Madras High Court
Mrs.Dharmadevi vs / on 11 October, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.Nos.1234,1263 & 1312 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 29.09.2022 Pronounced on : 11.10.2022
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.Nos.1234,1263 & 1312 of 2015
Crl.R.C.No.1234 of 2015
Mrs.Dharmadevi, ... Petitioner/Accused-1
/versus/
State Rep. by
Inspector of Police,
Valathy Police Station,
Villupuram District. ... Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 read with 401 of
Cr.P.C., to call for the records from the Learned II Additional District and
Sessions Judge, Tindivanam, dated 03.11.2015 in C.A.No.14 of 2013 and set
aside the order of conviction and sentence made in C.C.No.125 of 2011 on the
file of the Learned Judicial Magistrate at Gingee.
For Petitioner : Mr.S.Ananthanarayanan, Sr.Counsel, for
Mr.G.Balaji Venkateswaran.
For Respondent : Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
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Crl.R.C.Nos.1234,1263 & 1312 of 2015
Crl.R.C.No.1263 of 2015
Anbu,
S/o.P.Pandurangan ... Petitioner/Accused-2
/versus/
State Rep. by
Station House Officer,
Valathy Police Station,
Gingee Taluk,
Villupuram District.
(Crime No.97/2011) ... Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 read with 401 of
Cr.P.C., to set aside the judgment dated 03.11.2015 made in C.A.No.14 of
2013, on the file of II Additional District and Sessions Judge, Tindivanam
confirming judgment of conviction dated 11.01.2013 made in C.C.No.125 of
2011, on the file of the Learned Judicial Magistrate, Gingee and acquit the
petitioner.
For Petitioner : Mr.S.Ananthanarayanan, Sr.Counsel, for
Mr.R.Thanjan.
For Respondent : Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
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Crl.R.C.Nos.1234,1263 & 1312 of 2015
Crl.R.C.No.1312 of 2015
Mrs.Amudha, ... Petitioner/Accused-5
/versus/
State Rep. by
Inspector of Police,
Valathi Police Station,
Gingee Taluk,
Villupuram District. ... Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 read with 401 of
Cr.P.C., to set aside the order of conviction and sentence made in C.C.No.125
of 2011, on the file of the Learned Judicial Magistrate at Gingee and confirmed
in Criminal Appeal No.14 of 2013 on the file of the II Additional District and
Sessions Judge at Tindivanam and pass order.
For Petitioner : Mr.S.Ananthanarayanan, Sr.Counsel, for
Mr.Nandhie Devhan
For Respondent : Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
COMMON ORDER
These three Criminal Revision Petitions are filed by A-1, A-2 and A- 5 in C.C.No.125/2011, on the file of the Learned Judicial Magistrate, Gingee, challenging the judgment of the Learned II Additional District and Sessions Judge, Tindivanam in Crl.A.No.14/2013, confirming the judgment of the Page Nos.3/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 conviction and sentence passed by the Judicial Magistrate, Gingee.
2. The case of the prosecution in brief:-
Between 19/06/2009 and 11/11/2010, the first petitioner was the Elected President of Iyangunan Panchayat. The second petitioner was its Vice- President. The third petitioner was the Makkal Nala Paniyalar (Public Welfare Worker). Based on complaint received from an Advocate by name Singaram alleging the President of Iyangunan had obtained a card under MGNREGA scheme and received wages, enquiry was conducted by the Assistant Project Officer Mr.Jayabalan. In his report, irregularities in maintaining the Registers under MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act), 2005 and misappropriation of Rs.5,140/- paid by fabricating the attendance register was found.
3. Alleging that, the first petitioner and two other accused, by fabricating work card but without working, paid Rs.5,140/- as wages to the first accused (Dharmadevi), thus committed Criminal breach of trust. The other two Page Nos.4/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 petitioners Anbu (second accused) as Vice-President and Amutha (fifth accused) as Makkal Nala Paniyalar, along with two others Padmanaban (third accused) and Mathialagan (fourth accused) who were working as Assistants in the Panchayat Office by fabrication of documents facilitated the misappropriation. Also, A-3 and A-4, unauthorisedly deducted wages of the beneficiaries, for the local tax and Cable TV subscriptions. Thus, alleging they committed breach of trust, fabrication of documents and misappropriation by contravening the provisions of MGNREGA Scheme, complaint was filed by the Block Development Officer to the Valathy Police. The F.I.R in Crime No.97/2011 dated 11/06/2011 was investigated and Final Report against 5 persons including these three revision petitioners was filed and taken cognizance by the trial Court. Charges under Sections 409, 471 and 477-A I.P.C were framed and tried.
4. To substantiate the charges 7 witnesses and 23 documents relied by the prosecution. The trial Court vide judgment dated 11/01/2013 held A-3 and A-4 not guilty of the charges. Found A-1, A-2 and A-5 guilty of charges and convicted them as below:-
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https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 Accused Sections Conviction and Sentence passed by the trial Court Dharmadevi, (A1) 409 of I.P.C To undergo 2 years imprisonment with fine Anbu (A2) of Rs.6000/- each, in default 3 months Amutha (A5) imprisonment.
