Madras High Court
K.Sankaranarayanan vs Special Police Establishment on 3 December, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/12/2008 CORAM THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.699 of 1997 K.Sankaranarayanan ... Appellant / Accused Vs. Special Police Establishment CBI, Madras, R.C.No.13(A)/1991 ... Respondent / Complainant Prayer This appeal has been preferred under Section 374(2) Cr.P.C., against the Judgment dated 26.8.1997 in S.C.No.1 of 1995 on the file of the Special Court of CBI cases, Madurai. !For Appellant ... Mr.K.S.Ramachandran, Advocate ^For Respondent ... Mr.S.Rozario Sundarraj, Special Public Prosecutor for CBI **** :JUDGMENT
This appeal has been directed against the Judgment in S.C.No.1 of 1995 on the file of the Special Court for CBI Cases, Madurai. The accused / appellant was an Accountant of State Bank of India, Tuticorin Branch, during the relevant point of time. For the misdeeds he had committed in the Bank Administration a complaint was lodged by the Deputy General Manager, Vigilance State Bank of India, Local Head Office, Madurai, on the basis of which Ex.P.87 FIR was registered by CBI. On the basis of the permission Ex.P.88, of the CMM Egmore, Madras, the Sub-Inspector of Police CBI was permitted to investigate the case under Section 17 of the Prevention of Corruption Act and a charge sheet was laid against the accused. There were about 12 cases filed against the accused under C.C.No.205 of 1992 to 215 of 1992. The CBI filed charge sheet in the above said cases before the I Additional Sessions Judge / Special Judge for CBI cases Madras, who had framed specific charges under Section 419, 420, 467, 471, 477(A) IPC and under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. All the above said CCs were coupled together and assigned SCC.No.1 of 1995 by the Special Court for CBI cases, Madurai for trial. Before the commencement of the trial copies under Section 207 of Cr.P.C., were furnished to the accused and when charges under Section 419, 420, 467, 471, 477(A) IPC and under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, were explained to the accused and when questioned the accused pleaded not guilty for are the specific charges levelled against him under each CC.Nos.205 to 216 of 1992.
2.Before the trial Court P.W.1 to P.W.31 were examined. Ex.P.1 to Ex.P.88 were marked. When questioned under Section 313 of Cr.P.C., the accused would state that these cases have been foisted against him and that he had witnesses on his side. But no witnesses on the side of the accused were examined. But Ex.D.1 to Ex.D.3 were marked on the side of the accused.
3.P.W.1 is the then Chief General Manager, State Bank of India, Madras, who had accorded sanction for prosecution against the accused under Ex.P.1. According to him, he had received a report from CBI and after perusing the report and connected records, had issued the sanction for prosecution under Ex.P.2 against the accused and that as per Ex.P.1-circular of the State Bank of India, he is the competent authority to take action against the accused.
4.P.W.2 is the then Officer of the State Bank of India, who had worked as the Branch Manager in the State Bank of India Tuticorin Branch from 1987 to 1990 and retired from service on 31.5.1994. He speaks about the power of the accused, who was working as an Accountant in SBI, Tuticorin Branch. He has deposed that he is not aware who had opened the account for Balan & Co, in Tuticorin Branch.
5.P.W.3 is a customer of the State Bank of India, Tuticorin Branch. According to him, he is running a diesel pump service mechanic shop in the name of Annai Diesel Pump Service at Tuticoin from 1985 and that he had borrowed Rs.75,000/- from SBI, Tuticorin Branch and that he knows the accused, who was the Accountant of SBI, Tuticorin Branch and his current Account number is 2451 and that the accused had approached him for the purpose of opening an account in the name of Balan & Co and he had requested to sign in the column, introducer in the form for opening current account for Balan & Co. As per the request of the accused, he (P.W.3) had signed as introducer for Balan & Co., in the relevant form for opening current account on 11.1.1986. Ex.P.3 is the form for opening current account in which he has signed as an introducer.
6.P.W.4 would depose that he had worked as an Assistant in the State Bank of India, Tuticorin Branch, during 1986-87 and that the accused was working as an Accountant of the same branch and that Ex.P.4 is the Transfer Scroll maintained in SBI, Tuticorin Branch and Ex.P.5 is the credit voucher for current Account No.3810 for Rs.7,000/-. He would depose that as per the instructions of the accused he had made the relevant entries at Sl.No.31 in Ex.P.5.
7.P.W.5 is the Clerk of SBI, Tuticorin Branch. According to him, he was working in that branch during 1986-87. According to him, for Account No.3810 relating to Balan & Co., in the ledger sheet -Ex.P.6 he had made credit entries for Rs.5,000/- on 3.5.1986 and that in Ex.P.4 a sum of Rs.5,000/- was debited from the account of STTR and the same was credited in the account of Balan & Co., and that the said entry Ex.P.4 was made by him at the instance of the accused.
8.P.W.6 is also an Assistant of SBI, Tuticorin Branch. According to him, Ex.P.9 is the cheque dated 11.1.1986 for Rs.3,000/- relating to the current Account NO.3810, but it does not contain the seal of 'Balan & Co.,'. Ex.P.10 is the Day Book maintained by the State Bank of India, Tuticorin Branch and that he is well acquainted with the handwring, initial and signatures of the accused, who was also working in the same branch of SBI. According to him, in Ex.P.10 the entry dated 11.1.1986 for Rs.3,000/- against 'Balan & Co.,' was made by him and the corresponding Day Book entry dated 1.2.1986 was also made by him and that Ex.P.9 dated 11.1.1986 is the cheque for Rs.3,000/- and Ex.P.11 is the entry in the Day Book for the receipt of cheque for Rs.4,000/- dated 1.2.1986 and that in Ex.P.11, token entry was entered into by the accused. He would admit that the entry dated 8.3.1986 in Sheet No.4 of the Day Book was made by him and that he is not aware who had produced Ex.P.11 in the Bank. According to him, the credit entry for Rs.25,000/- and debit entry for Rs.77/50 in the Day Book - Ex.P.10 was entered by him.
