounts said to have been received by Shri.Rajamohan/A-2, one through sale of house at 37-E, Park Dugar, Ramapuram to Tmt.Santhakumari; then for the furnishings and interiors from Tmt.R.Santhakumari and her husband Shri.P.C.Mohanachandran; and for amounts, received from Shri.Sudhakar, son of the petitioner, the learned https://www.mhc.tn.gov.in/judis 46/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 Senior Counsel for the petitioner/A-2 relied on the document Nos.11, 30, 35, 38, 39 and statement of witnesses L.Ws.9, 38, 41.
32. It is the submissions of the learned Special Public Prosecutor that the alleged payments of Rs.10,00,000/- and Rs.6,00,000/- towards furnishings and interiors, when the property was sold for Rs.50,00,000/- is doubtful. Truth or falsity of this payment has to be tested only during the trial. Though the amounts referred in Serial Nos.27, 28 are said to have been received by Shri.Rajamohan/A-2 from his second son Shri.Sudhakar, these amounts were received during the fag end of the check period ie., during July, 2012. A genuine doubt arises as to what is the need for sending such huge amounts to Shri.Rajamohan by his second son within the span of six days. However, it is for the accused to prove the relevancy of these payments at the time of trial.
33. It is the submissions of learned Special Public Prosecutor that the house at 37-E, Park Dugar, Ramavaram, Chennai, was purchased on 20.01.2006 through Document No.10 by Shri.R.Sudhakaran and Shri.Rajamohan and sold through Document No.11 for Rs.50,00,000/- on 23.11.2011. The sale consideration of Rs.20,00,000/- plus registration charge of Rs.20,120/-, stamp duty of Rs.1,60,000/- totalling a sum of Rs.21,80,120/- have to be deducted from Rs.40,50,609/-. Two hand loans of Rs.11,33,500/- and Rs.6,00,000/- given to A-1 and A-4 should also be deducted. If at all any amount has to be included, only a sum of Rs.1,77,989/- alone has to be https://www.mhc.tn.gov.in/judis 47/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 included. Both the sale transactions had taken place during the check period. It is for the accused to explain the source for purchasing this property on 20.01.2006.
34. Serial No.29 of written arguments deals with the amounts received by A-4-Tmt.Devaki Vijay. It is claimed that these amounts had been received for renting out Tmt.Devaki's house at Noida to the Trust. It is also claimed that these amounts had been entered in the accounts of the Trust.
35. The contention of the learned Special Public Prosecutor with regard to these amounts is that the alleged renting of Tmt.Devaki's house at Noida and receipt of security deposits and renting is nothing but a dubious transaction. If the Trust wanted to have a building at Noida, it could have purchased a building on its own or rented some other building. It is not necessary to purchase the building in the name of Tmt.Devaki and then, rent it out to the Trust. This transaction strengthens the case of the prosecution that the accused had found a novel way for laundering the ill gotten money. Immediately after receipt of these amounts, A4-Tmt.Devaki Vijay had withdrawn this amount on 15.02.2011, obviously for personal use. The transfer of Trust money to A-1 and A-4 is not legally permissible and it is a questionable transaction. Transfer of Rs.9,50,000/- to first accused and Rs.17.25 lakhs to the fourth accused from the Trust fund is dubious-cum- questionable transactions and not permitted under law. https://www.mhc.tn.gov.in/judis 48/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023
36. As per the valuation of Nagai college buildings, the Valuation Officer of Income Tax Department assessed the value on the basis of plinth area method at Rs.2,78,11,000/-. It is the submission of the learned senior counsel for the petitioner/A-2 that as per the statement of L.W.16-Shri.Pandurangan, the cost of construction of Nagai College of Education and Nagai Teacher Training Institute comes to Rs.1,11,60,039/-. The fair value as per CPWD report at Rs.2,78,11,000/- is not acceptable. Statement of L.W.17-Pandarinathan is relied on to show that he paid a sum of Rs.3,00,000/- as advance to Shri.Rajamohan from April to May, 2006 for constructing Educational Institution at Nagapattinam. L.W.17 also stated that he was associated with the design and execution of the college building, supply of labourer from the beginning to end. According to him, the total cost of construction would be approximately Rs.85,00,000/-. Apparently there is a stark difference in the valuation report relied on by the prosecution and the statements of aforesaid witnesses with regard to the value of the cost of construction. It is a disputed fact and required to be examined through evidence.
37. It is seen from the final report filed in this case that the income of the College had been assessed till 2007-2008 and the Trust failed to file Income Tax returns thereafter. Except the first accused, other accused had no independent income. Of course, petitioner Rajamohan had pension income. The first accused had received Rs.11,35,500/- as hand loan and the fourth accused received Rs.6,00,000/- as hand loan from Shri.Sudhakar. It is not https://www.mhc.tn.gov.in/judis 49/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 known whether any prior permission was obtained from the Government or whether it was informed to the Government. Similarly, the fourth accused Tmt.Devaki Vijay received Rs.5,00,000/- from her father and brother. It is not known whether the first accused got permission for receiving this amount as hand loan or whether he informed the receipt of this hand loans to his Department. For the purchase of Flat worths Rs.94,96,900/- allotted to A4-Tmt.Devaki Vijay, a sum of Rs.20,00,000/- was paid from the Trust fund. This transaction was not intimated to the Department by the first accused. A sum of Rs.6,00,000/- was received by A-1 on 21.07.2008 and a sum of Rs.3,05,000/- was received on 13.01.2010 from Trust fund. Transfer of Trust fund by Shri.Rajamohan/A-2 in favour of A-1 and A-4 is not permissible in law. These transactions show that Trust funds were used for personal purposes. Statement of Shri.K.Palamalainathan, shows that sum of Rs.7,90,000/- alleged to have been received from Smt.P.Renuka, is not reflected in her I.T returns for assessment year 2006-2007. Statement of Shri.V.Sadagopan shows that Shri.Sudhakar contributed only Rs.2,00,000/- during financial year 2005 – 2006 to the Trust and the Trust suppressed the actual deposit of Rs.15,00,000/- and source for deposit of Rs.5,00,000/-. Certain incomes alleged to have been omitted by the prosecution and excessive expenses allegedly shown, according to the case of petitioners in the final report, are disputed by the prosecution. Truth or falsity of disputed fact cannot be considered in a quash or discharge proceedings. Trust and other Trustees, can be added as accused under Section 319 Cr.P.C., if any https://www.mhc.tn.gov.in/judis 50/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 incriminating evidence is given against it/them during the course of trial.
