Madras High Court
Thiru.C.Ganesan vs State Represented By on 11 November, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.Nos.1112 of 2015 and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.01.2022
PRONOUNCED ON : 11.11.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.Nos.1112 of 2015 and 957 & 983 of 2016
and Crl.O.P.No.34130 of 2019
and
Crl.M.P. Nos.7539, 7538, 7867 & 7868 of 2016
and 18883 & 18884 of 2019
1.Thiru.C.Ganesan, age 51 yrs.,
S/o.Tr.Chockalingam Pillai,
Inspector of Police,
SPCID Security (Core Cell),
Chennai. ... Petitioner in Crl.R.C.No.1112 of 2015
2.Thiru.I.Periyasamy ... Petitioner in Crl.R.C.No.957 of 2016
and Crl.O.P.No.34130 of 2019
3.K.Padma ... Petitioner in Crl.R.C.No.983 of 2016
Vs.
State Represented by
The Deputy Supdt. Of Police,
Vigilance and Anti-Corruption,
Chennai. ... Respondent in all petitions
PRAYER in Crl.R.C.No.1112 of 2015: Criminal Revision is filed under
Section 397 r/w 401 of the Code of Criminal Procedure, to call for the records
in C.C.No.19 of 2013 on the file of the Special Court for the cases under
Prevention of Corruption Act, Chennai and set aside the order in
Crl.M.P.No.882 of 2013 dated 6.08.2015.
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Crl.R.C.Nos.1112 of 2015 and batch
PRAYER in Crl.R.C.No.957 of 2016: Criminal Revision is filed under Section
397 r/w 401 of the Code of Criminal Procedure, to call for the records in
C.C.No.19 of 2013 on the file of the Special Court for the cases under
Prevention of Corruption Act, Chennai set aside the order in Crl.M.P.No.366
of 2016 dated 6.07.2016 and discharge the petitioner from C.C.No.19 of 2013.
PRAYER in Crl.R.C.No.983 of 2016: Criminal Revision is filed under Section
397 r/w 401 of the Code of Criminal Procedure, to set aside the order passed
in Crl.M.P.No.1184/2015 in C.C.No.19/2013 dated 12.01.2016 on the file of
the Special Court for the cases under Prevention of Corruption Act at Chennai
and discharge the petitioner in C.C.No.19 of 2013 on the file of the Special
Court for the cases under Prevention of Corruption Act at Chennai.
PRAYER in Crl.O.P.No.34130 of 2019: Criminal Original Petition is filed
under Section 482 of Code of Criminal Procedure, to call for the entire records
in C.C.No.13 of 2019 pending on the file of the Additional Special Court for
Trial of Criminal Cases Related to Elected Member of Parliament and
Members of Legislative Assembly of Tamil Nadu, Singaravelar Maaligai,
Chennai and quash the charges framed and all further proceedings in
C.C.No.13 of 2019.
For Petitioner
in Crl.O.P.No.34130 of 2019
and Crl.R.C.No.957 of 2016 : Mr.N.R.Elango, Senior Counsel
for Mr.A.Saravanan
For Petitioner
in Crl.R.C.No.1112 of 2015 : Mr.N.R.Elango, Senior Counsel
for Mr.R.Vivekananthan
For Petitioner
in Crl.R.C.No.983 of 2016 : Mr.D.Veerasekaran
For Respondent
in all petitions : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
*****
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Crl.R.C.Nos.1112 of 2015 and batch
COMMON ORDER
Crl.R.C.Nos.1112 of 2015 and 957 & 983 of 2016 have been filed to set aside the orders, dated 06.08.2015, 06.07.2016 & 12.01.2016, made in Crl.M.P.Nos.882 of 2013, 366 of 2016 & 1184 of 2015 in C.C.No.19 of 2013, respectively, by the learned Special Judge, Special Court for Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai.
2.Crl.O.P.No.34130 of 2019 has been filed to quash the proceedings/charges framed in C.C.No.13 of 2019, on the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Members of Legislative Assembly of Tamil Nadu, Singaravelar Maaligai, Chennai (trial Court).
3.Initially, the case in C.C.No.19 of 2013 was pending before the learned Special Judge, Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai, thereafter, the case has been transferred to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Members of Legislative Assembly, Chennai and renumbered as C.C.No.13 of 2019 since A3 was the Minister for Page No.3 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Housing at the relevant period.
4.Since all the petitions arise out of C.C.No.13 of 2019, this Court disposes all the petitions, by way of common order. Since the petitioners herein are A1 to A3 in C.C.No.13 of 2019, for the sake of convenience and clarity, they are referred to, as per their rank, in the charge sheet.
5.The background of the case C.C.No.13 of 2019, is as follows:-
(i)The respondent Police registered a case in Crime No.4/AC/2012/CC-
I, against A1-C.Ganesan, the then Inspector of Police, SB-CID Security (Core Cell), Chennai, A2-K.Padma, a Promoter of the properties of A1 and A3- I.Periyasamy, Former Minister for Housing, Tamil Nadu between the year 2007 and 2011. At the relevant point of time, A1 and A3 are public servants within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988.
(ii)During the period between 2008 and 2009, A1 to A3 were parties to the criminal conspiracy, having agreed to commit and abet each other in the commission of offence of criminal breach of trust and criminal misconduct in getting allotment of HIG plot No.1023, Mogappair Eri Scheme, Tamil Nadu Page No.4 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Housing Board (TNHB), Chennai, under Government Discretionary Quota (GDQ) to A1. In pursuance to the criminal conspiracy and with common intention, A1 gave application dated Nil to the Former Chief Minister of Tamil Nadu stating that his family was residing in a rented house, paying exorbitant monthly rent. By suppressing the fact of residing in TNHB Quarters, he requested the former Chief Minister of Tamil Nadu, for allotment of TNHB plot under public quota, without any supporting documentary evidence. Further, A1's petition did not bear any seal or signature of any officer, for having received the petition. The petition was numbered as 5732/HB-5(1)/08 on 06.03.2008 in the Housing and Urban Development Department. On the same day, office note was initiated by Housing and Urban Development Department with recommendation for allotment of TNHB vacant HIG plot No.1023 under GDQ, in the category of impeachable honest Government servant. This office note file was signed by LW5-R.Sellamuthu, I.A.S., (Retired) Officer in the capacity of Secretary, Housing and Urban Development Department, Chennai on 07.03.2008 and approved by A3- Former Minister for Housing, Tamil Nadu, Chennai on 10.03.2008. The HIG plot No.1023, Mogappair Eri Scheme was allotted to A1 under GDQ in the category of impeachable honest Government servant, vide G.O.(2D)No.170, Page No.5 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Housing and Urban Development Department (H.G.5(1)) Department, dated 10.03.2008.
(iii)In pursuance to the criminal conspiracy and with common intention and in the course of same transaction, A1 by virtue of his close proximity with the Former Chief Minister of Tamil Nadu, obtained TNHB plot in his name under GDQ with the help of A3-Former Minister for Housing. On 18.03.2008, a copy of TNHB memo in Ref.No.Allot.1.3/31747/2005, dated 17.03.2008 was received in the office of the Executive Engineer, TNHB, Mogappair Division regarding allotment of plot under GDQ to A1 along with the copy of G.O.(2D)No.170, Housing and Urban Development Department (H.G.5(1)) Department, dated 10.03.2008. Based on the Government Order, the office note, dated 18.03.2008 was prepared in MRA.No.4/01022 and addressed to A1 by Manager, Marketing & Service, Mogappair Division, TNHB, which is otherwise called 'provisional allotment order'. In the provisional allotment order, it is found that the cost of the HIG plot No.1023 measuring 4.70 sq.ft was Rs.74,13,100/- and the deadline for the payment of the cost of the plot was fixed as 31.03.2008. In furtherance to the criminal conspiracy, even before getting provisional allotment order for the above Page No.6 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch allotment from the Mogappair Division of TNHB, A1 entered into Joint Development Agreement (JDA) with A2 on 16.03.2008 to develop the TNHB HIG plot No.1023 allotted to him under GDQ and thereby, violated the condition No.5 of the lease-cum-sale agreement, wherein the specific prohibition is that without previous permission in writing from the lessor- vendor (TNHB), the purchaser shall not be entitled to assign, sub-let or part with the possession of the whole or any part of the property. In this case, A1 entered into JDA on 16.03.2008 with A2 even before issuance of provisional allotment order by TNHB.