9.P.W.7 is the then Field Officer of SBI, Tuticorin Branch during 1987-90. According to him, from February-1987 to July 1990 he was working as a Filed Officer in SBI, Tuticorin Devision and at that time the accused was working as an Accountant in SBI, Tuticorin Branch, and that he had audited Ex.P.10-day book on 27.2.1987 and he had checked Ex.P.10 and the credit entry for Rs.4,06,827.81 and the debit entry for Rs.58,803.65 in Ex.P.10 were entered by him. After his entry, the credit entry was corrected as Rs.4,42,827.81 and the debit entry was noted as Rs.58,803.65 and due to that a sum of Rs.36,000/- was shown as the balance of credit and the said correction was made by the accused. He has further deposed that in Account No.3852 a sum of Rs.36,000/- was credited under the account relating to PSTS.Divyarathinam & Sons, but the said entry was not there while he conducted the check, but the said corrections were made only by the accused subsequently.
10.P.W.8 is the then Personal Bank Divisional Manager from 17.9.1984 to 15.07.1987 in SBI, Tuticorin Branch, and thereafter, he was also working in the same branch as Divisional Manager. According to him, he knows the accused who was working as an Accountant in the same branch and that he knows his signature and handwritings very well and that the accused was empowered to start a new account and also current account and that the prescribed form for opening those accounts can also be prepared by the Accountant / accused, and that after the opening of the account, the entire file will be given to the Branch Manager for authentication and thereafter, it will be sent to the Ledger Keeper and thereafter, the same will be sent to the Bill Accountant and from him it will be sent to Checking Officer, who will initial on the said file. According to him, Ex.P.3 is the form for opening an account under which the accused had opened an account in the name of Balan & Co., and the accused had submitted the same to him. If any cheque book was issued to the current account holder, the said fact will be reflected in the ledger and also in the ledger sheet and those customers who have closed the accounts will return the unused cheque leaves to the bank and that he used to initial in the cheques and credit vouchers, which were forwarded to him by the accountant. According to him, he had not received the credit voucher Ex.P.12 for Rs.3,200/- dated 11.1.1986 relating to Balan & Co.,. Ex.P.13 is the debit voucher relating to Ex.P.12. According to him, he has not signed in Ex.P.5, to which Ex.P.14 - debit voucher relates. According to him, he has not signed in Ex.P.7 to which Ex.P.8 - debit voucher relates. According to him, the credit voucher for Rs.36,000/- dated 27.2.1987 relates to Account No.3852 was not placed before him and he has not passed the said credit voucher.
11.P.W.9 is the Cashier of the State Bank of India, Tuticorin Branch, who knows about the accused, who was working as an Accountant in the same branch. According to P.W.9, he is very familiar with the handwriting of the accused. Ex.P.15 - cheque was passed by the accused and the amount was disbursed by him after making necessary entries in the payment register. As per Ex.P.16 entries he had disbursed Rs.5,000/- to Balan & Co.
12.P.W.10 is an Assistant of the State Bank of India, Tuticorin Branch. On 26.10.1987 he was working in the Transfer Scrollsection Section. Ex.P.17 is the transfer scroll written by him. According to him, he is well acquainted with the handwriting and signature of the accused. In Ex.P.17 closing balance amount was Rs.5,69,277.60, but the same was corrected by adding Rs.35,225/-. The said account was relating to the P.S.T.S. The said correction was made by the accused and the closing balance was written as RS.6,04,727.60 by the accused.
13.P.W.11 was working in SBI, Tuticorin Branch, in Transfer Scroll Section during 1987. Ex.P.18 is the transfer scroll written by him. In Ex.P.18 one Elangai Arasu had written the last three entries. P.W.11 is very conversant with the signature of the accused. Ex.P.19 is the Day Book entry dated 26.10.1987 entered by him (P.W.11). As per the said entry a sum of Rs.35,225/- was credited in the account of P.S.T.S by one Subramanian on 23.12.1987. He had made Ex.P.20 day book entry upto A/c.No.3915. In Ex.P.20 the last four entries for Rs.2 lakhs, Rs.30,000/-, Rs.65,000/- and Rs.5,000/- were made by the accused and the fourth entry is relating to Balan & Co.,
14.P.W.12 is the then Cashier of SBI, Tuticorin Branch. According to him, the accused was working in the same branch as Accountant during the relevant period and that on 2.5.1987 he had disbursed Rs.10,000/- under Ex.P.23- cheque in favour of Balan & Co., and the said cheque amount of Rs.10,000/- was realised by one Biramanayagam and that the accused had signed for passing the said cheque. Ex.P.24 is the entry in the payment scroll register. He would further admit that a sum of Rs.5,000/- was paid under Ex.P.24 in the name of Balan & Co., and that the accused had signed for passing of the said cheque also. Ex.P.26 is the scroll entry for disbursement of the amount under Ex.P.25.
15.P.W.13 is the then Assistant of SBI, Tuticorin Branch during 1982-86. According to him, the accused was working in that branch as an Accountant during the relevant period and in the Day Book he would admit that upto the entry for Sl.No.3837 was made by him and the subsequent entry below the entry for Sl.No.3837 in the said day book register was made by the accused, who had scored out the total amount and added Rs.5,000/- to the total amount.
16.P.W.14 is the Typist of the State Bank of India, Tuticorin Branch. P.W.14 would admit that Ex.P.28 is the Transfer Scroll for 31.3.1981 written by him. He would admit that the total amount under Ex.P.28 comes to Rs.2,54,68,163.04. Below the said entry he had made an entry for Rs.55,000/- and the said corrected entry was entered by him only at the instance of the accused. But there was no voucher for the said entry.
17.P.W.15 is the then Cashier of SBI, Tuticorin Branch. According to him, as per Ex.P.29-cheque he had disbursed Rs.3,050/- to one Gopalan and the said cheque was in favour of Balan & Co., which was passed by the accused under Ex.P.29. Ex.P.30 is the entry in the Scroll register for Ex.P.29 cheque amount.