38. Concerning the submissions of the learned Senior Counsel appearing for the petitioner in Crl.O.P.No.9151 of 2023 that report of the Valuation Officer cannot be accepted, he drew reference to the judgment in Amiya Bala Paul v. Commissioner of Income Tax reported in (2003) 6 Supreme Court Case 342. In the said judgment, it is observed that a Valuation Officer appointed under the Wealth Tax Act can discharge functions within the statutory limits under which he is appointed. It is not open to a Valuation Officer to act in his capacity as Valuation Officer otherwise than in discharge of his statutory functions. He cannot be called upon nor would he have the jurisdiction to give a report to the Assessing Officer under the Income Tax Act except when a reference is made under and in terms of Section 55-A or to a competent authority except under Section 269-L.
39. The aforesaid judgment dealt with the power of Assessing Officer to refer a matter to the Valuation Officer under Section 55-A of the Income Tax Act and Section 131(1) of the Act read with Order 26 Rule 9 of the CPC. Both have distinct consequences. The issue involved in that case was on the reference made by the Income Tax Authority to the Valuation Officer when a doubt was entertained with regard to the value provided by the Assessee for the capital asset. In the case on hand, the Investigating Officer wanted to have a fair assessment of the costs of construction of the college building through https://www.mhc.tn.gov.in/judis 51/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 Valuation Officer. In the facts and circumstances of the case, this approach cannot be faulted.
40. In the case before hand, we have the valuation report(Document No.50) given by the valuation Officer of the Income Tax Department, with regard to the cost of construction of buildings of Nagai College of Education and the value projected through statement of witnesses. There is difference in the valuation with regard to costs of construction of the buildings in the valuation report of the Valuation Officer and in the statement of witnesses. This is a disputed fact and it would have to be decided only at the time of trial. Therefore, at this juncture, this judgment cannot be relied to negate the valuation report.
41. From the consideration of the submissions and materials produced, it is seen that there are many questionable monetary transactions between the Trust and the accused. The claim with regard to source of fund by the petitioners is disputed by the respondent. It is settled proposition of law that the disputed and triable issues cannot be dealt in a petition filed under Section 482 Cr.P.C.
42. It is also relevant to note here that the discharge petition filed by the first accused though was allowed by the trial Court in Crl.M.P.No.3908 of 2018 in C.C.No.3 of 2018, that was set aside the by this Court in https://www.mhc.tn.gov.in/judis 52/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 Crl.R.C.No.349 of 2019 and confirmed by the Hon'ble Supreme Court in SLP.(criminal) 1568 of 2022. Though the discharge petition was filed on the ground of challenging the sanction accorded, this Court on going through the materials, found that the probative value of the transaction cannot be looked into at this stage, however, the materials placed on record, give rise to the strong suspicion with regard to the above transactions, which is sufficient to frame charges.
43. In the case before hand, it is an admitted position that the charges have been framed against the accused. The Hon'ble Supreme Court of India, in Asian Resurfacing of Road Agency Private limited vs. CBI reported in 2018(16) SCC 299, held that interference in the order framing charges or refusing to discharge, is called for in rarest of rare cases only to correct the patent error of jurisdiction.
44. Considering the incriminating materials produced in the form of documentary evidence and statement of witnesses, against the petitioners/accused, this Court finds that a proper trial is required for giving opportunity to the prosecution to prove its case and to the accused to counter the case of the prosecution.
45. As already stated, charges have already been framed against the accused. Therefore, this Court is of the considered view that quashing of final https://www.mhc.tn.gov.in/judis 53/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 report prayed for in Crl.O.P.No.9151 of 2023 and discharging of accused prayed in Crl.R.C.Nos.486 and 1388 of 2023, cannot be entertained. Dismissal of discharge petitions filed by petitioner in Crl.R.C.No.486 of 2023 and Crl.R.C.No.1388 of 2023, are confirmed.
46. In this view of the matter, all these petitions are dismissed. Consequently, connected miscellaneous petitions are closed.
18.10.2023 pm Index:Yes/No NCC:Yes/No Speaking Order/Non Speaking Order To,
1.The Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai.
2.The Inspector of Police, SPE/CBI/ACB, Chennai.
3.The Public Prosecutor, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis 54/55 Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 G.CHANDRASEKHARAN, J.
pm Crl.O.P.No.9151 of 2023 and Crl.RC.Nos.486 and 1388 of 2023 18.10.2023 https://www.mhc.tn.gov.in/judis 55/55