(iv)As per JDA, it was decided that A1 would retain 15% of the above said plot as undivided share due to him and the land promoter/A2 would get the remaining 85% of the undivided share of the plot. As per JDA, A2 paid Rs.74,13,100/- to A1 as a non-refundable deposit towards full cost of the above HIG plot No.1023 and cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch issued by A2 in favour of the Executive Engineer/ADO, TNHB, Mogappair Division and the same recorded in JDA, dated 16.03.2008. Thereafter, on 27.03.2008, A1 sent a letter to the Executive Engineer, TNHB, Mogappair Division enclosing the above said cheque Page No.7 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch towards the cost of plot. After receipt of payment on 28.04.2008, the regular allotment order was issued to A1 for the above said plot by TNHB. On 07.08.2008, the sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub Registrar Office, Konnur, vide sale deed in document No.3544 of 2008. On 19.01.2009, A1 executed the General Power of Attorney in favour of A2, which was registered as document No.245 of 2009 on 23.03.2009 at Sub Registrar Officer, Konnur. On 03.06.2009, A2 being the power of attorney of A1, sold the above plot to one A.Kaliammal for sale consideration of Rs.1,01,38,400/-, vide sale deed in document No.1912 of 2009, dated 03.06.2009 at the Sub Registrar Office, Konnur. On the profit earned by A2 by sale of this plot, A2 issued a cheque No.458228 for Rs.19,66,000/- in favour of A1 towards the sale of 15% undivided share held by A1 and the same was deposited in State Bank of India, K.K.Nagar Branch, Chennai in the account of A1 on 20.07.2009. Thereafter, using this amount, A1 purchased another property comprising 1131 sq.ft at Bazar Street, Nesapakkam, K.K.Nagar West, Chennai from A2 on 20.04.2009. Thereafter, A1 issued a cheque No.445136 for Rs.13,70,000/- on 20.04.2009 to A2. Initially when A1 issued the cheque to A2, there was no fund in his account. The cheque was realized only on 24.07.2009 after A1 received his 15% share Page No.8 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch of Rs.19,66,000/- from A2 in sale of HIG plot No.1023.
(v)Thus, A1 with his close proximity and nexus with the Former Chief Minister, ensured HIG plot No.1023 under GDQ. A3 due to his proximity and obligation to the Former Chief Minister, allotted the said plot under GDQ to A1, who is not eligible for the same. Even before the plot was allotted to A1, he entered into JDA, dated 16.03.2008 with A2. Within the short period, A2 being the power of attorney of A1, had sold the plot No.1023 allotted to A2, at higher rate. Thus, A1 using his clout and position as Personal Security Officer to the Former Chief Minister, influenced A3 to allot plot under GDQ in his favour. In this case, A2 used as a Financier in the name of Promoter. A1, by misconduct using his position, had misappropriated and committed the offence of cheating along with A2 and A3. A3, who was entrusted with domain over the property of Housing and Urban Development Department, abetted and aided A1 and A2 in commission of the above offence. The respondent Police on completion of investigation, filed charge sheet before the learned Special Judge, Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai, for offence under Sections 120(B) r/w 409 & 420 of IPC and Sections 13(1)(c) & (d) r/w 13(2) of the Prevention of Corruption Act, 1988 Page No.9 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch and Section 109 IPC and the same was taken on file as C.C.No.19 of 2013. Under these circumstances, a petition was filed under Section 173(8) of Cr.P.C., by the prosecution to conduct further investigation and the same was allowed by learned Special Judge, Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai on 30.01.2014. On the completion of the same, additional charge sheet has been filed listing some more witnesses and documents. Totally, in this case, 23 witnesses examined as LW1 to LW23 and 46 documents collected as LD1 to LD46.
(vi)During pendency of trial in C.C.No.19 of 2013, all the accused filed discharge petitions before the Special Judge, Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai in Crl.M.P.No.882 of 2013, 366 of 2016 & 1184 of 2015 in C.C.No.19 of 2013, in which, the learned Special Judge, by orders, dated 06.08.2015, 06.07.2016 & 12.01.2016, dismissed all the petitions. Aggrieved over the same, they approached this Court, by way of criminal revisions, which are under challenge in Crl.R.C.Nos.1112 of 2015 and 957 & 983 of 2016. Thereafter, the case in C.C.No.19 of 2013 transferred to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Page No.10 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Members of Legislative Assembly, Chennai and renumbered as C.C.No.13 of 2019. During pendency of trial in C.C.No.13 of 2019, A3 filed the present criminal original petition in Crl.O.P.No.34130 of 2019 to quash the case.
6.The submissions of the learned Senior Counsel appearing for A1 in Crl.R.C.No.1112 of 2015 are as follows:-
(i)The learned Senior Counsel submitted that the case projected by the prosecution against A1 is that he conspired with the other accused/A2 and A3 in getting allotment of HIG plot No.1023 at Mogappair Eri Scheme, under GDQ taking advantage of his official position since he was a Personal Security Officer to the Former Chief Minister of Tamil Nadu. It is further alleged that A1 submitted his application to the Former Chief Minister of Tamil Nadu for allotment of plot under public quota without any documentary evidence. The petition did not bear any seal or signature of any officer. The petition was numbered as 5732/HB-5(1)/08 on 06.03.2008 in the Housing and Urban Development Department. On the same day, the office note file was initiated by the Housing and Urban Development Department in the category of impeachable honest Government servant and it was signed by LW5-
R.Sellamuthu, I.A.S., Former Secretary, Housing and Urban Development, Page No.11 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Chennai on 07.03.2008 and approved by A3-Minister for Housing on 10.03.2008, pursuant to which G.O.(2D)No.170, Housing and Urban Development Department (H.G.5(1)) Department issued. It is further alleged that A2 in favour of A1 issued a cheque No.178476, dated 24.03.2008 to the Executive Engineer/ADO, TNHB, Mogappair Division for purchase of plot for sum of Rs.74,13,100/-. Thereafter, A1 was issued with the provisional allotment order, dated 18.03.2008 for the said plot. After receipt of the payment on 28.04.2008, regular allotment order was issued to A1 for the said plot by the TNHB. On 07.08.2008, the sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub Registrar Office, Konnur, vide sale deed in document No.3544 of 2008. In the meanwhile, on 16.03.2008, even before provisional allotment order was issued and sale deed was executed, A1 is said to have entered into JDA with A2 to develop the HIG plot No.1023 allotted to him under GDQ, retaining 15% of the undivided share with him.