18.P.W.16 is the Assistant of SBI, Tuticorin Branch. According to him, debit voucher dated 23.3.1989 was prepared by him in favour of Balan for a sum of Rs.35,000/-. He would further admit that the credit voucher for the said debit voucher was also prepared by him and they are Ex.P.32 & Ex.P.33 respectively. According to P.W.16, both Exs.P.32 & 33 were prepared only at the instance of the accused. Ex.P.34 is the TTRR Register dated 31.3.1989 and that in Ex.P.34, the entry for Rs.55,000/- in TTRR No.494 dated 31.3.1989 was made by the accused and that the accused had endorsed for the disbursement of the said amount on 29.06.1989. Ex.P.35 is the said entry. He would further depose that at the instance of the accused he had written STP Pulanur in Ex.P.35.
19.P.W.17 is the then Assistant of SBI, Tuticorin Branch. According to him, he is well acquainted with the handwriting and signature of the accused. The Day Book entry dated 26.2.1988 was entered by him up to current Account No.3924. As per the said entry, the total amount in the credit is shown as Rs.80,311.98 and a sum of Rs.15,000/- was shown towards debit entry. But the total amount was scored out and rewritten as Rs.95,311.98 by the accused and the said correction was made in the account relating to one Dhanabalan. According to him, Day Book was written by him only on 27.02.1988. According to him, after his entry the accused had made a debit entry to the tune of Rs.7,500/- in the account of Dhanabalan. The account for 27.2.1988 the accused had mentioned total amount as Rs.2,37,462.88 after scoring out the total sum of Rs.2,50,002.88. The Day Book entries for 26.2.1988 and 27.2.1988 are Ex.P.36 & 37 respectively.
20.P.W.18 is the then clerk of SBI, Tuticorin Branch during the relevant period. According to him, Ex.P.38 transfer scroll dated 23.12.1987 was written by him. The debit voucher for the 54th entry in Ex.P.38 for Rs.15,000/- is Ex.P.39. Ex.P.40 is the voucher for Rs.15,000/- for credit entry No.67. He would further depose that Ex.P.39 & Ex.P.40 were written by the accused and the relevant entries were made in Ex.P.38 in respect of Ex.P.39 & Ex.P.40 only at the instance of the accused.
21.P.W.19 is the then Cashier of SBI, Tuticorin Branch. According to him, Ex.P.41 is the payment cashier scroll for 27.2.1988 and as per Ex.P.41 entry a sum of Rs.7,500/- was disbursed to Balan & Co. According to him, on 27.2.1988 the accused was the Passing Officer of SBI, Tuticorin Branch and as per the instructions of the accused he had disbursed the payment.
22.P.W.20 is the then Assistant of SBI, Tuticorin Branch. According to him, during the relevant period the accused was working as an Accountant of SBI, Tuticorin Branch. According to him, Ex.P.42-Day Book entry was made by him and as per Ex.P.42 the total debit entries of the bank comes to Rs.28,208.18 and the total credit of the bank was Rs.3,83,493.61. Below the said credit entry the accused had written. The day book for 23.3.1989 was written by him, which is Ex.P.43. As per Ex.P.43 the debit entries for that day comes to Rs.62,631.42 and the credit for that day comes to Rs.6,91,321.30. In Ex.P.43 at the expenditure column the accused had entered Rs.35,000/- against Balan & Co. According to him, the accused had also rewritten the expenditure account as Rs.97,631.42 and signed. According to him, Ex.P.44 entry was also made in the Day Book for 31.3.1989 by him and as per the entry the expenditure amount is Rs.1,93,039.70 and the credit comes to Rs.6,77,372.21. Below those entries the accused had written as C1 & C2 and has entered Rs.1,93,251.70 in the expenditure column and has entered Rs.55,000/- in the credit column. Ex.P.44 dated 18.7.1989 was written by him (P.W.20). In Ex.P.45 the accused has entered Rs.55,000/- as transfer in his own hand writing.
23.P.W.21 is the then Cashier of SBI, Tuticorin Branch for the period from 1985 to 1992. On 22.10.1988 Ex.P.46 - account was entered by him and as per the entry No.33 in Ex.P.46 a sum of Rs.5,000/- was disbursed in the name of Balan & Co., on 22.10.1988 under Ex.P.47-cheque. The said cheque was passed by the accused.
24.P.W.22 is the Manager of P.S.P.S.Diraviya Rathinam & Sons, which is indulged in export and import business. Account no.3852 is relating to P.S.P.S.Diraviya Rathinam & Sons. Ex.P.48 is the account register maintained by P.S.P.S.Diraviya Rathinam & Sons. According to P.W.22, there is no clearance entry for a sum of Rs.36,000/- for the transfer of account from Canara Bank, Madurai to SBI Tuticorin Branch. There is no corresponding entry found on 26.10.1987 in the account book maintained at SBI, Tuticorin Branch for the transfer of Rs.35,225/-. There is no corresponding entries in Ex.P.48 for the above said transaction.
25.P.W.23 is the Chief Manager of SBI, Virudunagar Branch. During July 1990 he was working as the Manager in Small Scale Industries Branch of SBI, Tuticorin Branch. He speaks about the procedures to be followed for opening a current Account in Small Scales Industries Branch of the bank. Ex.P.49 is the progressing balance account maintained in Small Scales Industries Branch of SBI, Tuticorin Branch. The said progressing balance and current account were checked by the accountant once in a week.
26.P.W.24 is the then Clerk of SBI, Tuticorin Branch. He worked as a Messenger upto 1971. Thereafter, in the year 1981 he became clerk in SBI, Tuticorin Branch. Ex.P.50 daily entry for 27.2.1987, was entered by him in Ex.P.51 - register. On 27.2.1987 a sum of Rs.36,000/- was credited in the account of the Diraviya Rathinam & Sons. According to him, the accused was working in the said branch as an Accountant and a sum of Rs.36,000/- was credited in Ex.P.51 without any advice for the same. Ex.P.52 is the entry dated 2.5.1987 made by him. As per the 15th entry in Ex.P.52 a sum of Rs.10,000/- was debited in the account of Balan & Co. and a sum of Rs.1,39,996/- was the balance available in the account of Balan & Co., on the said date. In Ex.P.52, P.W.24 has entered the balance as Rs.80,741.55, which was credited by the accused. Without any advice in the current account in Ex.P.53 a sum of Rs.15,000/- was shown in the debit account only as per the instructions of the accused. The said sum of Rs.15,000/- was debited in the account of Dhanapalan. Ex.P.54 is the debit voucher. Ex.P.55 is the voucher for having credited the said sum of Rs.15,000/- in STTR Account. According to him, both Ex.P.54 & Ex.P.55 were prepared at the instance of the accused.