Dharmadevi, (A1) 471 of I.P.C To undergo 2 years imprisonment Anbu (A2) Amutha (A5) Dharmadevi, (A1) 477 (A) of I.P.C To undergo 2 years imprisonment Anbu (A2) Amutha (A5) The period of substantive sentence ordered to run concurrently.
5. The appeal in C.A.No.14/2013, came to be dismissed vide order dated 03/11/2015. Hence, the present revision petitions.
6. The Learned Senior Counsel appearing for the revision petitioners, submitted that under MGNREGA, 2005 there is no legal bar for the Panchayat President to be one of the beneficiary under the Scheme. The alleged fabrication of document not proved in the manner known to law. The documents alleged to have been forged not marked through witness competent to speak about it. P.W-2, Project Officer, who conducted enquiry as directed by the District Collector on receipt of the complaint from Singaram (P.W-5), had Page Nos.6/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 marked Ex.P-4 to Ex.P-20. He has not deposed what, how and by whom the alleged fabrication in those documents made. He has neither explained in which cheque A-2 signed nor the attendance register Ex.P.-5 which was in custody of A-5 and responsible to maintain as Makkal Nala Paniyalar. P.W-2 had admitted in the cross examination that, he did not enquire the persons whose names are deleted or corrected in the Attendance Register. He admits that the post of Panchayat President is an Honorarium post and he is not paid salary. P.W-3, The Assistant Block Development Officer, who claims to have accompanied P.W-2 during enquiry, admits in the cross examination that he is not aware of the content of the statement given by witnesses to P.W-2 during the enquiry. He admits in the cross examination that he had not perused the complaint documents. Singaram, an Advocate by Profession, who caused notice to the District Collector on behalf of his client Sampath (P.W-6) was examined as P.W-5. Both the client and his Lawyer who caused notice admit that he did not enquire the beneficiaries of the scheme in that village. They were not able to show the provision of law and Act which prohibits Panchayat President being a worker in MGNREGA Act. These two witnesses namely Singaram (P.W-5) and Sampath (PW-6) are not beneficiaries of the Scheme. Page Nos.7/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 Except these two witnesses no other witness from the village examined. P.W-7, the Inspector of Police who filed the Final Report admits in the cross examination that he did not mentioned any specific overt act for each of the accused. He did not examine the villagers whose name in the attendance register corrected/altered or manipulated and had filed the Final Report alleging the attendance register fabricated and money misappropriated.
7. Pointing out the above lacunae in the prosecution case, the Learned Senior Advocate for the petitioners contended that the Courts below contrary to the settled Principles of Law had convicted the petitioners which is per se perverse and liable to be set aside.
8. Per contra, the Learned Government Advocate (Crl.Side) for the respondent, submitted that, A-1 is the Panchayat President and A-2, the Vice President. The wages for the MGNREGA Scheme has to be paid through the Makkal Nala Paniyalar i.e., A-5. In her presence, the beneficiaries should sign the attendance and her responsibility is to supervise the execution of the work. The money for payment of the wages has to be drawn by cheque to be signed Page Nos.8/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 by the President (A-1) and the Vice-President (A-2). Therefore, the President and Vice-President of Panchayat, are public servant within the meaning of Section 21 of I.P.C, though not paid any salary, however as elected representative of the Village they both have duty to take, receive, keep or expand any property, to make any survey or assessment or to levy any rate of tax for any secular, common purpose of the Village and to make, authenticate or keep any document for and ascertaining of the rights of the people of the Village. The explanation 1 of the Section 21 of I.P.C also makes clear that persons who falls under any of the description mentioned in (i) to (xii) are PUBLIC SERVANTS whether appointed by the Government or not. Receipt of salary or remuneration or honorarium is not the testing criteria for a public servant.
9. Therefore, in this case, the first accused has not denied the receipt of wages under the scheme. Neither the second accused, who is responsible to draw money from the bank and disburse salary deny that Rs.5,140/- paid as wages to the President (A-1) under the scheme nor the A-5 deny that she allowed A-1 to sign the attendance register to enable him to get the wages. By Page Nos.9/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 virtue of the Office held by A-1, he is ineligible to be a card holder under the MGNREGA Scheme. Therefore, prayed the conviction and sentence has to be confirmed since no error of law in the judgment impugned to interfere under Section 397 r/w 401 Cr.P.C
10. Heard the Learned Senior Counsel for the petitioners and the Learned Government Advocate (Crl.Side) for the respondent. Records perused.