(ii)The learned Senior Counsel further submitted that as per condition No.5 of the lease-cum-sale agreement, without permission and prior approval of the TNHB, the property cannot be dealt with by the purchaser, but, in this Page No.12 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch case, A1 without permission and prior approval, entered into JDA with A2 on 16.03.2008 to develop the plot allotted to him under GDQ. This is on a wrong premise by the prosecution, for the reason that A1 did not purchase the said HIG plot No.1023 under the lease-cum-sale agreement and it was purchased under outright sale. Moreover, once the property purchased from the TNHB under outright sale, there is no restriction for the purchaser to deal with the property in the manner deems fit. The learned Senior Counsel further submitted that A1 informed his department about purchase of the said plot under GDQ using the funds of A2, since A1 was not in a position to mobilize such huge amount to purchase the said plot. The JDA, dated 16.03.2008 is only an agreement to promote the said plot since the cost of building materials had gone beyond expectation. Since the JDA could not be continued, the plot was later sold to one A.Kaliammal. This sale is not questioned by TNHB or the Government. A1 purchased property comprising 1131 sq.ft., at Nesapakkam, K.K Nagar West, Chennai from A2 on 20.04.2009 and the sale consideration was fixed at Rs.13,70,000/-, which was paid through cheque No.445136, dated 20.04.2009 by A1. The Deputy Inspector General of Police, Intelligence, Chennai in Na.Ka.No.D1/SEC/1939/2008, dated 16.04.2009 and 21.04.2009 conducted enquiry for purchase of HIG plot No.1023 from TNHB Page No.13 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch and verified all the documents, approved, granted permission/ratification for A1 to purchase the said plot. Since A1's parent Department conducted detailed enquiry on purchase of said plot and purchase of property at Nesapakkam, K.K Nagar West, Chennai from A2 and approved the same, the prosecution for the same transaction by a different agency viz., the Vigilance and Anti Corruption is not proper. He further submitted that there was no pecuniary loss suffered in any form either by the TNHB or the Government and no complaint of any sort was lodged either by the TNHB or the Government. In fact, in this case, there are positive evidence and materials to show that the HIG plot No.1023 was sold to A1 over and above the market value.
(iii)He further submitted the application of A1 for allotment of plot, was processed by the Under Secretary, Joint Secretary and the Secretary of Housing and Urban Development Department. LW5-R.Sellamuthu, Former Secretary to Housing and Urban Development Department verified the note file prepared for A1, approved and signed the same and forwarded to the Minister for Housing/A3. A3 concurred with the recommendation of the officers. As per the Secretariat Business Rules, the note file is processed Page No.14 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch through various officials and only after scrutinizing and verification, the note file was finally sent to A3, who concurred with the recommendations of the officials. These facts were not considered by the trial Court in the discharge petition. After allotment of HIG plot No.1023, A1 obtained information through RTI from TNHB, wherein the TNHB confirmed that the they have not suffered any loss by allotting HIG plot No.1023 to A1 under GDQ. He further submitted that A1 is an Impeachable Honest Public Servant, which is not in dispute, there is no negative report. Since A1 was the Personal Security Officer to the Former Chief Minister of Tamil Nadu and due to change of Government, to somehow cause harassment and ignominy to A1 and other Personal Security Officers of the then Chief Minister namely Pandian and Vinothan, who were also allotted plots, the above case has been registered. It is wrongly projected that A1 violated the condition No.5 of the lease-cum-sale agreement which is not applicable to outright sale of HIG plot No.1023, under GDQ to A1.
(iv)The learned Senior Counsel further submitted that the Deputy Inspector General of Police, Intelligence, Chennai conducted enquiry, who gave reports in Na.Ka.No.D1/SEC/1939/2008, dated 16.04.2009 and Page No.15 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 21.04.2009, which are public documents approving A1 purchasing the plot and sale of the same to one A.Kaliammal through A2. In the departmental enquiry, all the statements and transaction of A1 are found to be genuine and A1 was permitted to proceed with the transaction with A2. While this being so, there is no prima facie case to proceed against A1. He further submitted that the Investigating Officer failed to consider that the offence under Sections 409 and 420 of IPC cannot exist together. Further, the charge sheet is silent to the extent that the property was entrusted to A1 and A1 had dishonestly dispossessed the same in violation of any law prescribing the mode in which such trust is to be discharged. In this case, there is no material to show that A1 in conspiracy with other accused, cheated the Government and thereby, caused wrongful loss to TNHB. A1 in his application for allotment of plot stated he is residing in Government quarters for higher rent, hence, he may be allotted plot from the TNHB either under the public quota or GDQ. There is no material to show that A1 is not entitled or qualified to be considered under GDQ for allotment of plot. The trial Court failed to look into these aspects and mechanically dismissed the discharge petition, which needs interference of this Court.
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7.The submissions of the learned counsel appearing for A2 in Crl.R.C.No.983 of 2016 are as follows:-
(i)The learned counsel submitted that A1 in criminal conspiracy with the other accused, had committed the offence of criminal breach of trust and criminal misconduct to cheat the Government. Initially, A1 made application to the Former Chief Minister of Tamil Nadu for allotment of plot under GDQ on 06.03.2008 and it was processed by LW5, Former Secretary of Housing and Urban Development Department on 07.03.2008 and approved by A3, Former Minister for Housing on 10.03.2008. On the same day i.e., on 10.03.2008, the Government issued G.O.(2D).No.170, Housing and Urban Development Department allotting HIG plot No.1023, Mogappair Eri Scheme to A1. On receipt of the said Government Order, the TNHB informed about the allotment of plot to A1 under GDQ to the TNHB, Mogappair Division on 17.03.2008 and provisional allotment order was issued on 18.03.2008 to A1 for HIG plot No.1023 measuring to the extent of 4370 sq.ft., and fixed price of Rs.74,13,000/- to be paid on or before 31.03.2008. The plots under the Mogappair Eri Scheme of TNHB are earmarked with boundaries and identification. Once the provisional allotment order issued by the TNHB officials, the further process in allotment of plot is only procedural formalities. Page No.17 of 60
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch On the strenght of provisional allotment order, A1 entered JDA with A2 on 16.03.2008 to develop HIG plot No.1023 and also produced the provisional allotment order for payment on or before 31.03.2008. In the JDA, dated, 16.03.2008, the future happenings recorded which is doubted and aspersion cast about the genuiness of JDA. The JDA, dated 16.03.2008 is only an internal arrangement between A1 and A2, the agreement was not used anywhere by claiming right over it. Except the date, which has been wrongly mentioned, other particulars found in the JDA, dated 16.03.2008 are all genuine.
(ii)He further submitted that as per JDA, dated 16.03.2008, A1 would retain 15% of the above said plot as undivided share due to him and A2 would get the remaining 85% of the undivided share of the plot. A2 made payment of Rs.74,13,100/- through cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch, Chennai in favour of the Executive Engineer/ADO, TNHB, Mogappair Division, Chennai. Initially, the agreement was entered for construction of flats, due to sudden increase in building material cost, it was found that the project was not viable. The HIG plot No.1023 was purchased by A1, on outright sale without any condition. Page No.18 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch The condition No.5 in lease-cum-sale agreement now said to be viiolated in a general clause, which is found in all the sale deeds of TNHB by default it was incorporated in the sale deed of A1. As per condition No.5, the plots/flats/houses are sold under long term lease-cum-sale, wherein the lease period would be for a period of ten or fifteen years depending upon the project and thereafter, on the payment of entire purchase price, the sale deed would be executed in favour of purchaser. In the present case, it was an outright sale, hence, mentioning the condition No.5 is redundant. The statement of witnesses from the TNHB stated that after execution of sale deed in favour of purchaser of the plot under GDQ, the TNHB has nothing to do with the property thereafter. They further stated that the plot under GDQ in favour of A1, was sold at market rate and the TNHB or Government not sustained any loss in any form.