27.P.W.25 is the husband of the proprietarix of the Vetrivel Timpers, Tuticorin. The account number for the said Company in the SBI, Tuticorin Branch was 3906, which was maintained by him. Ex.P.56 is the ledger maintained for the transaction of the said company in SBI, Tuticorin Branch. According to him, on 31.3.1989 he had not deposited any draft or cheque for Rs.55,000/- from Otanchathiram Branch in SBI, Tuticorin Branch. Ex.P.57 is the statement of account furnished by SBI, Tuticorin Branch for March-1989. Ex.P.58 is the ledger extract dated 31.3.1989 maintained in the bank. There is no entry in Ex.P.57 for having deposited Rs.55,000/- in the Bank in March-1989. According to him, he has not withdrawn any amount from the SBI, Tuticorin Branch.
28.P.W.26 is the Proprietor of Sagayamatha Charters, Tuticorin. The account No.3402 is the account number for the said company maintained in SBI, Tuticorin Branch. Ex.P.59 is the statement of account in July-1988 furnihsed by SBI, Tuticorin Branch. As per the entries in Ex.P.59 dated 8.7.1989 a sum of Rs.5,000/- is said to have been debited. Ex.P.60 is a separate account maintained by Sagayamatha Charters. On 8.7.1989 there was no entry in Ex.P.60 for having withdrawn Rs.5,000/- from SBI, Tuticorin Branch. After comparing with Ex.P.59-entry with that of the entry in Ex.P.60, he came to know that a sum of Rs.5,000/- was not taken on 8.7.1989 from SBI, Tuticorin Branch. Hence, he preferred a complaint to the Bank Manager. The Bank Manager gave an assurance to rectify the said mistake. He had handedover Ex.P.59 & Ex.P.60 to the Investigating Officer.
29.P.W.27 is the Proprietor of an Ice company at Tuticorin. He was maintaining current Account No.3894 in SBI, Tuticorin Branch from 1987. Ex.P.61 is the monthly account slip furnished by the said bank. According to him, he has not drawn any cheque dated 18.9.1987 for a sum of Rs.35,500/- under cheque No.112 and that on 3.10.1987 he had not credited any amount in his account.
30.Ex.P.28 is the Branch Manager of SBI, Tirunelveli Branch. According to him, he was working as the Branch Manager of SBI, Tuticorin Branch from 1990-92, and the accused was working as an Accountant of SBI, Tuticorin Branch for the year 1980-87. He speaks about the procedures for opening a current account. According to him, on 11.1.1986 a current account was opened in the name of Balan & Co., by depositing Rs.100/-. The payment challan under Ex.P.62 was prepared by the accused. The entries in the ledgers, STRR Accounts were made only by the accused. Ex.P.63 to Ex.P.72 are the cheques for withdrawal of amount from Balan & Co.. Ex.P.73 is the voucher for having deducted Rs.55,000/- from TTRR Account and credited in the account of Balan & Co. Ex.P.74 is the voucher for having deducted the same amount of Rs.55,000/- from purchase account of TTRR account. As per Ex.P.75 voucher the said amount of Rs.55,000/- was once again debited from the branch clearance account and credited in TTRR account by the accused. As per Ex.P.76 voucher the said amount of Rs.55,000/- was given credit to in TTRR account on 29.6.1989. Ex.P.63 to Ex.P.72-cheques were drawn by the accused. Ex.P.77 is the register maintained in SBI, Tuticorin Branch for the cheque received in the Bank. Ex.P.63 to Ex.P.72 are the loose cheque leafs. According to him, the accused had misappropriated a sum of Rs.1,41,200/- in the SBI, Tuticorin Branch. During March-1986, the accused had misappropriated a sum of Rs.10,200/- in February-1987 he had misappropriated a sum of Rs.36,000/- and in October-1987 he had misappropriated a sum of Rs.35,000/-, in January-1989 he had misappropriated a sum of Rs.55,000/- and in July-1989 he had misappropriated a sum of Rs.5,000/-.
31.P.W.29 is the then Chief Manager of SBI, Karaikudi Branch. During 1990 he was working as a Development Officer for Madurai Regional zone. As per the directions of the Regional Manager in the year 1990, he had proceeded to Tirunelveli to enquire into the allegation of misappropriation of funds by the accused at SBI, Tuticorin Branch and enquired the accused. Along with him one Eswaramoorthy and Venkatakrishnan employees of SBI also accompanied him. At the request of the accused, the enquiry was conducted at Barani Hotel, Tirunelveli, where the accused gave a confession statement, which was reduced to writting by Venkatakrishnan as narrated by the accused. The confession statement of the accused is Ex.P.82, in which he (P.W.29) and Eswaramoorthy have signed.
32.P.W.30 is the Handwriting Expert, who had examined the disputed signatures of the accused in the disputed documents Q1 to Q46, Q3/1, 5/1, 6/1, 7/1, 8/1, 10/1, 12/1, 13/1, 14/1, 16/1, 18/1, 20/1, 22/1, 24/1, 26/1, 27/1, 29/1, 30/1, 33/1, 35/1, 37/1, 39/1, 40/1, 41/1, 43/1 and 45/1, which are Ex.P.62, 9, 12, 14, 5, 11, 63, 8, 7, 72, 64, 29, 65, 66, 67, 68, 31, 23, 15, 69, 70, 40, 39, 25, 47, 71 and 75, with that of the admitted signatures of the accused in S.No.1 to S.No.31, which are Ex.P.84(series). His opinion is Ex.P.85 and his report is Ex.P.86.