11. The Learned Senior Counsel for the petitioners mainly contended that the object of the MGNREGA scheme is to provide to every household whose adult members volunteer to do unskilled manual work not less than 100 days of such work in a financial year in accordance with the scheme made under the Act. In the said Act, there is no prohibition for an elected representative of the said Village to be a Job Card Holder. Secondly, he contended that there is no reliable evidence to prove that A-1 (Dharmadevi) did not work on the days she received wages. The fabrications alleged not established in the manner known to law. Reliance on Ex.P-2 to Ex.P-17 which is the attendance registers and Ex.P-18 to Ex.P-21 the registers maintained for Page Nos.10/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 receipt of applications and issuance of Job Card, without examining the persons mentioned in it, is perverse and patent error in appreciation of evidence. Likewise, the content in Ex.P-22 which is the enquiry report submitted by P.W- 2, is based on assumption and without proper enquiry with the persons concern.
12. Regarding the first limb of the submission, it is to be noted that the MGNREG Act, 2005 is designed to provide rural employment and to guarantee every household adult members in the Village for atleast 100 days work. For that purpose, the Programme Officer empowered to frame scheme in consultation with the Grama Panchayats. The responsibilities of the Gram Panchayats is enumerated under Section 16 of the Act which reads as below:-
Section 16:- Responsibilities of the Gram Panchayats-
(1) The Gram Panchayat shall be responsible for identification of the projects in the Gram Panchayat area to be taken up under a Scheme as per the recommendations of the Gram Sabha and the Ward Sabhas and for executing and supervising such works.
(2) A Gram Panchayat may take up any project under a Page Nos.11/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 Scheme within the area of the Gram Panchayat as may be sanctioned by the Programme Officer.
(3) Every Gram Panchayat shall, after considering the recommendations of the Gram Sabha and the Ward Sabhas, prepare a development plan and maintain a shelf of possible works to be taken up under the Scheme as and when demand for work arises.
(4) The Gram Panchayat shall forward its proposals for the development projects including the order of priority between different works to the Programme Officer for scrutiny and preliminary approval prior to the commencement of the year in which it is proposed to be executed.
(5) The Programme Officer shall allot at least fifty per cent. of the works in terms of its cost under a Scheme to be implemented through the Gram Panchayats.
(6) The Programme Officer shall supply each Gram Panchayat with (a) the muster rolls for the works sanctioned to be executed by it; and (b) a list of employment opportunities available elsewhere to the residents of the Gram Panchayat.
(7) The Gram Panchayat shall allocate employment Page Nos.12/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 opportunities among the applicants and ask them to report for work.
(8). The works taken up by a Gram Panchayat under a Scheme shall meet the required technical standards and measurements.
13. The Gram Panchayats are represented through its President and Vice President. Therefore, a person who is entrusted with the responsibility to forward proposals for the development projects under the Act and employ workers for execution of the project cannot himself be the employee also. Being entrusted with the fund to execute the project through eligible card holders, he cannot be part of the project and claim money allotted for the project. Under the Act, as a member of an house hold, he may be eligible to hold a Job Card, but as a President of the said Gram Panchayat, being elected to Represent the Gram Panchayat, he is part of the decision making body regarding proposal and finalisation of the project as well as spending of the Fund allotted under the Act. Therefore he cannot make gain out of his own decision.
14. However, to hold a person guilty of offence under Section 409 of Page Nos.13/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 I.P.C., the breach should have been committed with the dishonest intention. Section 405 of I.P.C defines Criminal breach of trust as under:-
405. Criminal breach of trust:-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
Section 409 of I.P.C prescribes punishment for criminal breach of trust by Public Servant or banker, merchant or agent.
15. In this case, though there is material to conclude there was breach of trust, the said breach is not driven by any dishonest intention. There is no evidence to prove, A1 was paid wages without working or documents were forged to pay wages to A1. Further, there is also no proof beyond doubt to hold accounts were falsified wilfully to defraud to attract offences under Section 471 Page Nos.14/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 or 477-A of I.P.C.
16. The ignorance of law had prompted A1 to take up the job under the Scheme. In the absence of evidence contrary to the record, it has to be presumped that she worked to gain the wages of Rs.5,140/- though she is not entitled to take up the job in her own Panchayat.
17. As a result, these Criminal Revision Petitions are Allowed. The petitioners are acquitted by setting aside the judgment of the Courts below. Fine amount paid ordered to be refunded to the petitioners/accused.
11.10.2022
Index : Yes.
Internet :Yes.
bsm
To,
1. The Learned II Additional District and Sessions Judge, Tindivanam.
2. The Learned Judicial Magistrate, Gingee,
3. The Inspector of Police, Valathy Police Station, Gingee Taluk, Villupuram District.
4. The Public Prosecutor, High Court, Madras.
Page Nos.15/16 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1234,1263 & 1312 of 2015 Dr.G.Jayachandran, J bsm Pre-Delivery common order made in Crl.R.C.Nos.1234,1263 & 1312 of 2015 11.10.2022 Page Nos.16/16 https://www.mhc.tn.gov.in/judis