(iii)The learned counsel further submitted that A1 informed his parent department about the arrangement between A1 and A2 in purchase of plot, under GDQ from the TNHB and in selling the same through A2. In this case, A2 in favour of A1 paying Rs.74,13,100/- to the Executive Engineer, TNHB, Mogappair Division, Chennai on 24.03.2008 for HIG plot No.1023; A1 Page No.19 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch represented by his power agent A2 selling plot to A.Kaliammal for sale consideration of Rs.1,01,38,400/-; A2 paying Rs.19,66,000/- to A1 towards the sale of 15% undivided share and A1 paying Rs.13,70,000/- to A2 for buying the property at Nesapakkam, K.K Nagar West, Chennai are all made through bank by way of cheques, transparent and nothing was done in a deceitful manner. Al is from the Police Department, where the Deputy Inspector General of Police, Intelligence, Chennai conducted detailed enquiry, against A1 in respect of the abve said transactions, entereing into JDA with A2 and found that there is no false representation or cheating of funds of the TNHB or Government in any form and approved A1 in purchasing the plot from TNHB and entering JDA with A2. With regard to other aspects in this case, A2 has got no role. In this case, A2 neither abetted nor cheated any one and the prosecution does not have any material to prove the same. Hence, the trial Court failed to consider all these aspects and also the positive evidence in favour of A2 available by way of statements and documents. Hence, the Lower Court mechanically dismissed the discharge petition of A2 on 12.01.2016, which needs interference of this Court. Page No.20 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch
8.The submissions of the learned Senior Counsel appearing for A3 in Crl.R.C.No.957 of 2016 and Crl.O.P.No.34130 of 2019, are as follows:-
(i)The primary allegation against A3 is that A3 as the Minister for Housing, was incharge of TNHB and allotted the plot No.1023 in Mogappair Eri Scheme under GDQ to A1. Since A1 was in close proximity with the Former Chief Minister of Tamil Nadu as Personal Security Officer, his application for allotment of plot under GDQ, was not properly received and stamped. On the other hand, the office note file was prepared on the application of A1 on 06.03.2008, for allotment of HIG plot No.1023 under GDQ in the category of impeachable honest Government Servant by the Housing and Urban Development Department and the same was signed by LW5, then Secretary to Housing and Urban Development Department with positive approval to allot HIG plot No.1023, under GDQ on 07.03.2008 and it was placed before A3 for approval. After three days i.e., on 10.03.2008, A3 concurred with the recommendation of the LW5. He further submitted that as per Business Rules of Secretariat, the office note file is made ready by the Section Officer, Assistant Section Officer and it passed various level of officials like Under Secretary, Joint Secretary and finally to the Secretary, who all recommended and placed it before A3 for approval. Finding that there is Page No.21 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch no objection or any contra opinion in allotment of HIG plot No.1023 under GDQ, A3 concurred with the recommendation of the Secretaries. It is no doubt that A1 in this case a Personal Security Officer to the then Chief Minister of Tamil Nadu, through whom, he sought for allotment of plot under GDQ. Since there was positive recommendation made by the Secretaries favouring plot to be allotted under GDQ in TNHB Moggapair Eri Scheme, A3 cannot be slapped with a criminal case.
(ii)He further submitted that there is no evidence or material in any manner to show that A3 violated rules and regulations followed in allotment of plot under GDQ and no material to show that to benefit himself, he approved the plot in favour of A1. On a demeanour, if by mistake or by oversight, if any order has been passed, for which, A3 cannot be prosecuted for criminal offence and that too, for offence of conspiracy and abetment.
LW5-R.Sellamuthu, then Secretary to Housing and Urban Development Department stated that he directed the concerned Section Officer to process the application of A1 seeking allotment of plot under GDQ, as per direction, the office note file was put up with the note sheet and sent to A3 for his concurrence. The discretion of A3 in concurring with the office note file, Page No.22 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch cannot be doubted or found tainted unless there is concrete material to prove that the discretion was for some other consideration. In this case, what transpired between A1 and A2, A3 is not privy to the same. Except concurring the office note file of A1 seeking allotment of plot under GDQ on 10.03.2008, nothing more done by A1. More so, either before or after the day of approval, A3 had anything to do thereafter with the plot allotment. As per G.O.(2D).No.170, Housing and Urban Development Department, dated 10.03.2008 in paragraph No.2, the verification of documents and application seeking allotment of plot, to be done by the Chairman and Managing Director of the TNHB. It is their duty to have verified the genuineness or otherwise of the claim made by A1. The trial Court failed to consider these aspects of the case and also the letter No.14127/HB3(1)/2016-19, dated 28.09.2021 of the Principal Secretary to Government, Housing and Urban Development Department, Chennai issued to the Director of Vigilance and Anti Corruption, Chennai reiterating and confirming it is the concerned Executive Engineer and concered Administrative Officer of the TNHB to check the credentials of the applicants before issuance of allotment order.
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(iii)He further submitted that though LW3 stated that there is no office seal or signature, found in the application of A1, she admits that the application of A1 was given to her by LW5-R.Sellamuthu, then Secretary to Housing and Urban Development Department, Chennai. LW4, the then Joint Secretary, Housing and Urban Development Department stated about the procedure followed in the Secretariat in allotment of plots to the applicants under GDQ. LW5, the then Secretary to Housing and Urban Development Department stated that A3 used to give oral orders and instructions to him in allotment of plots under GDQ and he used to follow the same. LW6 the then Joint Secretary, Housing and Urban Development Department confirms that the office note files for the allottees under GDQ are processed in usual procedure. The other witnesses from the Housing and Urban Development Department, Tamil Nadu Housing Board and bank officials have stated nothing against A3. LW3-Hemalatha, Section Officer, Housing and Urban Development Department, Chennai stated that it is on the direction of LW6- K.N.Krishnasamy Rao, then Joint Secretary to Housing and Urban Development Department, Chennai, she put up the note file of the applicants seeking allotment of plot under GDQ and processed the same by official Page No.24 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch channel. In this case, the office note file with regard to three of the Police personnels were processed with regard to the allotment of plots under GDQ.
(iv)It is strange to see that the Senior Level officers at the level of Secretary, Section Officer and Assistant Section Officer have all processed the file in the year 2008 and till 2012, not whispered anything against A3 to have given oral instructions in allotment of plot under GDQ. After four years, such allegations made against A3. The first principle in criminal jurisprudence is that the documentary evidence would prevail over the oral evidence. He further submitted there is procedures contemplated under the Secretariat Business Rules, with regard to processing of the office files, note files movement of the same. In this case, all procedures followed. The procedure is that in case of oral instructions of the Officers, it has to be recorded in the file post instruction. But, in this case no such recordings available, which confirms the present allegation against A3 is an after thought to somehow implicate A3 in this case, for obvious reasons.
(v)The learned Senior Counsel further submitted that LW1 is the witness, who speaks about LD44, the sanction for prosecution accorded to Page No.25 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch prosecute A3, vide proceedings Rc.No.16302/2012-2/B-III, dated 17.12.2012. On perusal of LD44, it is seen that in the interest of justice, the sanction for prosecution against A3 accorded. Any sanction order should disclose application of mind by the sanctioning authority. In this case, the sanctioning authority not arrived at such conclusion and arrived at satisfaction about A3 committed the offence and he is liable to be prosecuted. Added to it, from the facts of the case, it is seen that the act of A3 clearly requires sanction for prosecution under Section 197 Cr.P.C., which is not obtained in this case. Thus, in this case, there is no iota of evidence or material against A3 and the continuance of proceedings would amount to abuse of process of law. Further, due to change of Government and to tarnish A3's image and also to finish him of politically, the above case registered. Hence, he prayed for quashing of the proceedings against A3 in C.C.No.13 of 2019 and for setting aside the order of the trial Court, dated 04.12.2019.