33.Ex.P.31 is the Investigating Officer. According to him, FIR-Ex.P.87 was registered by the Inspector Mr.Sankar of CBI, Chennai, against the accused under Section 420, 467, 468, 471, 477(A) IPC and under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Ex.P.87 is the FIR. Ex.P.88 is the permission given by CMM for investigation. He had examined the witnesses and recorded their statements and collected the sample signatures from the accused and sent the same to the Handwriting Expert for getting his opinion. He has obtained sanction from the appropriate authority to prosecute the accused. After completing the investigation he has filed the charge sheet.
34.When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused had denied the charges and also would state that the witnesses have deposed falsehood against him and would further state that the case has been foisted against him and in the departmental enquiry he has been dismissed from service and that the Bank authorities have realised the entire amount due to the bank from his GPF Account and that the loss to the bank has occurred only due to the inadvertance and mistake committed by the officials of the members of the staff of the bank and only as a vindictive measure the false complaint has been preferred against him and that he is having witnesses on his side. But the accused has not examined any witness.
35.After going through the evidence both oral and documentary the learned trial Judge has come to a conclusion that the accused is guilty under Section 419 (12 counts), 420 (12 counts), 467 (12 counts), 417 (12 counts), 477(a) (12 counts) IPC and under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, (12 counts) and convicted and sentenced the accused to undergo six months RI under the various provisions of the Indian Penal Code under each count and one year RI under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act under each count and further, slapped a fine for Rs.4,800/- on various counts. . The trial Judge has directed the sentence to run concurrently. Aggrieved by the findings of the learned trial Judge, this appeal has been preferred by the accused.
36.Now the point for determination in this appeal is whether the conviction and sentence of the learned trial Judge in S.C.No.1 of 1995 on the file of the Special Judge for CBI Cases, Madurai, is liable to be set aside for the reasons stated in the memorandum of appeal?
37.The Point:-Heard the learned counsel appearing for the appellant as well as the learned Special Public Prosecutor for CBI Cases and considered their respective submissions. The learned counsel appearing for the appellant would contend that there were 12 charge sheets filed against the accused before the trial Court, which were taken on file by the trial Court as S.C.Nos.205/92 to 216/92 and thereafter, all the cases were clubbed into S.C.No.1 of 1995 by the Special Court of CBI Cases, Madurai and out of the 12 cases 11 cases under C.C.Nos.205 to 215/92 the date of occurrence is before the Prevention of Corruption Act, 1988, came into force, but the charge has been framed against the accused under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, instead of under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, 1947. The Prevention of Corruption Act, 1988 (Act 49/88) came into force only on 9th September, 1988. According to the prosecution, the date of occurrence for C.C.No.205/92 was on 11.1.1986, for C.C.No.206/92 was on 1.2.1986, for C.C.No.207 was on 8.3.1986, for C.C.No.208/92 was on 3.5.1986, for C.C.No.209/92 was on 3.5.1986, for C.C.No.210/92 was on 4.10.1986, for C.C.No.211/92 was on 28.09.1987, for C.C.No.212/92 was on 29.5.1989, for C.C.No.213/92 was on 24.10.1987, for C.C.No.214/92 was on 2.1.1989 and for C.C.No.215/92 was on 27.2.1988 and only for C.C.No.216/92 the date of occurrence according to the prosecution was on 22.12.1988. The learned counsel for the appellant would contend that as per the Prevention of Corruption Act, 1947, the punishment contemplated under Section 5 (2) for the offence which falls under Section 5(1)(d) is one year, but which may extend to seven years or shall also be liable to fine and there is a proviso clause contained in Section 5(2) of the Prevention of Corruption Act, 1947, according to which, the Court for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. But this opportunity to place special reasons before the Court to get punishment less than one year has been taken away under the Prevention of corruption Act, 1988, under which, Section 13(2), the punishment section, the Court shall impose a sentence of imprisonment not less than one year, but which may extend to 7 years and also liable to be fine. So the learned counsel would contend that under Article 20(1) of the Constitution of India, the fundamental rights even under the Indian Constitution to the accused has been taken away since the prosecuting agency has filed the above mentioned 11 cases under the provisions of Prevention of Corruption Act, 1988, instead of filing the charge sheet in the above said 11 cases under the provisions of Prevention of Corruption Act, 1947. In support of this contention, the learned counsel for the appellant relied on a decision of this Court in 1992 LW( (Crl) 625 (State by D.S.P., Madras-4 Vs. S.Thirunavukkarasu & another). The short facts of the said ratio runs as follows:-
'The respondent S.Thirunavukarasu was a Minister for Housing, Government of Tamil Nadu, during the peirod 1986-87, in the cabinet headed by then Chief Minister Dr.M.G.Ramachandaran. One B.Bharathi was attached as his Personal Assistant. There were large number of complaints received against the said Minister alleging that he is indulging in corrupt practises in the sanctioning of plans for the construction of buildings in the Madras Metropolitan area either by flouting or relaxing the Development Control Rules without assigning any reasons. The Government direted the Inspector General of Police, Crime Branch, C.I.D., Madras, to conduct a preliminary inquiry and find out whether any corrupt or othr malpractices have been committed in the sanction of planning permission during the relevant period. The Inspector General of Police, Crime Branch, was said to have submitted a report in August, 1989, revealing that the preliminary inquiry conducted by him disclosed a prima facie case of receipt of illegal gratification by S.Thirunavukarasu and a detailed inquiry report was also forwarded to the Government in June, 1992. Between the period from 24.12.1987, the date of death of the Chief Minister Dr.M.G.Ramachadran, and 31.12.1987, the date on which the new government was formed, in about 29 cases out of 150 cases, the said Minister had passed exemption orders and the above said orders of exemption were construed as illegal and were passed in abuse of his power, done for the pecuniary advantage of himself and co-conspirators, attracting an offence under Section 120(B) IPC r/w 5(1)(a) & (d) of the Prevention of Corruption Act, (Act 2 /47 - old act). Accepting the preliminary report filed by the said Inspector General of Police, the Government ordered for lodging a complaint with the Inspector General of Police, C.B., C.I.D, Madras.