9.Mr.Hasan Mohamed Jinnah, learned State Public Prosecutor appearing for the respondent in all the petitions, made his submissions, which are as follows:-
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(i)The learned State Public Prosecutor submitted that the evidence and materials collected during investigation prima facie shows that the A1 by virtue of his close proximity with the former Chief Minister of Tamil Nadu, had obtained TNHB plot in his name, under GDQ with the aid of A3, former Minister for Housing.He further submitted that there is no material to show that A3, personally satisfied that Al is eligible or qualified to get allotment under GDQ. On 18.03.2008, a copy of TNHB memo in Ref.No.Allot.1.3/31747/2005, dated 17.03.2008 was received in the office of the Executive Engineer/TNHB, Mogappair Division, regarding the allotment of plot under GDQ to A1 along with a copy of G.O.(2D).No.170, Housing and Urban Development Department, dated 10.03.2008. Based on the Government Order, the office note file, dated 18.03.2008 was prepared in M.R.A.No.4/01022 (Provisional Allotment Order) addressed to A1, by the Manager Marketing & Service, Mogappair Division, TNHB. In theprovisional allotment order, it was informed that the cost of the HIG plot No.1023 measuring 4370 sq.ft., was Rs.74,13,100/- and the deadline for the payment of the cost of the plot was fixed on 31.03.2008.Page No.27 of 60
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(ii)He further submitted that even before getting his provisional allotment order for the above allotment from the Mogappair Division of TNHB, A1 entered into JDAwith A2 on 16.03.2008 to developHIG plot No.1023 allotted to him under GDQ and thereby, violated condition No.5 of lease-cum-sale agreement, which reads ‘the lessee-the purchaser shall not be entitled to assign, sublet or part with the possession of the whole or any part of the property without the previous permission in writing from the lesser- vendor’. In this case, A1 entered into JDA on 16.03.2008, i.e., even before the issuance of provisional allotment order, by the TNHB. As per the JDA, it was decided that A1 would retain 15% of the above said plot as undivided share due to him, and his land promoter/A2, would get the remaining 85% of the undivided share of the plot. Further, the land promoter/A2 would pay Rs.74,13,100/- to A1 as a non-refundable deposit, which should be paid to TNHB towards the full cost of the above HIG plot No.1023. The cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch issued by A2 in favour of the Executive Engineer/ADO, TNHB, Mogappair Division was embodied in the JDA, dated 16.03.2008. These facts clearly establish that A1 in conspiracy with the other accused, had acquired the said plot from the Page No.28 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch TNHB under GDQ without any documentary evidence. He submitted that A1 was entrusted with the plot and he violated the condition No.5 as stated supra, which he made touching the discharge of such trust as defined in section 405 of IPC and made punishable under Section 409 of IPC.
(iii)He further submitted that A1 was issued with the provisional allotment order on 18.03.2008 for the above said plot, informing him to pay the cost of Rs.74,13,100/- before 31.03.2008 and the order was received by him on 19.03.2008.It is submitted that on 27.03.2008, A1 sent a letter to the Executive Engineer, TNHB, Mogappair Division enclosing cheque No. 178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch of A2 for Rs.74,13,100/-towards the cost of the plot. After receipt of payment, regular allotment order was issued to A1 on 28.04.2008 for the above plot, by the TNHB. On 07.08.2008, sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub-Registrar Office, Konnur, vide sale deed Document No.3544/2008.On 19.01.2009, A1 executed General Power of Attorney in favour of A2, which was registered as document No.245/2009 on 23.02.2009 at the Sub Registrar Office, Konnur. On 03.06.2009, A1 represented by his power agent A2 sold the above plot to one A.Kaliammalfor Page No.29 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch sale consideration of Rs.1,01,38,400/-, vide sale deed document No.1912 of 2009, dated 03.06.2009 at the Sub-Registrar Office, Konnur. A2 issued cheque bearing No.458228 for Rs.19,66,000/- in favour of A1 towards the sale price for 15% undivided share held by A1, which was deposited in the State Bank of India, K.K.Nagar Branch in his account on 20.07.2009. He further submitted that A1 purchased property measuring about 1131 sq.ft., from A2 on 20.04.2009, the property is situated at No.42-A, Bazar Street, First Cross, Nesapakkam, K.K.Nagar West, Chennai. The sale consideration for the property was Rs.13,70,000/- which was reportedly received by A2, through cheque from A2 as per the sale deed registered at Sub Registrar Office, Virugambakkam in document No.1594 of 2009. The sale had taken place on 22.04.2009. A1 issued cheque No.445136 of State Bank of India, K.K.Nagar Branch for Rs 13,70,000/- on 20.04.2009 to A2, but when he issued the cheque to A2, there was no fund in his account. Actually, this cheque was realized only on 24.07.2009, after A1 received the amount of Rs.19,66,000/- from A2. It is further submitted that A2 had actually paid Rs.19,66,000/- through cheque No.458228 of Karur Vysya Bank, Raja Annamalaipuram, Chennai, as per the conspiracy between them, which is reflected in the credit column for the date 17.07.2009 of the statement of account for Account Page No.30 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch No.10257194102 of State Bank of India, K.K.Nagar Branch, standing in the name of A1. The payment of Rs.13,70,000/- is also reflected in the debit column of the same account of A1 on 24.07.2009. This transaction is also reflected in the account of A2 in Karur Vysya Bank, Raja Annamalaipuram, Chennai.
(iv)He further submitted that A1 in pursuance of criminal conspiracy had received money from A2, by creating a JDA with her for getting the TNHB plot allotted to him under GDQ, sold the said property for a valid consideration, purchased the property situated at Nesapakkam, K.K.Nagar (West) from A2 herself. A1 stated in his application, dated 'NIL' for allotment of plot under public quota, that he was residing in a private accommodation on a higher rent and hence, he was requesting for allotment of TNHB plot, suppressing the fact that he was residing in Government accommodation for a meagre rent and latter corrected it as residing in Government accommodation. A1 was paying monthly rent of Rs.1,180/-only and dishonestly concealed the fact by claiming that he was paying higher rent for Government accommodation which is not true. The case was registered only after preliminary enquiry and following the procedures, as such there is no malafide Page No.31 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch as claimed by A1. Hence, he prayed for dismissal of the criminal revision filed by A1 confirming the order of the trial Court, dated 06.08.2015.
● Crl.R.C.No.983 of 2016:
(i)The learned State Public Prosecutor submitted that A1 was issued with the provisional allotment order in respect of HIG plot No.1023 on 18.03.2008 by the TNHB. Even prior to it, the Joint Development Agreement was entered on 16.03.2008 between A1 and A2, for which, the stamp papers purchased on 08.03.2007. Before getting the provisional allotment order and execution of sale deed by TNHB, entering into JDA for development of HIG plot No.1023 is in violation of the condition No.5 of lease-cum-sale agreement, which prohibits the allottee to assign, sub-let or part with the possession of the whole or any part with the property without permission in writing of TNHB. As per JDA, it was decided that A1 would retain 15% of the above said plot as undivided share due to him and land promoter/A2 would get the remaining 85% of the undivided share of the plot. As per JDA, A2 to pay Rs.74,13,100/- to A1 as a non-refundable deposit towards full cost of the above HIG plot No.1023. The cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch was issued by A2 in favour of the Page No.32 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Executive Engineer/ADO, TNHB, Mogappair division and the same also recorded in JDA, dated 16.03.2008. On 07.08.2008, the sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub Registrar Office, Konnur, vide sale deed in document No.3544 of 2008.
(ii)He further submitted that in pursuance to the conspiracy, A1 executed the power of attorney in favour of A2 on 23.02.2009, who in turn sold the said plot to one A.Kaliammal to the tune of Rs.1,01,38,400/- on 03.06.2009. Thereafter, A2 issued a cheque bearing No.458228 for Rs.19,66,000/- in favour of A1 towards the sale price of 15% undivided share. A1 issued the cheque No.445136 on 20.04.2009 for Rs.13,70,000/- to A2 for purchase of property at Nesapakkam, K.K Nagar West, Chennai, when he issued the cheque to her there was no sufficient fund in his account. Actually, this cheque was realized only on 24.07.2009 after he received the amount of Rs.19,66,000/- from A2. Thus, re-rooting the sale of property, A1 and A2 have conspired and abetted each other in commission of above offence. Hence, he prayed for dismissal of Crl.R.C.No.983 of 2016, confirming the order of the trial Court, dated 12.01.2016.
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(i)The learned State Public Prosecutor submitted that A3 entered into a criminal conspiracy with the other two accused and allotted HIG plot No.1023, MogappairEri Scheme, TNHB, Chennai, under GDQ in thename of A1. A2 in the course of such transaction conspired to commit the offence of cheating by entering into JDA for sale even prior to the allotment in the name of A1 to obtain pecuniary advantage and cheated the Government. A3 abetted A1 and A2 in committing criminal breach of trust by violating the conditions and in pursuance of such conspiracy,A3 committed the above said offences under Sections 120(B), 420,409 IPC r/w 109 of IPC along with Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. He further submitted that A3 received application, dated Nil from A1, who was working as a Personal Security Officer to the former Chief Minister of Tamil Nadu, stating that his family was residing in Government accommodation paying exorbitant monthly rent and he had requested A3 for allotment of TNHB plot under GDQ, without enclosing any supporting documentary evidence. Further, the petition of A1 did not bear any seal or signature of any officer, for having received the petition. It was numbered as 5732/HB-5(1)/08 on 06.03.2008 in the Housing and Urban Development Department and the Office note on the Page No.34 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch same day was initiated by TNHB with recommendation for allotment of HIG plot No.1023, under GDQ in the category of impeccable honest Government Servant to A1. It was signed by LW5-Sellamuthu, in the capacity of Secretary, Housing and Urban Development Department, Chennai on 07.03.2008 and approved by A3 on 10.03.2008. The HIG plot No.1023, MogappairEri Scheme was allotted to A1 under GDQ in the category of impeccable honest Government Servant, vide G.O.(2D)No.170, Housing and Urban Development (H.G.5(1)) Department, dated 10.03.2008.
(ii)It is submitted that A3 by abusing his power as a Minister for Housing allotted the above said plot without following any procedure and in violation of conditions to A1, for the reason A1 was having close proximity with the former Chief Minister of Tamil Nadu under GDQ. The note for allotment of the above said plot was initiated on the instructions of A3, who was the Former Minister, who allotted the above said plot under GDQ in the category of Impeccable Honest Government Servant to A1, though A1 neither asked under GDQ nor claimed as an Impeccable Honest Government Servant.
The trial Court rightly considered the statements of the witnesses and documents submitted by the Investigation Officer under Section 173(2) Page No.35 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Cr.P.C., and found that there is a prima facie case against A3 and dismissed the petition. He further denied the contention of A3 that there is neither any direct evidence nor circumstances available to infer a conspiracy between A3 and other accused. In this case, A3 facilitated the commission of the offence by A1 by allotting the plot without following procedure. It is settled law that the criminal conspiracy can be inferred by the previous and subsequent conduct of the accused and A3 without any basis made endorsement and directed the authority to allot the plot to A1. The materials submitted by the prosecution clearly established the link between A3 and A1 and the nexus between them.
(iii)He further submitted that the trial Court rightly considered the final report which disclosed a prima facie case and hence dismissed the petition. A1 enjoying close proximity and nexus with the former Chief Minister, ensured that TNHB plot in a prime location, was allotted in his name, under GDQ, by giving false information, as if he was in need of a plot to reside with his family, but the same was secured only with an intention to sell and to acquire more money as pecuniary advantage than that of the money to be paid to TNHB by the allottee. The witnesses Tr.Sellamuthu and Page No.36 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Tr.K.N.KrishnasamyRao, the then Secretary and Joint Secretary to Government, H&UD Department clearly state that the allotments were made only on the oral orders of A3, who was the then Minister for Housing. Thus, A3 facilitated the commission of offence by the other accused in this case by abusing his power as the Minister, a public servant which is nothing but criminal misconduct as per the Prevention of Corruption Act, 1988. Hence, he prayed for dismissal of this Criminal Revision confirming the order of the trial Court, dated 06.07.2016.
● Crl.O.P.No.34130 of 2019:
(i)The learned State Public Prosecutor submitted that A3 received application, dated nil from A1, who was working as Personal Security Officer to the former Chief Minister of Tamil Nadu, stating that his family was residing in government accommodation paying an exorbitant monthly rent and he requested A3 for allotment of TNHB plot under Public Quota, without enclosing any supporting documentary evidence. The petition did not bear any seal or signature of any officer, for having received the petition. It was numbered as 5732/HB-5(1)/08 on 06.03.2008 in the Housing and Urban Development Department and the Office note on the same day was initiated Page No.37 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch with recommendation for allotment of vacant HIG plot No.1023 under GDQ in the category of impeccable honest Government Servant to A1 and it was signed by R.Sellamuthu, the Secretary, Housing and Urban Development Department, Chennai on 07.03.2008 and approved by A3 on 10.03.2008. The HIG plot No.1023, MogappairEri Scheme was allotted to A1 under GDQ in the category of impeccable honest Government Servant, vide G.O.(2D)No.170, Housing and Urban Development (H.G.5(1) Department, dated 10.03.2008. Even before getting his provisional allotment order for the above allotment, A1 entered into JDA with A2 on 16.03.2008 to develop the HIG plot No.1023 allotted to him under GDQ and thereby violated condition No.5 of Lease-cum-sale agreement, which reads the ‘lessee-the purchaser shall not be entitled to assign, sub-let or part with the possession of the whole or any part of the property without the previous permission in writing from the lesser-vendor’. By retaining 15% of the above said plot as undivided share due to him, and giving away 85% to the undivided share of the plot, A2 agreed to pay Rs.74,13,100/- to A1 as a non-refundable deposit and she paid the said amount to TNHB towards the full cost of the above HIG plot No.1023, by cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch in favour of the Executive Engineer/ADO, TNHB, Mogappair Page No.38 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Division. This process has been mentioned in the JDA, dated 16.03.2008, which would clearly prove the conspiracy between A2 and A1.
(ii)He further submitted that A1 was issued with the provisional allotment order on 18.03.2008 for the above plot, informing him to pay the cost of Rs.74,13,100/- before 31.03.2008 and the order was received by him on 19.03.2008. On 27.03.2008, A1 sent a letter to the Executive Engineer, TNHB, Mogappair Division enclosing cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch of A2 for Rs.74,13,100/- towards the cost of the plot. After the receipt of the payment on 28.04.2008, regular allotment order was issued to A1 for the above plot, by the TNHB. On 07.08.2008, the sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub-Registrar Office, Konnur, vide Document No.3544/2008. On 19.01.2009, A1executed General Power of Attorney in favour of A2, which was registered as document No.245 of 2009 on 23.02.2009 at the Sub-Registrar Office, Konnur. On 03.06.2009, A1 represented by his power agent A2 sold the above plot to A.Kaliammal for a sale consideration of Rs.1,01,38,400/- vide document No.1912 of 2009, dated 03.06.2009 at the Sub-Registrar Office, Konnur. A2 issued a cheque bearing Page No.39 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch No.458228 for Rs.19,66,000/- in favour of A1 towards the sale of 15% undivided share held by A1 which was deposited in the State Bank of India K.K.Nagar Branch of A1 on 20.07.2009. The office note for allotment of the above said plot was initiated only on the instructions of A3, who was then Minister for Housing and Urban Development who had allotted the above said plot under GDQ in the category of Impeccable Honest Government Servant to A1 though he had neither asked under GDQ nor claimed as an Impeccable Honest Government Servant. At the time of commission of the offences, A3 was the Minister for the concerned department and was a public servant and it is well settled law that committing the offences of cheating and criminal breach of trust are not the duties of a public servant and such sanction is not necessary. At the time of filing the case, A3 was a Member of Legislative Assembly as such he could be removed from his office by the Speaker of the Assembly and hence, the Speaker of the Assembly accorded sanction for prosecuting A3 as per the power granted under Section 19(1)(c) of the Prevention of Corruption Act, 1988 and the same was filed along with the Police report. Hence, the points raised by the learned Senior Counsel for A3 is on factual aspects, which are to be decided only during trial and not in this Quash Petition.