Subsequently a case was registered in Cr.No.16 of 1992 for the said offence and investigation was taken up. At the time when the accused were produced before the Court of Special Judge, Madras, it was contended on behalf of the accused by the learned counsel that the registration of the case on 15.7.1992 under the Provisions of the old Act for the acts said to have been committed during the currency of the said enactment, is not permissible legally, inasmuch as no action had been taken under the provisions of the said enactment therefore, before its repeal on 9.9.1988. It was further stressed on the side of the accused that since no offence had been committed by these persons under the present Act, (Prevention of Corruption Act 49 , 1988) and by no stretch of imagination they can be construed to have committed any offence, the Court should not order for remand. On behalf of the Government, it was contended by the learned Public Prosecutor that old act had been repealed and in its place a new enactment (Act 49 of 1988) had been passed with a saving provision under section 30(2) according to which it is legally permissible for the initiation of prosecution of any person accused of offences under the old Act, notwithstanding the fact that the case as respects those offences had been registered subsequent to repeal and, in this view of the matter, there is no other go for the Court except to remand these persons and allow further investigation to proceed according to law. The learned Special Judge accepting the arguments of the learned counsel appearing for the accused had rejected the request for remand, against which the Government had preferred Crl.O.P.No.9283/92. On the side of the accused Crl.O.P.No.10860 & 10904 of 1992 were filed, one for quashing of the first information report on the ground of non-disclosure of any cognizable offence, and the latter for quashing the investigation commenced on the basis of the first information report mainly on the ground of malafides.
While disposing of the above said Crl.OPs, the learned Judge of this Court has observed as follows:-
"The question as to whether acts done constituting cognizable offence during the currency of a repealed enactment, that is the old Act, are prosecutable subsequent to repeal by the registration of a case and consequent commencement of investigation for the collection of material in a bid for the formation of opinion to be reflected in the report to be filed under section 173(2), Code of Criminal Procedure, may fall for consideration in the arena of discussion. it is not as if the old Act had been repealed once and for all, in the sense of there being no replacement by a new enactment The sordid fact is that in order to curb the social menace of ever-pervading corruption in all walks of life, the old Act had been repealed and in its place a new Act had come into existence which contains rather suitable modifications and stringent provisions with a view to cleanse the public life, free from the evils of corruption. In doing so, sufficient care, caution and circumspection had been taken by incorporating certain saving provision in the new Act, as to what is to happen with regard to certain acts done or purported to be done during the currency of the old Act, subsequent to repeal. The saving provision, about which I will have the occasion to deal in an elaborate fashion at a subsequent stage, enables institution of prosecution for such acts under certain contingencies. There is no denial of the fact that the old Act had been repealed and in its place a new Act had come into force on and from the date fo such repeal, viz.9.9.1998. Yet another fact about which there is no dispute is that as regards the criminal acts alleged against S.Thirunavukarasu and B.Bharathi relatable to the period 1986-87, the period during which the old Act was in force, no action had been taken before the repeal of the old Act. The plain fact is that action had been taken for such criminal misconduct by the registration of a case on the basis of the first information report launched by the Secretary, Housing and Urban Development Department, on 15.6.1992, preceded by the holding of a preliminary enquiry which also happened subsequent to repeal. Such launching of a prosecution, as the Special Judge would say, is rather incompetent as such expression of opinion is now under serious challenge by the mounting of a scathing attack on the same by Mr.B.Sriramulu, learned Public Prosecutor. He would say that it is the fundamental canon of criminal jurisprudence that prosecution cannot be launched for certain acts constituting offences as against persons accused of such offences when there is no enactment or legislation constituting such acts as offences at the time when they were said to have been committed, no was permissible to subject such persons to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the ofence. This sort of canon of criminal jurisprudence, according to him, had been given constitutional recognition by providing a clause therefore in sub-clause(1) of Article 20 of the Constitution of Indian which prescribes, "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence"
...........................
Thus, on a conspectus of the construction of the provisions adumbrated under S.30 of the new Act coupled with the provisions as contained in S.6 of the General Clauses Act, 1897, and taking into consideration the object for which those provisions had been enacted, and on the face of the consequences flowing from the repeal of an enactment under different situations, as highlighted by the various decisions referred to supra, it goes without saying that the launching of prosecution under the old Act alone is legally permissible even subsequent to its repeal, as respects offences which were committed during the period when the old Act was in force - no matter when prosecution was launched - as there was no period of limitation prescribed therefor and in this view of the matter, the impugned order of the Special Judge deserved to be set aside as being unsustainable in law."
38.The learned Special Public Prosecutor to meet this argument has placed his reliance on AIR 1997 SC 869 (Central Bureau of Investigation Vs. Subodh Kumar Dutta and another), wherein the commission of offence was on 30.11.1987 and the Special Court had taken cognizance of the offence on 9.7.1988, at the time the Prevention of Corruption Act, 1947 was in force, since the Prevention of Corruption Act, 1988 came into force only from 9.9.1988. It was contended on behalf of the Government learned Additional Solicitor General that under Section 30 of the Prevention of Corruption Act, 1988 anything done and any action taken under the prevention of Corruption Act, 1947 before the repeal, has been specifically saved. Section 30 of the 1988 Act reads thus:-
:Repeal and Saving_ (1)The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952, (46 of 1952) are hereby repealed.
(2)Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provsiions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act."
The CBI in that case also filed charge sheet against the accused under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, on 11.2.1988. The relevant observation in the said decision for the purpose of deciding this case runs as follows:-
" A bare look at the provisions of sub-section 2 of Section 30 shows that anything done or any action taken or purport to have been taken under or in pursuance of the Prevention of Corruption Act, 1947 shall be deemed to have been taken under or in pursuance of the corresponding provision of the Prevention of Corruption Act, 1988. In view of this specific provision, the cognizance of the offence taken by the Special Court stood saved. It appears that the attention of the learned Single Judge of the High Court was not invited to Section 30 (supra) for had it been so invited, we have no doubt that the proceedings which were saved by the 1988 Act would not have been quashed. The learned Single Judge has only referred to Section 26 of the 1988 Act has no application to this case. The order of the High court in view of the clear provisions of Section 30 (supra) cannot be sustained and we, therefore, accept this appeal and set aside the order of the High Court impugned before us."