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10.This Court considered the submissions made by the learned Senior Counsel appearing for the accused and the learned State Public Prosecutor appearing for the respondent and perused the entire materials available on record.
11.In this case, A1-C.Ganesan was the Inspector of Police, SB-CID Security (Core Cell), Chennai, A2-K.Padma is a Promoter of properties who entered into JDA with A1 and A3-Former Minister for Housing between the year 2007 and 2011. Initially, when the case in C.C.No.19 of 2013 was pending before the learned Special Judge, Special Court for the Cases under the Prevention of Corruption Act, 1988, Chennai, the accused A1 to A3 herein, filed discharge petitions in Crl.M.P.No.882 of 2013, 366 of 2016 & 1184 of 2015 in C.C.No.19 of 2013. The learned Special Judge, by orders, dated 06.08.2015, 06.07.2016 & 12.01.2016, dismissed all the petitions, against which, Crl.R.C.Nos.1112 of 2015 and 957 & 983 of 2016 filed which are under challenge.
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12.Since A3 was the Minister at the relevant period, the case in C.C.No.19 of 2013 was transferred to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Members of Legislative Assembly, Singaravelar Maligai, Chennai and renumbered as C.C.No.13 of 2019. During the pendency of trial, A3 filed Crl.O.P.No.34130 of 2019 challenging the proceedings against him.
13.In this case, during the relevant period, A1 was the Personal Security Officer to the Former Chief Minister of Tamil Nadu. During A1's period of service, he had no adverse remarks, his service and conduct are not of questionable one. It is not in dispute that A1 made application for allotment for housing plot to the then Chief Minister of Tamil Nadu and not to A3, the then Minister for Housing. Though the application/LD4 of A1 did not bear any seal or signature of any officer, it is part of the Secretariat file No.5732/HB-5(1)/08-H & UD. Based on the application of A1, the office note file/LD5 was prepared by one Premabhai, Section Officer on 06.03.2018, scrutinized by LW6-K.N.Krishnasamy Rao, Joint Secretary, Housing and Urban Development Department and signed by LW5-R.Sellamuthu, the then Secretary, Housing and Urban Development Department on 07.03.2008, Page No.42 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch finally, it was placed before A3 for concurrence and approval. On 10.03.2008, A3 concurred and approved the recommendation of the Secretary and other officials, who all signed in the file. Finally, LW5 issued the Government order in G.O.(2D)No.170, Housing and Urban Development Department (H.G.5(1)) Department, dated 10.03.2008, allotting HIG plot No.1023 to A1 under GDQ. A3 concurred and approved the note file. Following the Government order in G.O.(2D)No.170, Housing and Urban Development Department (H.G.5(1)) Department, dated 10.03.2008, provisional allotment order, dated 18.03.2008 in MRA.No.4/01022 addressed to A1 indicating the sale price and by 31.03.2008, the amount to be deposited. After receipt of payment towards sale consideration, on 28.04.2008, regular allotment order was issued to A1 for the above said plot by TNHB. On 07.08.2008, sale deed executed in the name of A1 by the Executive Engineer/TNHB in the Sub Registrar Office, Konnur, vide sale deed in document No.3544 of 2008.
14.Admittedly, the application of A1 seeking plot under GDQ, is addressed to the then Chief Minister of Tamil Nadu. LW5, the then Secretary, Housing and Urban Development Department handed over the application of A1 to the concerned Section Officer to be processed. LW3-K.Hemalatha, the Page No.43 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch then Section officer, LW4-Nepoleon, Former Joint Secretary, LW5- R.Sellamuthu, Former Secretary and LW6-K.N.Krishnasamy Rao, Former Joint Secretary of Housing and Urban Development Department stated the fact of processing the application of A1 seeking allotment of plot under GDQ. The statement of LW3 is that it was LW6, who exclusively handled the papers and files pertaining to plots under GDQ, on the instructions of LW6, she used to put up the note file pertaining to allotment of plot under GDQ. LW5 and LW6 stated A3 used to give oral instructions in allotment of plots under GDQ.
15.In this case, the sanction order of the competent authority passed on coming to the conclusion that A3 actively taken part in commission of offence. Added to it, after approval of A3, LW5 issued G.O.(2D)No.170, Housing and Urban Development Department (H.G.5(1)) Department, dated 10.03.2008 allotting HIG plot No.1023 to A1 directing the Chairman and Managing Director of TNHB to follow the guidelines issued in G.O.(Ms)No.88, dated 20.05.2003 to verify and satisfy the credentials of the applicants/allottees before issuing allotment order. LW5 sent the above said Government order along with the application of A1 to the Chairman and Managing Director of TNHB. Added to it, recently, the Principal Secretary to Page No.44 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Government, Housing and Urban Development Department, Secretariat, Chennai issued letter No.14127/HB3(1)/2016-19, dated 28.09.2021 to the Director of Vigilance and Anti Corruption, Chennai, referring G.O.(Ms.)No.29, Housing and Urban Development Department, Chennai, reiterating the principles in G.O.(Ms)No.88, dated 20.05.2003, which gives clear instructions regarding verification of the individual as social worker under GDQ and checking to be done by the concerned Executive Engineer and the concerned Administrative Officer of the TNHB before issuance of the allotment order.
16.The contention of A3 is that the note file seeking allotment under GDQ for A1 was put up by the officials of the Housing and Urban Development Department and the same was approved by the Minister, which cannot be looked in isolation. The witnesses LW5, Former Secretary of Housing and Urban Development Department and LW6, the then Joint Secretary to Housing and Urban Development Department stated that it was on the oral instruction of A3, the note file for allotment of plot to A1 under GDQ generated, which cannot be lost sight. These facts to be seen and considered during trial. Added to it, the other contention of A3 that after Page No.45 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch issuance of Government Order, further verifying the credentials of the applicants whether they come under GDQ eligibility criteria rest with officials of TNHB, cannot be countenanced. Presently this may be the defence of A3 necessarily to be decided during trial. Since A3 was the Minister for Housing, public duty cast on him to discharge his work in the interest of the state. In this case, A3 during the relevant period allotted plots under GDQ and not discharged his public duty, which is proved from the manner in which GDQ allotments made. This fact cannot be viewed in isolation. A3 as then Minister for Housing, allotted plots to the person, who was proximate to the then Chief Minister. Hence, failed in his duty, which will be an offence under the Prevention of Corruption Act, 1988.
17.The cases registered under the Prevention of Corruption Act, 1988 is of serious in nature. It destroy the very moral and faith of the common man in the system. It is well settled that criminal trial to be conducted and concluded at the earliest, the offences under Prevention of Corruption Act are offences which affect not only concerned with the accused but the entire society. Page No.46 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch
18.As regards the case against A1 and A2 is concerned, it is seen that A1 made application for allotment of plot under GDQ to the then Chief Minister of Tamil Nadu on 06.03.2008 and it was processed by LW5, Former Secretary of Housing and Urban Development Department on 07.03.2008 and approved by A3, the then Minister for Housing on 10.03.2008. On the same day i.e., on 10.03.2008, the Government issued G.O.(2D).No.170, Housing and Urban Development Department allotting HIG plot No.1023, Mogappair Eri Scheme to A1. Based on the Government Order, the provisional allotment order, dated 18.03.2008 was prepared in MRA.No.4/01022 and addressed to A1 calling upon A1 to pay the sale price on or before 31.03.2008. Even before getting provisional allotment order for the above allotment from the Mogappair Division of TNHB, A1 entered into a Joint Development Agreement (JDA) with A2 on 16.03.2008 to develop the TNHB HIG plot No.1023 allotted to him under GDQ and thereby, violated the condition No.5 of Lease-cum-Sale Agreement, wherein the specific prohibition is that without the previous permission in writing from the lessor-vendor (TNHB), the purchaser shall not be entitled to assign, sub-let or part with the possession of the whole or any part of the property. As per JDA, A2 to pay Rs.74,13,100/- to A1 as a non-refundable deposit towards full cost of the above HIG plot Page No.47 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch No.1023. The cheque No.178476, dated 24.03.2008 of IndusInd Bank, Anna Nagar Branch issued by A2 in favour of the Executive Engineer/ADO, TNHB, Mogappair division and the same also recorded in JDA, dated 16.03.2008.
19.It is also seen that on 27.03.2008, A1 sent a letter to the Executive Engineer, TNHB, Mogappair Division enclosing the above said cheque towards the cost of plot. After receipt of payment on 28.04.2008, the regular allotment order was issued to A1 for the above said plot by TNHB. On 07.08.2008, the sale deed was executed in the name of A1 by the Executive Engineer/TNHB in the Sub Registrar Office, Konnur, vide sale deed in document No.3544 of 2008. On 19.01.2009, A1 executed the General Power of Attorney in favour of A2, which was registered as document No.245 of 2009 on 23.03.2009 at Sub Registrar Officer, Konnur. On 03.06.2009, A2 being the power of attorney of A1, sold the above plot to one A.Kaliammal for sale consideration of Rs.1,01,38,400/-, vide sale deed in document No.1912 of 2009, dated 03.06.2009 at the Sub Registrar Office, Konnur. On the profit earned by A2 on the sale of A1 plot, A2 issued a cheque No.458228 for Rs.19,66,000/- in favour of A1 towards the sale of 15% undivided share held by A1 and the same was deposited in the State Bank of India, K.K.Nagar Page No.48 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch Branch, Chennai in the account of A1 on 20.07.2009. Thereafter, utilizing this amount, A1 purchased another property comprising 1131 sq.ft at Bazar Street, Nesapakkam, K.K.Nagar West, Chennai from A2 on 20.04.2009. Thereafter, A1 issued a cheque No.445136 for Rs.13,70,000/- on 20.04.2009 to A2 and when he issued the cheque to her, there was no sufficient fund in his account. The cheque was realized only on 24.07.2009 after A1 received his 15% share of Rs.19,66,000/- from A2 in sale of plot No.1023. Thus, A1 and A2, right from initial stage, were together devising a scheme, whereby JDA entered between them, which is even before the provisional allotment order being issued by the TNHB. The contention that the date of JDA may not have significance oversight wrongly written cannot be accepted. Further, the particulars in the JDA, dated 16.03.2008 are true and there is no dispute with regard to the contents in the JDA and further acted accordingly. This explanation cannot be taken as such, it is to be decided only during trial by way of examination of witnesses and verification of documents and the evidence let in.
20.Likewise, the defence of A1 is that the Deputy Inspector General of Police, Intelligence, Chennai in Na.Ka.No.D1/SEC/1939/2008, dated Page No.49 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 16.04.2009 and 21.04.2009 conducted enquiry on the purchase of HIG plot No.1023 from TNHB and verified all the documents and accepted the explanation of A1 in purchase of the said plot and permitted A1 to have agreement with A2 and thereafter, disposal of the property and used the said amount to purchase the property may not be relevant for the purpose of this case. The enquiry conducted by the Deputy Inspector General of Police, Intelligence, Chennai is with regard to the Service and Conduct Rules, which has no relevance for the charges facing by A1 and A2. These documents does not form part of records of the final report.
21.The bank transactions of A1 and A2 are recorded by way of documents, which clearly shows that there is complicity between A1 and A2 in dealing with the plot right from the date of its allotment under GDQ. Pursuant to the transaction and execution of documents as stated above, A1 and A2 made wrongful gain. Thus, by giving false information that as if he in is need of plot to reside with his family, A1 got allotment of HIG plot No.1023 under GDQ, but the same was secured only with an intention to sell and to earn more money with the help of A2.
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22.In this case, there are prima facie sufficient materials, by way of statement of witnesses and documents, pointing towards all the accused. The Hon'ble Apex Court in plethora of decisions, had held that the primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record is not to be gone into. Recently in the case of “State through Deputy Superintendent of Police Versus R.Soundirarasu etc., reported in 2022 LiveLaw (SC) 741”, the Hon'ble Apex Court had held under what circumstances, the discharge petition can be entertained. The relevant portion is extracted hereunder:-
“69.The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.
70.The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna Page No.51 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 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 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 Page No.52 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 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 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 Page No.53 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 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 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 Page No.54 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.
SPOPE OF EXCERICSE OF REVISIONAL POWER AT THE STAGE OF CHARGE
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 Page No.55 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch 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 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.”
23.From the decision cited above, it could be seen that the revisional 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 taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused have been charged. In this case, on consideration of the statement of the witnesses and documents produced by the prosecution, this Court finds that there are sufficient ground for proceeding against all the accused. The circumstances emerging from the record of the case, confirmed the involvement of the accused. Added to it, they also face charge of conspiracy which has to be necessarily decided only during trial. It is a Page No.56 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch known fact that the conspiracy are hatched in secrecy, for which, there may not be direct evidence which has to be inferred, which is a matter of fact to be decided during trial. Hence, they cannot be discharged from the case in C.C.No.13 of 2019, pending on the file of the Additional Special Court for Cases Related to Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai.
24.In the result, the orders, dated 06.08.2015 & 12.01.2016, made in Crl.M.P.Nos.882 of 2013 & 1184 of 2015 in C.C.No.19 of 2013, respectively, by the learned Special Judge, Special Court for Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai are confirmed. Accordingly, Crl.R.C.Nos.1112 of 2015 and 983 of 2016 filed by A1 and A2 stand dismissed.
25.In this case, A3 was a public servant, who was clothed with public duties to discharge duty in the interest of state. But in this case, it is not done. The corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices lightly. Recently, in the case of Page No.57 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch “P.Dharmaraj Versus Shanmugam & Ors., in Special Leave Petition (Crl.)No.1354 of 2022”, held as follows:-
“44. It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. Therefore we hold that the High Court was completely in error in quashing the criminal complaint.”
26.In the light of the above decision and considering the fact the trial where the offences under the Prevention of Corruption Act, 1988 have to be conducted and concluded, this Court is not inclined to quash the proceedings in C.C.No.13 of 2019 against A3 and also not inclined to interfere with the order, dated 06.07.2016 made in Crl.M.P.No.366 of 2016 in C.C.No.19 of 2013 by the learned Special Judge, Special Court for the cases under Prevention of Corruption Act, Chennai and the same is, hereby, confirmed. Accordingly, both Crl.R.C.No.957 of 2016 and Crl.O.P.No.34130 of 2019 filed by A3 stand dismissed.
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27.It is made clear that the observations made herein are only for the limited purpose in deciding the above petitions. The trial Court uninfluenced with the observations made herein to proceed with the trial against A1 to A3 on its own merits during trial. Consequently, the connected Miscellaneous Petitions are closed.
11.11.2022 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Special Court for the Cases under the Prevention of Corruption Act, 1977, Chennai.
2.The Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Members of Legislative Assembly, Singaravelar Maligai, Chennai.
3.The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Chennai.
4.The Public Prosecutor, High Court, Madras.
Page No.59 of 60 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1112 of 2015 and batch M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY ORDERS IN Crl.R.C.Nos.1112 of 2015 and 957 & 983 of 2016 and Crl.O.P.No.34130 of 2019 11.11.2022 Page No.60 of 60 https://www.mhc.tn.gov.in/judis