In the above ratio the point that came up for consideration before the Honourable Apex Court is whether the impugned order passed by the HighCourt on the basis of Section 26 of the 1988 Act without considering the provisions under Section 30 of the Act was held to be unsustainable. The Special Court on the basis of Section 30 of the Prevention of Corruption Act, 1988 has held that the Court is competent to take cognizance of the case, which was filed under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, 1947.
39. Now the moot point in the case on hand is that the whether the charge sheet laid by the prosecuting agency under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, for an offence committed before the Prevention of Corruption Act, 1988 came into force ie., on 9.9.1988 is sustainable or not?
40.In my considered view the charge sheet filed in C.C.No.205 to 215 of 1992 under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, is not sustainable because even according to the prosecution the date of occurrence in those cases is before the Prevention of Corruption Act, 1988 came into force. So the prosecution ought to have filed the charge sheet under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, 1947 and not under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
41. With regard to the remaining case C.C.No.216 of 1992, according to the prosecution, the occurrence had taken place on 22.12.1988. The learned counsel for the appellant would state that even in that case the sanction was not properly accorded for the prosecution against the accused as contemplated under law. According to P.W.1, the sanctioning authority, in the cross- examination would admit that in his order for sanction under Ex.P.2 that he has not specifically mentioned that after he himself satisfied that a prima facie case has been made out against the accused, he has issued the sanction for prosecution under Ex.P.2. So, the learned counsel for the appellant would contend that without applying his mind the sanctioning authority had issued Ex.P.2 - order of sanction for prosecution against the accused, which is nonest in law. For this proposition, the learned counsel for the appellant would rely on 1979 (4) SCC 172 (Mohd. Iqbal Ahmed VS. State of Andhra Pradesh). The ratio decidendi in the said ratio at para 3 of the above said judgment runs as follows:-
" A perusal of the resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely intentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on March 31, 1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses PWs 2 and 7. PW2 has produced the order implementing the Resolution of the Sanctioning Authority which is Ex.P10 and is dated April21, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction hs been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in ex.P16 which was placed before the Sanctioning Authority. the evidence of P.W.2 or PW7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr.Rao vehemently argued that although the resolution, Ex.P16 does not mention the facts. The Court should presume the facts on the basis of the evidence given by PW2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."
42.The learned counsel for the appellant would further contend that even according to P.W.1 the relevant records relating to the charges against the the accused were not produced before him to satisfy himself before according sanction under Ex.P.2. In the cross-examination P.W.1 would admit that he had no other records except Ex.P.2 to show that the list of documents received and considered by him at the time when he accorded the order of sanction. He would further admit that at the time of according sanction he received only the document described by him in the penaltimate paragraph of Ex.P.2-sanction order. But in Ex.P.2-sanction order he has omitted to mention that only after satisfying himself regarding the prima facie case has been made out against the accused, the sanction order was passed by him under Ex.P.2. So, the sanction order issued by P.W.1 against the accused under Ex.P.2 will also not stand for a moment for scrutiny. The reliance has been placed on the side of the prosecution under Ex.P.82-confession statement of the accused recorded before the commencement of the investigation by the CBI. P.W.29, one of the witness to Ex.P.82 would depose that as per the directions of the Regional Manager regarding some malpractices committed by the accused in Tuticorin Branch, SBI, he proceeded to Tirunelveli to enquire the accused and at that time in the presence of his, as well as another witness Eswaramoorthy, another officer of the bank vis., Venkatakrishnan had recorded the confession statement of the accused as stated by the accused since the accused has complained of sheavering of his hand. But surprisingly the said Venkatakrishnan, scribe of Ex.P.82- confession statement of the accused was not examined as a witness for the prosecution. Further in the cross-examination P.W.29 would admit that he had no record to show that only as per the directions of the Regional Manager of the SBI, Madurai, he and other two officials viz., Venkatakrishnan and Eswaramoorthy went to Tirunelveli and conducted enquiry and recorded the confession statement of the accused under Ex.P.82. Out of 31 witnesses examined on the side of the prosecution, no witness has deposed regarding the charges levelled against the accused under C.C.No.205 to 216 of 1992. As per the charge in C.C.No.205/92 the accused had signed as 'Balan' for the purpose of cheating the SBI, had deposited a cheque bearing No.508781 for Rs.3,000/-. Then Cashiers of SBI, Tuticorin Branch at the relevant point of time were examined as P.W.12, 15, 19 & 21. According to P.W.12, as per Ex.P.23/cheque which is in the name of Balan & Co., he had disbursed a sum of Rs.10,000/- on 2.5.1987 to Piramanayagam. But the said Piramanayagam was not examined as a prosecution witness. According to P.W.15, as per Ex.P.29-cheque a sum of Rs.3,050/- was disbursed to Gopalan on behalf of Balan & Co, but the said Gopalan was not examined as a prosecution witness. Only if the said Gopal and the said Piramanayagam were examined before the Court, then it would have been brought to light whether they are the persons arranged by the accused to collect the amount on behalf of the fictitious company Balan & Co., or whether they are the genuine persons received the amount from the bank, representing Balan & Co.
43.As per the charge under C.C.No.216 of 1991, the accused had signed in a cheque bearing No.397508 for Rs.5,000/- as Balan and thus cheated the SBI, Tuticorin Branch on 22.10.1988. According to P.W.21, as per Ex.P.46 disbursement account a sum of Rs.5,000/- was disbursed in favour of one Balan as per the cheque Ex.P.47 dated 22.10.1988 and that the said cheque was placed by the accused. But in the cross-examination P.W.21 would depose that Balan had received the said sum of Rs. 5,000/- as per the entries in Ex.P.46. But it is not the case of the prosecution that the accused himself had signed in Ex.P.46 - disbursement register and received the said sum of Rs.5,000/- on behalf of "Balan and Co.". Further, the Handwriting Expert P.W.30 has compared the disputed signatrues found in Q1 to Q46, ie., Ex.P.62, 9, 12, 14, 5, 11, 63, 8, 7, 72, 64, 29, 65, 66, 67, 68, 31, 23, 15, 69, 70, 40, 39, 25, 47, 71 and 75, with that of the admitted signatures of the accused in S.No.1 to S.No.31, which are Ex.P.84 (series) and has filed his opinion Ex.P.85 and his report Ex.P.86. The learned counsel appearing for the appellant would contend that the specimen signature from the accused and witnesses were not taken as per Section 311-A of Cr.P.C., wherein it has specifically been provided that the specimen signatures and handwriting of the accused shall be taken before the Judicial Magistrate. But in this case there is absolutely no evidence on record to show that the specimen signatures of the accused under Ex.P.84 were taken in the presence of a Magistrate. Hence, the learned counsel for the appellant would contend that no reliance can be placed on Ex.P.85-opinion or on Ex.P.86-report of the Expert to sustain the conviction and sentence awarded by the learned trial Judge. Section 311-A of Criminal Procedure Code, 1973, runs as follows:-
"If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting; Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceedings."
44.The learned counsel for the appellant relying on a Judgment of this Court in 1993 (Vol.XXXVII) Madras Law Journal Reports - Criminal 98 (T.S.Antony Vs. State of Tamil Nadu rep by Public Prosecutor, High Court, Madras), would contend that the comparison of the admitted signatures of the accused in Ex.P.84 with that of the disputed signatures contained in Q1 to A46 by the Expert-P.W.30 cannot worth credence because the signatures obtained from the accused under Ex.P.84 were not taken before the Judicial Magistrate as contemplated under Section 311-A of Cr.P.C., which procedure has been deprecated by this Court in the above said raito. The relevant observation in the above said ratio for the purpose of this case runs as follows:-
"Learned Public Prosecutor also agrees that from a perusal of the records of the trial Court, P.W.5 was not recalled and cross-examined by the accused 2 and 3. The reason for not cross examining P.W.5 is not known. In the circumstances, the conclusion arrived at by the courts below, cannot be upheld. Further, the Police also have not obtained the specimen signatures of P.W.5 in the presence of the Presiding Officer. Therefore, Ex.P-27 also cannot be accepted since the specimen signatures of P.W.5 were said to have been obtained by the police not in the presence of the Presiding Officer. This sort of practice has to be avoided in future since if the prosecution wants to help the accused, there is possibility of taking the specimen signature or thumb impression of somebody else instead of the accused (or) complainant or relevant witness and get the opinion on the same and produce before the trial Court and defeat the ends of justice. Therefore, it becomes necessary that the prosecution obtains the specimen signature of thumb impression of a witness (or) accused (or) complainant for comparison with the admitted signature in the presence of the Presiding Officer in order to avoid any suspicion that the specimen signature or the thumb impression of the witness or accused (or) complainant was not obtained in the police station or in jail and the prosecution, as stated earlier should obtain the specimen signatures or thumb impressions in the presence of the Presiding Officer of a Court. Then only the opinion based on the specimen signature or thumb impression can be treated as evidence for the purpose of the case. Otherwise, the very opinion itself became suspicious and cannot be looked into as a piece of evidence..."
45.Yet another point focused before this Court by the learned counsel appearing for the appellant is that in this case admittedly a domestic enquiry has been conducted before launching of the prosecution and that in the domestic enquiry the accused was found guilty and was dismissed from service. P.W.29, SBI Official, would admit in the cross-examination that the State Bank of India had initiated departmental proceedings against the accused. while questioning under Section 313 of Cr.P.c, the accused would admit that the departmental enquiry was concluded and he was dismissed from service. Basing reliance on 1989(1) CRIMES 4 (Bojan Vs. State by Inspector of Police, Crime Branch), the learned counsel appearing for the appellant would contend that if a criminal prosecution is launched after the domestic enquiry was over, the criminal trial would be vitiated. The relevant observation in the said Judgment runs as follows:-
" I shall now deal with the contentions raised by the learned counsel for the revision petitioner. When an employee has committed an act, which would amount to an offence under law and also a mis conduct under the relevant standing orders, the management have at their disposal, two kinds of actions. One is to launch a prosecution and the another is to start a disciplinary proceeding. But, the management is not bound to take both. When the management chooses to resort to both the actions, the question arises as to the time when each of them has to be started. it is to be noted that the nature of a criminal trial and that of a domestic enquiry are quite different and that in a criminal trial, the standard of proof is much more strict than in a domestic enquiry. In a criminal trial the accused can remain silent and leave the prosecution prove the case, but in a domestic enquiry, where the standard of proof is not the same, the accused person may have to participate more actively in the enquiry, put forth his case more in detail and even endeavor to prove it by adducing evidence. Such being the case, if the criminal trial takes place after the domestic enquiry, the concerned person would be prejudiced either he would have to disclose his case in the domestic enquiry before the trial starts or he would have to refrain from disclosing his case in the domestic enquiry and therefore loose in that enquiry. That is the reason why, it would be just and proper that the criminal trial takes place first and the domestic enquiry second. Though there is no statutory rule to that effect, the Courts have always opined that in view of the legal frame work of our country that should be the normal course of things. In other words, the management need not in all cases opt for a criminal trial. If it opts for such a course, the domestic enquiry should be stayed. If the criminal trial ends in favour of the management, the latter can take action on the basis of the finding of the criminal court. If not, it can conduct its domestic enquiry or take action according to the circumstances of the case. But both the domestic enquiry should not proceed the criminal trial. In this case, it is found that the criminal prosecution was launched after the domestic enquiry was over and in that way, the accused in the criminal proceedings was obviously prejudiced.
On that ground the conviction and sentenced against the accused was set aside by the learned Judge of this Court"
Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused beyond any reasonable doubt and certainly the benefit of doubt shall go to the accused. Point is answered accordingly.
46.In fine, the appeal is allowed and the conviction and sentence of the learned trial Judge in S.C.No.1 of 1995 on the file of the Court of Special Judge for CBI Cases, Madurai, is set aside and the accused is relieved from all the charges levelled against him. Fine amount, if any paid, shall be refunded to the accused. Bail bond shall stand cancelled.
ssv.
To,
1.The Special Judge for CBI Cases, Madurai.
2.The Special Police Establishment CBI, Madras, R.C.No.13(A)/1991